as Borrower
acting as Arranger
acting as Facility Agent
acting as Security Agent
1. DEFINITIONS AND INTERPRETATION | 1 | |||
2. CREDIT FACILITY | 12 | |||
3. PURPOSE | 12 | |||
4. CONDITIONS OF UTILIZATION | 12 | |||
5. UTILIZATION IN THE FORM OF LOANS | 13 | |||
6. REPAYMENT | 14 | |||
7. PREPAYMENT AND CANCELLATION | 14 | |||
8. INTERST | 18 | |||
9. INTEREST PERIODS | 19 | |||
10. BREAK COSTS AND ALTERNATIVE INTEREST CALCULATION | 20 | |||
11. FEES | 21 | |||
12. TAXES | 21 | |||
13. INCREASED COSTS | 23 | |||
14. INDEMNITIES | 24 | |||
15. MITIGATION | 25 | |||
16. COSTS | 25 | |||
17. PAYMENTS | 26 | |||
18. REPRESENTATIONS | 29 | |||
19. INFORMATION COVENANTS | 33 | |||
20. FINANCIAL RATIOS (Financial Covenants) | 37 | |||
21. GENERAL COVENANTS | 37 |
22. EVENTS OF DEFAULT | 43 | |||
23. SYNDICATION AGREEMENT | 47 | |||
24. SECURITY POOL | 53 | |||
25. CONDUCT OF BUSINESS BY THE FINANCE PARTIES | 59 | |||
26. CERTIFICATES AND CALCULATIONS | 59 | |||
27. AMENDMENTS AND WAIVERS | 60 | |||
28. CHANGES TO THE PARTIES | 61 | |||
29. DISCLOSURE OF INFORMATION | 63 | |||
30. PROVISIONS RELATING TO THE DEFICIENCY GUARANTY | 64 | |||
31. TERMS OF FEDERAL/STATE GUARANTOR DECISION | 68 | |||
32. SEVERABILITY | 68 | |||
33. NOTICES | 68 | |||
34. GOVERNING LAW AND JURISDICTION | 69 | |||
35. CONCLUSION OF THIS AGREEMENT | 70 |
SCHEDULE 1 — THE ORIGINAL PARTIES | 71 | |||
Part I — The Borrower | 71 | |||
SCHEDULE 2 - AUSZAHLUNGSVORAUSSETZUNGEN | 73 | |||
Part I — Original conditions precedent to disbursement | 73 | |||
Part II — Security agreements prior to initial utilization | 76 | |||
SCHEDULE 3 — UTILIZATION REQUEST AND SELECTION NOTICE | 77 | |||
Part I — Specimen of a utilization request | 77 | |||
Part II — Specimen of selection notice | 78 |
SCHEDULE 4 — FORM OF TRANSFER CERTIFICATE | 79 | |||
SCHEDULE 5 - FINANZKENNZAHLEN | 82 | |||
Part I — Form of compliance certificate | 82 | |||
Partl II — Financial ratios | 83 | |||
SCHEDULE 6 — GROUP ORGANIZATIONAL CHART | 84 | |||
SCHEDULE 7 — FEDERAL/STATE GUARANTOR DECISION | 85 | |||
Partl I — Federal/State Guarantor Decision | 85 | |||
Partl II — General terms and conditions for the assumption of guarantees by the GermanBund | 91 | |||
Part III — Item B of the instructions for applying for federal loan guaranties in connection with parallel state guaranties | 95 | |||
SCHEDULE 8 — PROCEDURE FOR CALCULATING MANDATORY COSTS | 97 | |||
SCHEDULE 9 — FORM OF GUARANTY | 100 |
1. | FIRST SOLAR MANUFACTURING GMBH,a German limited liability company with its principal place of business in Frankfurt/Oder and recorded in the Commercial Register of the Municipal Court of Frankfurt/Oder under registration number HRB 11116, as borrower (hereinafter referred to as the “Borrower”); |
2. | COMMERZBANK AKTIENGESELLSCHAFT,acting as arranger (in this capacity, hereinafter referred to as the “arrangeur”); |
3. | theFINANCIAL INSTITUTIONSlisted in Part II (The Original Lenders) of Schedule 1 (The Original Parties), as lenders (hereinafter individually referred to as an“Original Lender”); |
4. | COMMERZBANK AKTIENGESELLSCHAFT, LUXEMBOURG BRANCH, actingas facility agent (in this capacity, hereinafter referred to as the “Facility Agent”); and |
5. | COMMERZBANK AKTIENGESELLSCHAFT, LUXEMBOURG BRANCH,acting as security agent (in this capacity, hereinafter referred to as the“Security Agent”). |
a) | a financial institution that has a rating for its long-term unsecured and non-credit-enhanced debt obligations of A- or higher by Standard & Poor’s Rating Services or Fitch Ratings or Fitch Ratings Ltd, or A-3 or higher by Moody’s Investor Services Limited; or |
b) | any other financial institution that was approved by theFacility Agent (acting at the instruction of theMajority Lenders). |
a) | a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with theFacility (or other the transactions contemplated by theFinance Documents), which disruption is not caused by, and is beyond the control of, any of theParties; or |
b) | any event that leads to a technical or systematic disruption of the treasury or payments operations of aParty and prevents that or anotherParty from: |
(i) | performing its payment obligations under theFinance Documents; or |
(ii) | communicating with otherParties in accordance with the terms of theFinance Documents, |
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a) | pollution or protection of the environment; | |
b) | workplace conditions; or |
c) | the generation, handling, storage, use, release or spillage of substances that, alone or in combination with other substances, are capable of causing harm to the environment including, without limitation, waste. |
a) | the applicableScreen Rate; or |
b) | if noScreen Rateis available for the respectiveInterest Period of aLoan or the overdue amount, then the arithmetic mean of such interest rates (rounded upward to four decimal places) that are quoted by theReference Banks to leading banks in the European interbank market and that are supplied to theFacility Agent at its request, |
a) | any letter between theBorrowerand anAdministrative Party relating to the fees set forth in subsections 11.2 (Arrangement fee), 11.3 (Administrative fee for the Facility Agent) and 11.4 (Administrative fee for the Security Agent); and |
b) | the Mandate Letter between theBorrower and Commerzbank Aktiengesellschaft dated 8 October 2010, as amended. |
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a) | thisAgreement; | |
b) | anySecurity Document; | |
c) | anyFee Letter; | |
d) | anyCompliance Certificate; | |
e) | anyUtilization Request; | |
f) | anySelection Notice; | |
g) | the Deficiency Guarantyand theFederal/State Guarantor Decision; and | |
h) | any other document designated as aFinance Document by mutual agreement of theFacility Agent and theBorrower. |
a) | loans and borrowings; | |
b) | bonds, debentures, commercial paper or comparable financial instruments; | |
c) | acceptance of drawn bills of exchange and the issuance of own bills of exchange; |
d) | lease agreements insofar as the leased asset is required to be recorded as a financial lease under the applicableGenerally Accepted Accounting Principles; |
e) | the sale of receivables (except for sales of receivables without recourse, including so-called “echtem Factoring“ [“genuine” / non-recourse factoring”]) as well asRecourse Factoring; |
f) | derivative transactions insofar as they hedge against fluctuations of markets, interest rates, prices or yields or produce proceeds (where the value of the derivative transaction is calculated on a marked-to-market basis); |
g) | any other transaction that has the economic effect of a loan (including credit extended to suppliers under terms of payment greater than 360 days), whereas indebtedness under vendor financing with terms of payment less than 360 days shall not constitute financial indebtedness within the meaning of this Agreement; and |
h) | any guaranty, bond, surety or indemnity, or any compensation or expense reimbursement claims for the benefit of any person with respect to the indebtedness described in the preceding paragraphs a) to g). |
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a) | all of theGroup Companies and, except in the case of theGuarantor, their shareholders; |
b) | the registered offices of theGroup Companies set forth therein; |
c) | the respective equity interests and, if different, voting rights (in each case in percent) within theGroup; and |
d) | all inter-company agreements concluded amongGroup Companies. |
a) | suchFacility Agent has not made a payment when due, though obligated to do so pursuant to the Finance Documents (or has advised a Party that it does not intend to make such a payment), unless |
(i) | the delay in payment is due to technical or administrative causes or aDisruption and the payment is made within three (3)Business Days after falling due; or |
(ii) | suchFacility Agent disputes in good faith that it is contractually obligated to make the respective payment; |
b) | suchFacility Agentotherwise formally seeks to void aFinance Documentor disavows or withdraws from such document; |
c) | (if suchFacility Agentis also simultaneously aLender) suchFacility Agentis a “Lender in Default” within the meaning of paragraph (a) or (b) of such definition; or |
d) | suchFacility Agentis inInsolvency. |
a) | any decrease in the yield of aFacility or of the rate of return of aFinance Party; | |
b) | all additional or increased costs; and | |
c) | any decrease of the amount due and payable under aFinance Document, |
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a) | all rights to domestic, European or other international current and future industrial property rights to which theBorroweris entitled. Industrial Property Rights shall include, in particular, the following: patents, supplementary protection certificates, utility models, industrial designs (including registered and unregistered community designs), topographies, plant variety protections, trademarks, company marks (to the extent separately transferable), titles of works, domain names, copyrights and related ancillary copyrights, database rights, know-how (insofar as such know-how can be the subject of separate rights) and all other intangible rights of theBorrower protected by German, European or any applicable state laws, including the registration of such rights; and |
b) | all rights of use and licenses to Industrial Property Rights to which theBorrower is entitled. |
a) | aFinance Party institutes or has instituted against it an insolvency proceeding or similar proceeding with respect to its assets or has applied for its dissolution or liquidation, or any such action has been taken by a government body, regulatory authority or similar institution in a jurisdiction in which suchFinance Partywas established or has its principal place of business or which has general jurisdiction over theFinance Party in matters relating to insolvency, supervisory issues or regulatory offenses; |
b) | aFinance Party is over-indebted or insolvent or makes a written admission of insolvency; |
c) | aFinance Party takes action seeking a moratorium, restructuring, a general composition or comparable accords with, or for the benefit of, its creditors; |
d) | an insolvency proceeding or similar proceeding has been instituted with respect to the assets of aFinance Party, or a petition seeking the dissolution or liquidation of suchFinance Partyhas been filed; |
e) | an order has been issued relating to the liquidation, winding-up or receivership of aFinance Party; |
f) | an administrator, preliminary liquidator, conservator, receiver, trustee, custodian or other similar official has been appointed for all or substantially all of the assets of aFinance Party; |
g) | an event occurs that under the applicable laws has an effect on theFinance Partythat is analogous to any of the events described in paragraphs a) to g); or |
h) | aFinance Party takes any action in furtherance of, or indicating its consent to, or acquiescence in, any of the aforementioned events. |
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a) | anyOriginal Lender; and |
b) | any person that, after the execution of thisAgreement in accordance with section 28 (Changes to the Parties) becomes a Lender, |
(a) | that has failed to make available its share of aLoan by the respectiveUtilization Date in accordance with subsection 5.4 b) (Loan disbursement) or has advised theFacility Agent that it will not make available its share of theLoan by theUtilization Date, unless |
(i) | the payment default is due to technical or administrative causes or aDisruption and the payment is made within three (3)Business Days after falling due; or |
(ii) | suchLender disputes in good faith that it is contractually obligated to make the respective payment; |
(b) | suchLender has otherwise formally sought to void aFinance Document or disavows or has withdrawn from suchFinance Document; or | |
(c) | suchLenderis inInsolvency. |
a) | as long as allLendersare only theOriginal Lenders,Lenders: |
(i) | whose aggregateCommitments are at least 59% of theTotal Commitments; or |
(ii) | insofar as theTotal Commitments have been reduced to zero, whoseCommitments immediately prior to the reduction totaled at least 59% of theTotal Commitments; or |
b) | as soon as anOriginal Lender has undertaken aTransfer to aNew Lender, Lenders: |
(i) | whose aggregateCommitments are at least 662/3% of theTotal Commitments; or |
(ii) | insofar as theTotal Commitments have been reduced to zero, whoseCommitments immediately prior to the reduction totaled at least 662/3% of theTotal Commitments. |
a) | in respect of anyLoan as to which interest is to be charged in accordance with thisAgreement,the percentage rateper annumcalculated by theFacility Agent in accordance withSchedule 9 (Mandatory Costs) as the weighted average of the additional costs incurred by theLenders; and |
b) | in respect of any other amount as to which interest is to be charged in accordance with thisAgreement,the percentage rateper annumcalculated by theFacility Agent by analogous application of the provisions of clause a), above. |
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a) | the business, the operations, the property or the condition (financial or otherwise) of theBorrower, theGuarantor or theGroup; |
b) | the ability of theBorrowerorGuarantorto perform its material obligations under theFinance Documents; or |
c) | the validity or enforceability of theFinance Documents or the rights of aFinance Partythereunder, or the validity and ranking of any Security actually or apparently perfected in accordance with theTransaction Security or aFinance Document. |
a) | with respect to theBorrower, (i) its most current audited and certified unconsolidated annual financial statements, which the banks had in their possession before or at the time thisAgreement was executed and (ii) its most current unaudited and unconsolidated quarterly financial statements, which the banks had in their possession before or at the time thisAgreement was executed (including an income statement, cash flow statement and balance sheet); and |
b) | with respect to theGuarantor, its most recent certified and audited consolidated financial statements (together with the utilized reporting package prepared in accordance with US GAAP) that were presented to the banks prior to or upon execution of thisAgreement; and |
c) | with respect to First Solar Holdings GmbH and First Solar GmbH, their (to the extent available) audited and certified annual financial statements for the fiscal year ended 31 December 2009. |
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a) | for the purpose of determining aLender’s share of aLoan to be disbursed, the ratio of suchLender’s availableCommitmentto the aggregate of the availableCommitmentsof all Lenders; and | |
b) | for all other purposes: |
(i) | the ratio of suchLender’sCommitment to theTotal Commitments; or |
(ii) | if the Total Commitments have been canceled, then the ratio borne by suchLender’sCommitment to theTotal Commitments immediately prior to theirCancellation. |
a) | the jurisdiction in which theBorroweris organized; | |
b) | the jurisdiction in which theBorrowerhas its registered office; |
c) | any jurisdiction in which an asset subject to, or intended to be subject to, aTransaction Security created or intended to be created is situated; | |
d) | any jurisdiction in which theBorrowerconducts its business; |
e) | any jurisdiction the laws of which govern the creation (or elements of the creation) of aTransaction Security created or intended to be created by theBorrower. |
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a) | The security agreements specified inPart II (Security Agreements before the First Utilization) ofSchedule 2 (Conditions of Utilization), and |
b) | any other document by which security was or are intended to be created in order to secure claims of theFinance Parties against theBorrowerunder theFinance Documents. |
c) | Screen Rate means the percentage rateper annumdisplayed on the appropriate page of the Reuters screen (EURIBOR01) forEUR and the applicableInterest Period. If the relevant page is replaced or the service ceases to be available, then theFacility Agent (after consultation with theBorrower and theLenders) may specify a different page or service that displays the appropriate percentage rate. |
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a) | Unless provided otherwise, any reference in thisAgreement to the following terms shall be construed as follows: |
(i) | A “person” includes any individual, corporate entity or partnership. |
(ii) | Any reference to aFinance Document or other document is a reference to the most recent version of such document; | ||
(iii) | An asset is any present or future non-current asset or current asset; | ||
(iv) | References to the time of day refer to German time; |
(v) | Words expressed in the singular include the plural, and words expressed in plural include the singular; |
(vi) | The headings and the table of contents are provided solely for ease of reference and shall not be taken into account in the construction of the terms; |
(vii) | All schedules to thisAgreement are an integral part of, and incorporated by reference into, thisAgreement; |
(viii) | Except as expressly provided otherwise in any given case, all references to laws, contracts or other documents refer to their respective versions even if they were referred to by date. Corresponding references also extend to new laws, contract amendments or other documents that add to or replace the originally referenced laws, contracts or other documents, with the exception of the “Instructions for Applying for Federal Loan Guarantees in Connection with Parallel State Guarantees“, which always relate to and are based on the version of 10 May 2010; and |
(ix) | If one or more persons act in concert, this shall have the meaning as defined in subsection 2 (5) of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetzor “WpÜG”). |
b) | A reference to amonthor severalmonthsshall mean a period that begins on one day of a calendar month and ends on the same day of the following or relevant subsequent calendar month, except: |
(i) | insofar as such same day is not aBusiness Day, the period shall end on the next day of such calendar month (if applicable) and otherwise on the precedingBusiness Day; |
(ii) | insofar as there is no same day of the relevant calendar month, the period shall end on the lastBusiness Day of such calendar month; and |
(iii) | irrespective of the foregoing subparagraph (i), a period that commenced on the lastBusiness Day of a calendar month shall end on the lastBusiness Day of the following or the relevant calendar month. |
c) | APotential Default or, as the case may be, aDefault is continuing if it has not been cured or if no waiver declaration has been delivered with respect thereto by the applicable deadline. |
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a) | TheFinance Parties are not jointly and severally liable with respect to the obligations under theFinance Documents. The failure of aFinance Party to perform its obligations under theFinance Documents or its failure to do so on time shall not affect the obligations of the otherParties under theFinance Documents. NoFinance Party is responsible for the performance of the obligations of any otherFinance Partyunder theFinance Documents. |
b) | Except as provided otherwise in theFinance Documents, anyFinance Party can separately enforce its rights under theFinance Documents. |
a) | The purpose of theFacilityis to finance and/or refinance the acquisition of a land parcel at the location of theProduction Site, the construction of buildings at the location of theProduction Site, the acquisition and installation ofProduction FacilityFFO2 at the location of theProduction Site, as well as the financing and/or refinancing of the assembly costs of the Production Facility. |
b) | NoFinance Party is obligated to monitor or otherwise verify the application of anyUtilization under thisAgreement. |
c) | Upon request by aFinance Partyor aState Guarantor (acting through theFacility Agent), theBorrower shall without undue delay furnish reasonable proof that aUtilization was applied in accordance with this section 3. |
(i) | noElement of Default is continuing or would result from the proposedUtilization; | ||
(ii) | noChange of Control has occurred; |
(iii) | a summary of all invoices, as well as copies of all invoices, that exceed EUR 1,000,000 have been presented that thus reflect the costs incurred forProduction Facility FFO2; and |
(iv) | theRepeating Representations (or, in the event of aUtilization on theFirst Utilization Date, the Representations in section 18 (Representations)) are true. |
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a) | TheBorrowercan utilize theFacility in the form of aLoan by delivering a duly completedUtilization Request to theFacility Agent. |
b) | Except as otherwise agreed with theFacility Agent, aUtilization Request must have been received by theFacility Agent by no later than 11:00 a.m. three (3)Business Days before the requestedUtilization Date. | |
c) | AUtilization Request is irrevocable. |
a) | theUtilization Date is aBusiness Day that falls within theUtilization Period of theFacility; | |
b) | the amount of theLoan: |
(i) | is at least EUR 10,000,000 or, if less, then the amount of the outstandingTotal Commitments, and |
(ii) | when aggregated with the sum of the nominal amounts of all outstandingLoans (including all otherLoans that are pending on or before the scheduled date of granting the requestedLoan for disbursement, but not including anyLoans that are due to be repaid on or before the scheduled date of grant of the requestedLoan),does not exceed the total amount of theFacilityat such time; |
c) | the requestedInterest Period is in accordance with section 9 (Interest Periods); and | |
d) | theLoan is denominated inEUR. |
a) | TheFacility Agent shall without undue delay inform theLenders of the details of a duly receivedUtilization Request and the amount of their respective share of the utilizedLoan. |
b) | Insofar as the conditions set forth in thisAgreement have been satisfied, eachLender shall make available to theFacility Agent suchLender’s share of theLoan for theBorrower on the respectiveUtilization Date. |
c) | EachLender’s share of aLoan shall be determined by reference to itsPro Rata Share on the proposedUtilization Datemultiplied by the amount of the utilizedLoan. |
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Repayment Date | Amortization Amount(EUR) | |||
November 2012 | 8,300,000 | |||
May 2013 | 8,300,000 | |||
November 2013 | 8,300,000 | |||
May 2014 | 8,300,000 | |||
November 2014 | 8,300,000 | |||
May 2015 | 8,300,000 | |||
November 2015 | 8,300,000 | |||
May 2016 | 8,300,000 | |||
November 2016 | 8,300,000 | |||
May 2017 | 8,300,000 | |||
November 2017 | 8,300,000 | |||
May 2018 | 8,300,000 | |||
November 2018 | 8,300,000 | |||
May 2019 | 8,300,000 | |||
November 2019 | 8,300,000 |
a) | If, after the conclusion of thisAgreement, aLender’s performance of its obligations under aFinance Document or the grant or perpetuation of suchLender’s share of aLoan would be illegal under the laws of any applicable jurisdiction and suchLender has informed theBorrower and theFacility Agent of such illegality, then |
(i) | the obligation of theLender to participate in furtherUtilizations shall cease and theLender’sCommitment shall automatically be cancelled; and |
(ii) | theBorrowershall prepay suchLender’s share of every outstandingLoan, unless theBorrower replaces theLender in accordance with paragraph c). |
b) | Subject to the provisions of paragraph c), the prepayment of aLender’s share of aLoan shall be effectuated |
(i) | either on the last day of the currentInterest Period of the respectiveLoan; or |
(ii) | if earlier, the day that theLender has specified in its notice pursuant to paragraph a), above which, however, may not fall earlier than the last day of any applicable statutory grace period. |
c) | If the conditions of paragraph a) are met, then theBorrower may notify theFacility Agent and the respectiveLender upon advance notice of 5Business Days that |
i) | the respectiveLender is being replaced and demand of the respectiveLender (and suchLender shall comply with such demand insofar as legally permissible) to transfer the entirety of its rights and obligations under thisAgreement by way of a transfer of theAgreement in accordance with section 28 (Changes to the Parties) to anotherLender or another bank, financial institution, trust, fund or other entity selected by theBorrower that has consented to such transfer for a purchase price in cash payable at the time of the transfer equal to the respectiveLender’s share of the nominal amount of the outstandingLoan, accrued interest,Break Costs and all other amounts payable pursuant to theFinance Documents, or |
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ii) | theBorrower intends to take on additionalFinancial Indebtedness in order to obtain an additional commitment in the amount of theCommitment canceled pursuant to subsection 7.1a)(i) and/or to refinance the repayment of Loans in accordance with subsection 7.1a)(ii). Such additionalFinancial Indebtednessis not a part of thisAgreementand the respective lenders of such additionalFinancial Indebtedness will not participate in theTransaction Security. |
a) | TheBorrower shall promptly notify theFacility Agent when it becomes aware of aChange of Control. |
b) | In the event of aChange of Control,anyLender,at the earliest upon expiration of a thirty (30) day period but no later than sixty (60) days after notice of the occurrence of theChange of Controlis made pursuant to paragraph a) above,upon notice to theBorrowerand the Facility Agent, may |
(i) | terminate all of suchLender’s Commitments with immediate effect; and |
(ii) | demand that its share of the outstanding Loans, including accrued interest and all other amounts payable under the Finance Documents, be repaid. |
a) | TheBorrowershall ensure that theNet Proceeds from the sale of its assets, with the exception of: |
(i) | proceeds from dispositions described in subsection 21.5 b)(i) to (iv) and (v) (Sales/ Disposals); |
(ii) | proceeds from all sales that do not exceed a total of EUR 10,000,000 (if applicable after conversion to EUR) per fiscal year of theBorrower and EUR 50,000,000 (if applicable after conversion to EUR) during the entire term of thisAgreement; or |
(iii) | Net Proceedsthat are reinvested within 360 days (or within a different period agreed to with theFacility Agent) in comparable or higher value assets of like kind that serve the core business of theBorrower or that, in respect of proceeds from the sale of receivables, are invested in the core business of theBorroweror with respect to their corresponding application theBorrower has entered into a binding contractual commitment within 120 days (or within a different period agreed to with theFacility Agent)and has furnished evidence thereof to theFacility Agent; |
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b) | TheBorrower shall ensure the same forNet Proceeds from insurance proceeds insofar as they |
(i) | are not needed and applied to satisfy liability to third parties arising out of the insured event; |
(ii) | not applied within 360 days after receipt of the proceeds to the restoration of the asset damaged or destroyed in the insured event or to the acquisition of another comparable or higher-value asset of like kind that serves the core business of theBorrower,provided that theBorrowerhas entered into a binding contractual commitment within 180 days of receipt of the proceeds with respect to the restoration or acquisition and has furnished evidence thereof to theFacility Agent; |
(iii) | are not less than EUR 50,000 per insured event and less than EUR 2,500,000 per fiscal year of theBorrower; or | ||
(iv) | relate to benefits under a business interruption insurance policy. |
a) | If and insofar asNet Proceeds are required to be applied toward mandatory prepayments of theFacilitypursuant to this section 7 (Prepayment and Cancellation), theFacility shall be reduced by such amount. If and insofar as the amount ofNet Proceeds that is required to be applied toward mandatory prepayments of theFacilityexceeds the availableTotal Commitments, theBorrowershall repay the appropriate differential (Differential) by repaying the outstandingLoans. |
b) | Any amount to be credited pursuant to this subsection 7.4 by reason of mandatory prepayments shall also be applied toward a repayment already undertaken pursuant to subsection 6.1 (Repayment). |
c) | Mandatory prepayments pursuant to subsection 7.4 (Mandatory prepayment — Sales and insurance proceeds) shall be due for repayment without undue delay after receipt by theBorrowerof theNet Proceeds. Unless there is anElement of Default, theBorrower may specify that the mandatory prepayment occur on the last day of the respectiveInterest Period of aLoan. If theBorrower so specifies, then theLoan shall be due for repayment in the amount of the respective mandatory prepayment on the last day of suchInterest Period. If theBorrower has so specified and subsequently aElement of Default occurs, then the corresponding mandatory prepayment shall be immediately due for repayment. |
d) | With respect to mandatory prepayments by reason of the reinvestment periods provided in paragraphs a)(iii) and b)(ii) of subsection 7.3 (Mandatory prepayment — Sales and insurance proceeds), notwithstanding the preceding paragraph c) and as long as there is noElement of Default,mandatory prepayments shall be made on the last day of the respectiveInterest Period in which the respective reinvestment periods expire. |
a) | TheBorrowermay voluntarily cancel the unutilized portion of theTotal Commitments, either in whole or in part, by giving at least ten (10)Business Days advance notice thereof to theFacility Agent. |
b) | Partial cancellations of theTotal Commitments must be made in the amount of at least EUR 2,500,000 and whole multiples of EUR 500,000. |
c) | Each partial cancellation shall be allocatedpro ratato theCommitment of eachLender. |
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a) | TheBorrowermay voluntarily prepay aLoan at any time, either in whole or in part, prior to the last day of the currentInterest Period of the respectiveLoan by giving at least ten (10)Business Days advance notice thereof to theFacility Agent. |
b) | Partial prepayments of the respectiveLoans must be made in the amount of at least EUR 2,500,000 and whole multiples of EUR 500,000. |
a) | If theBorrower is required to make aTax Payment to aLender in accordance with section 12 (Taxes) or payIncreased Costsin accordance with section 13 (Increased Costs) or theLender becomes aLender in Default, then theBorrower,by notice to theFacility Agent, may cancel suchLender’sCommitments and inform suchLenderthat theBorrower intends to repay suchLender’s share of theFacility or, as the case may be, replace theLender in accordance with paragraph d). | |
b) | After the notice described in paragraph a) above: |
(i) | theBorrower must repay (or, if applicable, prepay) the respectiveLender’s share of allUtilizations at the time specified in paragraph c), below; and | ||
(ii) | the respectiveLender’sCommitment will be reduced to zero. |
c) | Repayment (or, as the case may be, prepayment) shall occur: |
(i) | either on the last day of the currentInterest Period; or | ||
(ii) | if earlier, then on the day specified by theBorrower in its notice. |
d) | If the conditions of paragraph a) are satisfied, then theBorrowermay, |
(i) | upon notice of 5Business Days,advise theFacility Agent and the respectiveLender that the respectiveLender is being replaced and demand of the respectiveLender (and suchLender shall comply with such demand insofar as legally permissible) to transfer the entirety of its rights and obligations under thisAgreement by way of an transfer of theAgreement in accordance with section 28 (Changes to the Parties) to anotherLender or another bank, financial institution, trust, fund or other entity selected by theBorrower, which has consented to such transfer, for a purchase price in cash payable at the time of the transfer equal to the respectiveLender’s share of the nominal amount of the outstandingLoan, accrued interest, Break Costs and all other amounts payable pursuant to theFinance Documents; or |
(ii) | theBorrower intends to take on additionalFinancial Indebtedness in order to obtain an additional commitment in the amount of theCommitment canceled pursuant to subsection 7.8d)(i) and/or to refinance the repayment of Loans in accordance with subsection 7.8d)(ii). Such additionalFinancial Indebtednessis not a part of thisAgreementand the respective lenders of such additionalFinancial Indebtedness will not participate in theTransaction Security. |
e) | The replacement of aLender pursuant to paragraph d)(i) shall be subject to the following conditions: |
(i) | theBorrower may not replace anyAdministrative Party; |
(ii) | neither theFacility Agent nor aLender shall be required to find a replacement for aLender; and |
(iii) | the outgoingLender pursuant to paragraph d)(i) is in no event obligated to repay or reimburse the fees and commissions received by suchLenderunder theFinance Documents. |
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a) | Insofar as facts exist that trigger a mandatory prepayment pursuant to subsection 7.3 (Mandatory prepayment — Sales and insurance proceeds), theBorrower shall promptly notify theFacility Agent thereof with an explanation of the underlying facts. Such notice shall also indicate how the mandatory prepayment in accordance with subsection 7.4 (Application of mandatory prepayments) will be applied. |
b) | Any notice of prepayment and any cancellation by theBorrower under thisAgreement is irrevocable and must specify the relevant dates and the specificLoansandCommitments. TheFacility Agent shall without undue delay notify the affectedLender(s) of the receipt of such a notice. |
c) | All prepayments under thisAgreement must be made together with the interest accrued upon the prepaid amounts. Except as expressly provided otherwise, in the event of a payment that is not made on the last day of anInterest Period,Break Costs, if any, shall be reimbursed. No surcharges or contractual penalties shall be payable in respect of prepayments. |
d) | TheMajority Lenders may approve a shorter notice period for a voluntary prepayment or voluntary cancellation. |
e) | TheMajority Lenders may waive a mandatory prepayment pursuant to subsection 7.3 b) (Mandatory prepayment — Sales and insurance proceeds) before such prepayment comes due. After such prepayment is due, it can be waived only with the consent of allLenders. |
f) | Any sum repaid in respect of aCommitment pursuant to thisAgreement may not be drawn down again. |
g) | No amount of aCommitment cancelled pursuant to thisAgreement may be subsequently reinstated. |
a) | If theBorrowercancels theCommitments,either in whole or in part pursuant to subsection 7.6 (Voluntary cancellation), subsection 7.8 (Prepayment and cancellation with respect to individual lenders) or if theCommitment of aLender is reduced pursuant to subsection 7.1 (Mandatory prepayment — Illegality) or subsection 7.2 (Mandatory prepayment — Change of Control), then the amount of all subsequentInstallments shall be reducedpro rata. |
b) | If aLoan is repaid in accordance with subsection 7.1 (Mandatory prepayment - Illegality), subsection 7.2 (Mandatory prepayment — Change of Control), subsection 7.7 (Voluntary prepayment) or subsection 7.8 (Prepayment and cancellation with respect to individual lenders), then the amount of all subsequentinstallmentsshall be reducedpro rata. |
c) | In the event of a prepayment of theLoan pursuant to subsection 7.3b (Mandatory prepayment — Sales and insurance proceeds), the amount of all subsequentinstallmentsshall be reducedpro rata. |
a) | The interest rate for eachInterest Period of aLoan corresponds to a percentage rateper annumwhich is the sum of theMarginand EURIBOR andMandatory costs,if any. |
b) | Except as otherwise provided in thisAgreement, theBorrower shall pay the accrued interest on eachLoan on the last day of the respectiveInterest Period. |
c) | If anInterest Period greater than six (6) months has been agreed, then the accrued interest shall nevertheless be payable every 6 months from the date of disbursement and on the last day of theInterest Period. |
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a) | If theBorrower fails to pay any amount (other than interest) owed by it under theFinance Documents on its due date, then theBorrower shall, upon demand of theFacility Agent, immediately pay interest on the overdue amount (other than interest) as of the due date until the date of the actual payment. The rate of interest on an overdue amount (other than interest) shall be determined in accordance with § 288 of the German Civil Code (BGB). |
b) | If theBorrower fails to satisfy its obligations to pay interest when due pursuant to thisAgreement, then theBorrowershall owe default damages as provided in §§ 247, 288 and 280 BGB. |
c) | AnyFinance Party may assert claims for greater damages with appropriate evidence. In a case under paragraph b), theBorrower shall be entitled to prove lesser damages. |
a) | EachLoan has successiveInterest Periods. The firstInterest Period of aLoan shall be specified by theBorrower in the respectiveUtilization Request, and every subsequentInterest Period shall be specified in an irrevocableSelection Notice that must have been received by theFacility Agent [Konsortialführer]no later than 11:00 a.m. three (3)Business Days before theQuotation Day for the relevantInterest Period. If aSelection Notice is not duly delivered, then theInterest Period for the respectiveLoan shall be (3) months. |
b) | Subject to the following provisions of this section, theInterest Period for anyLoan shall be three (3) or six (6) months, or any other period as agreed by theBorrower and allLenders (acting through theFacility Agent). | |
c) | Interest Periods may not expire after theFinal Maturity Date. |
d) | Upon full Utilization of theFacility or, as the case may be, no later than the last day of theUtilization Period, all then outstandingLoans shall be consolidated in consultation with theFacility Agent into a singleLoan with oneInterest Period. |
e) | TheFacility Agentand theBorrower can reach additional agreements as necessary relating to the consolidation and/or division ofLoans (including with respect to theInterest Periods). TheLenders hereby consent to any accordingly shorterInterest Periodsduring the Utilization Period. |
f) | If the last day of anInterest Period is a day that is not aBusiness Day, then theInterest Period shall end instead on the followingBusiness Day of the same month or, if there is no suchBusiness Day in the respective month, then on the precedingBusiness Day, or if anInterest Period otherwise ends after theFinal Maturity Date, thenon theFinal Maturity Date or, if theFinal Maturity Date is not aBusiness Day, then on the precedingBusiness Day. |
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a) | If aMarket Disruption Event occurs in relation to aLoan in respect of any Interest Period, then the interest rate on eachLender’s share of thatLoan for the relevantInterest Period shall be the sum of: |
(i) | the applicableMargin; |
(ii) | the interest rate that is notified to theFacility Agent by the respectiveLender as soon as possible and, in any event, prior to the date on which interest is due to be paid in respect of thatInterest Period and that expresses as a percentage rateper annumthe costs to thatLender of funding its participation in suchLoan from whatever source suchLender deems reasonable; and | ||
(iii) | Mandatory Costs. |
b) | In this subsection 10.2 (Market Disruption), any of the following events shall be deemed aMarket Disruption Event: |
(i) | EURIBOR is to be determined by reference to quotations by theReference Banks and if none or only one of theReference Bank has supplied a quotation by 12:00 p.m. on theQuotation Day; or |
(ii) | before the close of business on theQuotation Day, theFacility Agent receives notification from at least twoLenders whose participation in the relevantLoan exceeds 30% of suchLoan that their costs of obtaining congruent funding in the interbank market for the respectiveInterest Period would be in excess of EURIBOR. |
a) | If aMarket Disruption Event occurs and theFacility Agent or theBorrower so demands, then theBorrower and theFacility Agent shall enter into negotiations for a period of not more than thirty (30) days with a view to agreeing on a substitute basis for determining the rate of interest and/or obtaining the funds for the relevantLoan. If no agreement is reached, the interest rate shall continue to be calculated as provided in subsection 10.2 (Market Disruption). |
b) | Any alternative basis so agreed shall, with the prior consent of allLenders and theBorrower, be binding on allParties. |
a) | If theBorrower repays aLoan on a day other than the last day of anInterest Period, then theBorrowershall repay the relevantLenders anyBreak Costs for the currentInterest Period. |
b) | Break Costs shall be the Differential, as calculated in each case by suchLender, between |
(i) | the interest (excluding theMargin) that suchLender would have received on its share of the prepaidLoan from theBusiness Day after the prepayment of theLoans to the last day of the currentInterest Period of suchLoan, |
(ii) | the amount that suchLender would be able to obtain by depositing a sum equal to the prepaid amount with a leading bank in the European interbank market starting on theBusiness Day after the prepayment of theLoan to the last day of the currentInterest Period of suchLoan. |
c) | EachLender, at the request of theFacility Agent, shall deliver to theFacility Agent and theBorrower a confirmation in respect of theBreak Costs incurred by suchLenderin the respectiveInterest Period. At the request of theBorrower, theFacilityAgent shall demand that the respectiveLender provide a certificate of such confirmation. |
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a) | TheBorrower shall pay theFacility Agent for the account of theLenders as of the day of signing of thisAgreement to the end of theUtilization Periods a commitment fee equal to 35% of theMargin on the unutilized current total amount of theTotal Commitments. |
b) | Accrued commitment fees shall be payable quarterly in arrears or, as the case may be, at the end of the respectiveUtilization Period. Commitment fees that were accrued on such parts of theTotal Commitments as were canceled or reversed shall be paid at the time that the cancellation or reversal becomes effective. |
c) | ALender in Default shall have no right to the commitment fee with respect to such Lender’s share of the unutilizedCommitment for the period that such Lender is aLenderin Default, and the amount to be paid by theBorrower pursuant to subsection 11.1a) shall be reduced accordingly. |
a) | TheBorrower shall make any and all payments owed under theFinance Documents without anyTax Withholding unlessTax Withholding is required by law. |
b) | Upon theBorrower’sbecoming aware that it is required to effectuate aTax Withholding (or that there is any change in the rate or basis of aTax Withholding), theBorrowershall without undue delay notify theFacility Agent thereof. Similarly, aLender shall notify theFacility Agent upon becoming so aware in respect of a payment payable to thatLender. If theFacility Agent receives such notification from aLender,then it shall notify theBorrower accordingly. |
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c) | If theBorrower is required by law to make aTax Withholding, then the amount of the payment required to be made by theBorrower under this Agreement shall be increased to an amount which is necessary to insure that after making allTax Withholdings,the amount received is the same amount that would have been received if theBorrowerwere not required to make suchTax Withholdings. The preceding sentence shall not apply if and insofar as aTax Withholding would not be required, but is required as a consequence of a transfer as provided in subsection 28.3 (Transfer by the Lender) because the transferee is a party deemed to be resident for tax purposes in a country that has not entered into a double taxation agreement with the Federal Republic of Germany that provides for a partial or full exemption of interest payments. The preceding sentence shall also not apply if and insofar as the payee has failed to perform contractual or statutory obligations, or has failed to do so sufficiently and if, upon performance or sufficient performance of such obligations, theBorrowerwould not have been required to make theTax Withholding. |
d) | If the Borrower is required to make aTax Withholding, then suchTax Withholdingshall be effectuated in the amount and within the time required by law. |
e) | Within thirty (30) days after making aTax Withholding or any payment required in connection with thatTax Withholding, theBorrower shall deliver to theFacility Agent for theFinance Party entitled to the payment evidence satisfactory to suchFinance Party (in its reasonable discretion) that theTax Withholding was made or that the appropriate Payment was paid to the relevant tax authority. |
a) | Except as provided otherwise below, theBorrower shall pay eachFinance Party an amount equal to any loss and indemnify suchFinance Party for any liability that the respectiveFinance Party, in its determination, has incurred, directly or indirectly, by reason that aTaxis required to be paid in respect of a payment owed or made under theFinance Documents. | |
b) | Paragraph a) above does not apply: |
(i) | toTaxesthat |
(A) | aFinance Party is required to pay under the laws of the jurisdiction in which thatFinance Partyhas its registered office or, if different, the jurisdiction in which thatFinance Partyis treated as a resident for tax purposes; or |
(B) | aFinance Party is required to pay under the laws of the jurisdiction in which thatFinance Party’sFacility Office or business office is located in respect of amounts received or receivable by thatFinance Party, to which its share of the Loan belongs; |
(ii) | insofar as a loss or liability is already being compensated for by a tax gross-up as provided in subsection 12.1 (Tax gross-up), or would have been compensated for had there not been a ground for exclusion under subsection 12.1c) (Tax gross-up); or |
(iii) | to taxes, which are imposed pursuant to § 49 no. 5 c (aa) of the German Income Tax Act (“EStG”). |
c) | EachFinance Party making or intending to make a claim under paragraph a) above shall without undue delay notify theFacility Agent of the event that will give, or has given, rise to the claim, after which theFacility Agent shall notify theBorrower. |
d) | AFinance Party, upon receiving a payment from theBorrowerunder this subsection 12.2 (Tax indemnity), shall notify theFacility Agent. |
e) | This subsection 12.2 does not apply to aFinance Party’s value-added tax claims or pre-tax compensation claims. Subsection 12.4 (Value-added tax) definitively governs matters related to value-added tax. |
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a) | aTax Creditis attributable to suchTax Payment; and | |
b) | that theFinance Party has received and utilized thatTax Credit, |
a) | Any amount owed by theBorrower under aFinance Documentshall be paid exclusive of value-added tax (“VAT”) or any comparableTaxes that could be assessed in connection with such amounts. If any such VAT or comparableTax is assessable, then theBorrower shall pay to theFinance Party, in addition to the amount owed, an amount equal to the amount of such tax. In such event, the respectiveFinance Party shall provide theBorrower with an invoice that satisfies the applicable legal requirements. Sentence 1 shall not apply in the event that theBorrower owes the tax in the context of a reversal of the tax liability as provided in §13b(5) of the VAT Act (Umsatzsteuergesetz) or any similar provision of law. AFinance Party shall not, without the consent of the recipient of a service, elect to have VAT apply with respect to a non-taxable service under aFinance Document. |
b) | Where aFinance Document requires aParty to reimburse or indemnify aFinance Partyfor any cost or expense, such obligation shall also encompass in this respect VAT or comparableTaxes paid by thatFinance Party insofar as no tax credit or refund can be obtained in respect of such amount. |
a) | the enactment of, or any change to, a law or regulation or a change of interpretation or application of any law or regulation after the date of thisAgreement; or | |
b) | compliance with any law or regulation enacted after the date of thisAgreement. |
a) | EachFinance Party intending to make a claim for Increased Costs shall notify theFacility Agent of the amount of the claim as well as the circumstances giving rise to the claim. TheFacility Agent shall thereupon without undue delay notify theBorrower. |
b) | EachFinance Party must, as soon as possible after a demand by theFacility Agent, present a certificate confirming the amount of itsIncreased Costs and must reasonably substantiate its calculation of the amount of suchIncreased Costs. |
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a) | are attributable to aTax Withholdingrequired by law to be made by theBorrower, given that the tax gross-up is covered only by subsection 12.1 (Tax gross-up); |
b) | were compensated for by paragraph c) of subsection 12.1 (Tax gross-up) or subsection 12.2 (Tax indemnity) (or should have been compensated for but was not so compensated because of the exclusions in paragraph b) of subsection 12.2 (Tax indemnity)); | |
c) | were already compensated for by the payment of theMandatory Costs; or |
d) | are attributable to the willful violation of any law or regulation by aFinance Party or itsAffiliate. |
a) | TheBorrower shall indemnify anyFinance Party for all losses and liabilities incurred by suchFinance Party arising out of the circumstance that latter receives a sum in a currency other than that owed under thisAgreement or theBorrower has been found liable judicially or extrajudicially for an amount under theFinance Documents in a currency other than that owed under thisAgreement. |
b) | To the extent permitted by law, theBorrower waives all rights (irrespective of the jurisdiction) to pay any amount under theFinance Documents in a currency other than the currency contractually agreed. |
a) | the occurrence of anEvent of Default; |
b) | theBorrower’s failure to pay any amount due under aFinance Document on its due date, including any loss or liability arising as a result of subsection 17.11 (Adjustment payment); |
c) | the failure to disburse aLoan after submission of aUtilization Request for suchLoan,if the failure to disburse was based on one or more provisions of thisAgreement(provided this was not attributable to the culpable conduct o thatFinance Party); or |
d) | aLoan isnot prepaid (either in whole or in part) in accordance with a notice of prepayment delivered to theFacility Agent. |
a) | an investigation of any circumstance and event that anAgent reasonably believes would constitute aDefault; or | |
b) | acting or relying on any notice that theAgent fairly believes to be genuine. |
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a) | TheBorrower shall indemnify theAdministrative Partiesand theMandataryfor all expenditures, costs and losses and hold them harmless from all liability reasonably incurred by them |
(i) | with respect to or as a result of |
(A) | the creation, holding, defense or execution of theTransaction Security; |
(B) | the exercise of any of their statutory or contractual rights in accordance with theFinance Documents, powers of attorney and remedies; or |
(C) | any failure by theBorrower or theGuarantor to perform its obligations under theFinance Documents; or |
(ii) | in connection with encumbered property or the performance of the requirements of theFinance Documents (except insofar as sustained as a result of gross negligence [grobe Fahrlässigkeit] or an intentional act or omission [Vorsatz]). |
b) | In priority to any payment to theLenders from the proceeds of any enforcement on theTransaction Security, theSecurity Agent may itself retain all sums necessary to give effect to the this section 14. TheSecurity Agent shall have a lien on theTransaction Security and on the proceeds from the sale of theTransaction Security for all monies payable to theSecurity Agent. |
a) | EachFinance Party shall, in consultation with theBorrower, take all reasonable steps to prevent or mitigate the occurrence or detrimental effects of any matter described in subsection 7.1 (Mandatory prepayment — Illegality), subsection 12.1 (Tax gross-up), subsection 12.2 (Tax indemnity), subsection 13.1 (Increased costs) or subsection 3 ofSchedule 8 (Mandatory Costs). This shall also include, to the extent reasonable, a transfer of its rights and obligations under theFinance Documents to anAffiliate or a change of theFacility Office. |
b) | Paragraph a) above does not in any way limit the obligations of theBorrower under theFinance Documents. |
c) | The Borrower must without undue delay indemnify eachFinance Party for all costs and expenses reasonably incurred by thatFinance Party as a result of steps taken by it on this basis of this section. |
d) | AFinance Party is not obliged to take any action pursuant to this section if it reasonably believes that such action could be prejudicial to it. |
a) | all reasonable, external costs and expenditures (including agreed legal costs and costs for persons engaged by anyAdministrative Party) that were incurred by them in connection with the negotiation, preparation, printing, execution and formal adoption of thisAgreement, every document named herein, theTransaction Security as well as every otherFinance Document (including anyFinance Documents executed after the execution of thisAgreement); |
b) | all reasonable, external costs and expenditures (including agreed legal costs and costs for persons engaged by anyAdministrative Party) that were incurred by them in connection with any amendments, waivers or consents requested by theBorrower; |
c) | all costs and expenditures (including agreed legal costs and costs for persons engaged by anyAdministrative Party) that were incurred by them in connection with the enforcement or protection of rights under anyFinance Document (including the realization of theTransaction Security); |
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d) | all external costs and expenditures (including agreed legal costs and costs for persons engaged by anyAdministrative Party) that were incurred by them in connection with the inspection and realization of theTransaction Security as well as potentialTransaction Security; and |
e) | all external costs and expenditures (including agreed legal costs and costs for persons engaged by anyAdministrative Party) that were incurred by them in connection with the exercise of the ongoing work of theSecurity Agent in this capacity as a result of the occurrence of aDefault or as a result of a request by theBorrower or theMajority Lenders. |
a) | Payments forTaxes, fees, costs and expenditures must be made in the currency of the relevant expenses. | |
b) | All other amounts payable under theFinance Documents must be paid in EUR. |
a) | Each payment received by theFacility Agent under theFinance Documents for anotherParty shall, except as otherwise stipulated, be transferred by the Facility Agent as soon as possible after it is received in the relevantParty’s account, which thatParty must disclose to theFacility Agent for that purpose no less than five Business Days’ in advance. |
b) | Repaid credit amounts (including voluntary unscheduled repayments), interest and commitment fees must be distributedpro ratato theLenders. Reductions of theCommitments must also be carried out on apro ratabasis. |
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c) | TheFacility Agent may credit any amount it receives on behalf of theBorrower against any amount due that is owed by theBorrower under theFinance Documents, or it may use this amount to purchase any currency required for this purpose. |
d) | If a sum is paid to theFacility Agent under thisAgreement for anotherParty, then theFacility Agent is under no obligation to pay that sum to that otherPartyuntil it has been able to establish to its satisfaction that it has actually received that payment. TheFacility Agent may, however, assume that the payment to theFacility Agent has actually been effected and, relying on this assumption, make a corresponding amount available to the otherParty. If it proves to be the case that theFacility Agent had not actually received that amount, then theParty, to whom that amount was paid by theFacility Agent, shall on demand without undue delay refund the same to theFacility Agent together with interest on that amount from the date of payment to the date of receipt by theFacility Agent, calculated by theFacility Agent to reflect its cost of funds. |
a) | If, at any time, theFacility Agent becomes anImpairedFacility Agent, the Borrower or Lender, which is required to make a payment under theFinance Documents to theFacility Agent in accordance with section 17.1 (Payments to the Facility Agent), may instead either pay that amount directly to the recipient entitled thereto or pay that amount to an interest-bearing account held with anAcceptable Bank within the meaning of paragraph a) of the definition of “Acceptable Bank” in the name of theBorrowerorLendermaking the payment and designated as a trust account [Treuhandkonto] for the benefit of theParty orParties beneficially entitled to that payment under theFinance Documents. In each case, such payments must be made on the due date for payment under theFinance Documents. |
b) | All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust accountpro ratato their respective claims. |
c) | A Party, which has made a payment in accordance with this section 17.8, shall be discharged of the relevant payment obligation under the Finance Documents and shall therefore not be exposed to any credit risk with respect to the amounts standing to the credit of the trust account. |
d) | Promptly upon the appointment of a new Agent in accordance with section 23.11 (Resignation of the Facility Agent), eachParty which has made a payment to a trust account in accordance with this subsection 17.8 shall give instructions to the bank with whom the trust account is held to transfer the amounts (together with any accrued interest) to the newFacility Agent. |
(i) | first, aspro ratapayment of any unpaid fees, costs and expenses of theAdministrative Parties; |
(ii) | secondly, aspro ratapayment of any accrued interest and fees under thisAgreement; and |
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(iii) | thirdly, aspro ratapayment of the accured amortization amounts owed under thisAgreement; and |
(iv) | fourthly, aspro ratapayment of any other amounts due under theFinance Documents. |
a) | thePreferred Lender must inform theFacility Agent of the details regarding thePayment within three (3)Business Days; |
b) | theFacility Agent must determine whether thePayment was higher than the amount that thePreferred Lender would have received if theFacility Agent had received thePayment and distributed it in accordance with thisAgreement; and |
c) | thePreferred Lender must pay any such surplus amount to theFacility Agent (theAdjustment Payment). |
a) | TheFacility Agent shall treat theAdjustment Payment as if it were a payment by theBorrower pursuant to thisAgreement and shall transfer it to theFinance Parties (with the exception of thePreferred Lender). |
b) | After transferring theAdjustment Payment pursuant to subsection a) above, everyFinance Party (with the exception of thePreferred Lender) shall assign to thePreferred Lender that portion of their own claim that is equivalent to their portion of theAdjustment Payment,so that after carrying out the assignments, theBorrower shall owe thePreferred Lender an amount which is equivalent to theAdjustment Payment and is immediately payable and of the same kind as the originally paid debt. |
c) | If thePreferred Lender must later pay back a payment or any sum assessed in reference to the payment, and thePreferred Lender had made anAdjustment Payment in respect of this payment, then eachFinance Party shall reimburse the Preferred Lender for the corresponding portion of theAdjustment Payment made to it and it shall rescind the assignments under subsection b). |
a) | after making theAdjustment Payment, it would not have a valid claim against theBorrower in the amount of theAdjustment Payment; or |
b) | it must share an amount received as a result of court or arbitration proceedings with anotherFinance Party and: |
(i) | thePreferred Lender had informedFacility Agent about the court or arbitration proceedings; and |
(ii) | the otherFinance Party had the opportunity to participate in these proceedings but refrained from so doing and also did not file any separate court or arbitration proceedings. |
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a) | TheBorrower is a limited liability company [Gesellschaft mit beschränkter Haftung], duly incorporated and validly existing under the laws of Germany. |
b) | TheBorrower has the legal power and authority to sue or be sued in its own name, and has the right to dispose of its own assets and to carry on its business in each jurisdiction in which it holds assets or conducts business. |
a) | the obligations which it has assumed under theFinance Documents have been legally concluded and establish legally binding, lawful and enforceable obligations of theBorrower; and |
b) | (without limiting the proposition set forth in paragraph a) above), eachSecurity Document, to which it is a party, creates the security, which the relevantSecurity Document purports to create, and this security is valid and enforceable. |
a) | any laws or other regulations that apply to it; | |
b) | any provisions of its articles of association; or |
c) | any other agreement, under which it or its assets are bound, and do not establish cause for termination under any such contract or give rise to an obligation to provide security in favor of third parties under such contract (with the exception of theTransaction Security); |
a) | AllAuthorizations and Approvals, which are necessary in order to: |
(i) | allow it to lawfully sign theFinance Documents to which it is a party, and to exercise its rights and discharge its duties; and |
(ii) | to make theFinance Documents, to which it is a party, an admissible form of evidence, |
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b) | AllAuthorizations and Approvals, which it requires |
(i) | in connection with its business operation and the construction of theProduction Facility FFO2; and |
(ii) | in connection with the execution, performance, legal validity and enforceability of theFinance Documents as well as the transactions contemplated therein, |
a) | the courts of theRelevant Jurisdiction of theBorrower will recognize and enforce, as the governing law, the law that is stipulated in theFinance Documents; and |
b) | any judgment, which is issued with respect to theFinance Documents, will be recognized and enforced in theRelevant Jurisdiction of theBorrower, and it is not entitled to assert in that jurisdiction any immunity that could protect it against set-offs, lawsuits, seizures, compulsory enforcement actions and other judicial proceedings. |
(i) | no actions taken under company law, judicial proceedings or any other steps, which are listed in subsection 22.7 (Insolvency proceedings), and |
(ii) | no compulsory enforcement as described in section 22.8 (Compulsory enforcement) |
a) | threatened in writing against theBorrowerto the best of theBorrower’sknowledge, or |
b) | instituted against it, and none of the facts described in subsection 22.6 (Insolvency) pertain to it. |
c) | There has been noDefault,and as of the date thisAgreement is concluded and the firstUtilization Date, there will have been noElement of Default (Kündigungstatbestand), and the execution of theFinance Documents and the performance of the transactions contemplated therein (including theUtilizations) will not lead to anElement of Default. |
d) | There are no other facts or circumstances that constitute cause for terminating (however described) another contract, to which it is bound, and that, either individually or collectively, are reasonably likely to lead to aMaterial Adverse Change. |
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a) | TheBorrower has provided theFinance Parties with all facts and information which, in theBorrower’s opinion, are material for the decision by theFinance Parties to grant the credit. |
b) | All written factual information (including annual and quarterly financial statements), which theBorrower or its advisors has disclosed to theFinance Parties or any of its advisors, is — in all material respects — true, correct and not misleading with respect to the date of its disclosure or the date to which the disclosure relates. |
c) | The factual information contained in theInformation Package was in all material respects true and correct as of the date theInformation Package was produced or, if applicable, as of the date to which the factual information relates. The forecast figures contained in theInformation Package were generated on the basis of the current information available at the time theInformation Package was prepared and on the basis of assumptions, which theBorrower could have reasonably been expected to make as of theInformation Package’s date following a reasonable estimation and after careful consideration and review, and these figures were approved by theBorrower’s managing directors. TheBorrower believes that the forecast figures are realistic. |
d) | Each financial projection contained in theInformation Package was prepared after careful consideration and review as of the time it was made and on the basis of information then current and was predicated on reasonable assumptions. |
e) | No circumstances have arisen and no information has been omitted from the Information Package, which if disclosed, would result in the information, opinions, expectations or projections contained in the Information Package being untrue or misleading in any material respect. |
a) | Its annual and quarterly financial statements (including theOriginal Financial Statements), which were most recently delivered to theFacility Agent: |
(i) | were continuously prepared on the basis of theGenerally Recognized Accounting Principles and principles of recognized bookkeeping that are applicable in the country of its registered office; and |
(ii) | give a true and fair view of its financial condition and results of operations as of the record of date of the financial statements; |
b) | TheBorrower represents that it has no material liabilities other than those disclosed in theOriginal Financial Statements, in the most recent quarterly financial statements or in theInformation Memorandum. |
c) | TheBorrower represents that eachbusiness plan, which was delivered pursuant to thisAgreement, was prepared after careful consideration and review and in good faith on the basis of assumptions which, from theBorrower’s perspective, were realistic as of the time thebusiness plan was generated and delivered. |
d) | Since the Date of theOriginal Financial Statements, no facts or circumstances have arisen that would lead to aMaterial Adverse Change. |
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a) | It is not the subject matter of any pending or — to the best its knowledge — threatened litigation, arbitration or administrative proceedings (including proceedings before cartel authorities) or investigations which, if adversely decided, could with a reasonable likelihood lead to aMaterial Adverse Change. |
b) | It has not breached any provision of another document to which it is bound, nor violated any order or judgment issued by a court, arbitrator or regulatory agency, nor violated any law, regulation, directive or rule issued by a government agency, to the extent that such breach or violation could, either individually or collectively, lead to aMaterial Adverse Change. |
a) | It is in full compliance with any and all applicable laws and regulatory/judicial orders, the violation of which could lead to aMaterial Adverse Change. |
b) | To the best of its knowledge (after having duly and thoroughly inquired into the matter), theBorrower is not subject to any current or imminent labor disputes, which could lead to aMaterial Adverse Change. |
a) | It is in compliance with subsection 21.3 (Environmental compliance) and to the best of its knowledge (after having duly and thoroughly inquired into the matter), there are no facts or circumstances that could jeopardize compliance to such extent that it could result in aMaterial Adverse Change. |
b) | NoEnvironmental Claims have been brought against it or threatened to be brought against it (to the best of its knowledge after having duly and thoroughly inquired into the matter), to the extent that such claims, if substantiated, could lead to aMaterial Adverse Change. |
a) | At any given time, it is the holder of all assets (as owner, tenant, lessee or licensee) that it requires in order to manage and maintain its current business operation and to construct and operate theProduction Facility FFO2. |
b) | It is the sole and lawful owner of its assets that, in accordance with the provisions of theSecurity Documents and subject to any exceptions therein such as retentions of title, are or are expected to be the subject matter of theTransaction Security. |
a) | is the sole lawful owner of, or has licenses under customary terms and conditions to,Industrial Property Rights, which are material for its business operation and for the construction of theProduction Facility FFO2 and which are needed to continue managing the business operation, as it is currently being managed and as it is expected to be managed in the future; |
b) | does not infringe theIndustrial Property Rights of a third party to the extent that the infringement could lead to aMaterial Adverse Change; and |
c) | has taken all formal steps (including paying fees and royalties) which are required in order to maintain theIndustrial Property Rights which belong to it, provided that the maintenance of suchIndustrial Property Rights is necessary for its business operation. |
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a) | TheBorrower makes with respect to itself theRepeatingRepresentations as set forth in this paragraph a) to eachFinance Party as of the times in this paragraph a), and theRepeatingRepresentations relate to the circumstances existing as of the date of eachUtilization Request and each first day of anInterest Period. In addition, theRepeatingRepresentations will be deemed to have been made anew by theBorrower on theUtilization Date and the first date of eachInterest Period. |
b) | If a representation is made, it will relate to the facts and circumstances existing on the date that the representation was made. |
a) | the annual financial statements (balance sheet, income statement and, in the case of subparagraph (i), the notes, management report and cash flow statement) for each fiscal year beginning with fiscal year 2010 for: |
(i) | theGuarantor(consolidated and audited together with the audit and management reports); |
(ii) | theBorrower(unconsolidated individual financial statements, but audited together with the audit and management report); and |
(iii) | First Solar Holdings GmbH and First Solar GmbH (in each case the unconsolidated individual financial statements, but — if available — audited and/or consolidated); |
b) | a report on the use and processing of theLoan within 90 days after the end of each half-year; and |
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c) | the unaudited and unconsolidated quarterly financial statements (balance sheet, income statement) of theBorrower and the consolidated quarterly financial statements (balance sheet, income statement) of theGuarantor for each quarter as soon as those documents become available but, in any case, no later than within 90 days following the end of each quarter of theBorrower’s fiscal year. Each of these quarterly financial statements must contain,inter alia, information on the quarter in question, the year-to-date balance [Jahressaldo], the same quarter of the previous year and the year-to-date balance for the previous fiscal year. In addition, a report from the managing director(s) regarding theProgress of the Project must accompany each quarterly financial statement of theBorrower during the construction phase of theProduction Facility FFO2. |
a) | In connection with the financial statements to be delivered in accordance with subsection 19.1 (Financial statements and reports), at least one managing director with sole representational authority or a registered attorney-in-fact (Prokurist) who is responsible for finance at the company in question must certify that the financial statements present a true and fair view of the financial condition and results of operation [vermittelt ein den tatsächlichen Verhältnissen entsprechendes Bild der Vermögens,- Finanz- und Ertragslage] as of the date on which the financial statements were prepared. Such certification may either be contained in the relevant financial statement or be a separate certification. |
b) | TheBorrowershall ensure that all financial statements, which it is required to deliver pursuant to subsection 19.1 (Financial statements and reports), were prepared in accordance with theGenerally Accepted Accounting Principlesand, in theBorrower’s case, the commerical law principles for large corporations and using the accounting practices and financial reference periods consistent with those applied to the respectiveOriginal Financial Statements, unless theBorrowerinforms theFacility Agentabout any changes. |
a) | TheBorrower shall provide theFacility Agent (at theFacility Agent’s request, in sufficient quantities for theLenders) with theBusiness Plan for a given fiscal year as soon as it becomes available but no later than thirty (30) days after the commencement of that fiscal year, whereby the first delivery of theBusiness Plan must be made prior to the firstUtilization. | |
b) | TheBorrower shall ensure that eachBusiness Plan: |
(i) | in terms of its form and content matches the sample form agreed to before the conclusion of this Agreement and is acceptable to theFacility Agent and contains in sufficient detail its budgeted unconsolidated (or, if available, consolidated) quarterly income statement, annual balance sheet and cash flow statement, information on budgeted capital expenditures and a comparison to the previousBusiness Plan; |
(ii) | was prepared on the basis of theGenerally Acceptable Accounting Principles and using the accounting practices and financial reference periods consistent with those applied for the annual financial statements set forth under subsection 19.1 (Financial statements and reports); and |
(iii) | was approved by one managing director with sole representational authority or by the registered attorney-in-fact who is responsible for finance at theBorrower. |
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a) | TheBorrower shall provide to theFacility Agent aCompliance Certificate as well as all financial statements that theGuarantoris obligated to file pursuant to subsection 19.1 (Financial statements and reports)(a)(i) or (b), and such certificate shall (in reasonable detail) describe the following: |
(i) | the calculation of theFinancial Ratios provided in section 20 (Financial Ratios) as of the record date for each respective financial statement plus a detailed accounting signed by the CFO or treasurer of theGuarantor; and | ||
(ii) | confirmation that noElement of Default exists. |
b) | EachCompliance Certificate, which must be submitted together with the consolidated annual financial statements of theGuarantor, shall be based on the annual financial statements audited and confirmed by an independent and recognized auditor with respect to the calculation in (a)(i) of this subsection 19.5 and shall contain a list of theGuarantor’s Affiliates that were included in the calculation. |
a) | - at the same time as they are sent — any and all documents that theBorrower sends to all creditors generally; |
b) | - without undue delay upon becoming aware of them — any details concerning all significant insurance cases and significant changes in the project workflow or project structure; |
c) | - without undue delay upon theBorrowerbecoming aware of them — any details concerning any violations of the law and any judicial, arbitral or administrative proceedings of theBorrower (especially also with respect toEnvironmental Claims) or theGuarantor, which have arisen or are pending and which could reasonably be expected to lead to aMaterial Adverse Change; |
d) | - without undue delay upon theBorrowerbecoming aware of it — any and all information regarding an earnestly threatened, written petition to commence bankruptcy or insolvency proceedings against theBorrower’s assets by a third party; |
e) | - if demanded, then without undue delay — any and all additional information and documents relating to the financial situation and business activities of theBorrowerandGuarantor which aFinance Party (through theFacility Agent) may demand in its discretion; |
f) | - if demanded, then without undue delay — any and all additional information, which could be required under bank regulations and legislation; |
g) | - without undue delay after becoming aware of them — any and all details concerning all receivables and sales or other transactions, which could result in a mandatory prepayment under thisAgreement, including aChange of Control or a forthcoming Change of Control; |
h) | - without undue delay — any and all information and documents, which aFinance Party (through theFacility Agent) in its discretion demands with respect to assets that are the subject matter of theTransaction Security or are related to the contractual performance of the obligations of theBorrower or of theGuarantor under theSecurity Documents; |
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i) | - without undue delay after they have been received — copies of any opinions relating to theFinancial Ratiosissued by auditors engaged by theGuarantor, insofar as theGuarantor makes them available to one of its other creditors; and |
j) | - without undue delay after they have been sent — copies of all correspondence with theMandatary, acting in its capacity as the mandatary of the Federal Government and the German State Government of Brandenburg in connection with theFederal/State Guarantor Decision, theDeficiency Guaranty or thisAgreement. |
a) | TheBorrowershall notify theFacility Agent of the existence of anElement of Default without undue delay after learning thereof, and theBorrower shall without undue delay explain what measures it has taken or initiated in order to remedy thisElement of Default. |
b) | Without undue delay following theFacility Agent’s demand, theBorrowershall deliver a confirmation, which is signed either by a managing director with sole representational authority or by two managing directors with joint representational authority or by one managing directing and registered attorney-in-fact collectively and which states that noElement of Default is continuing (or, if anElement of Default is continuing, then indicates whichElement of Default is present and what measures were taken or initiated to eliminate it). |
a) | Without undue delay after theFacility Agent’s request, eachLender shall provide any and all documents and other evidence, which theFacility Agent has reasonably requested, to theFacility Agent so that theFacility Agentcan engage in the “know your customer” check or other identification process which, under the rules for preventing money laundering, is required for the transactions contemplated in theFinance Documents, and in the reviews mandated under the German Banking Act or comparable foreign rules. |
b) | TheBorrowershall ensure that it itself as well as theGuarantorshall — without undue delay after the request is made by theFacility Agent or aLender— provide all documents and evidence, which theFacility Agent (for itself or for aLender) or aLender (or a potential newLender) has reasonably requested, so that theFacility Agent, theLender or the contemplated newLender can engage in the identification measures which, under the provisions for preventing money laundering, are required for the transactions contemplated in theFinance Documents and in the reviews mandated under the German Banking Act or comparable foreign rules. |
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a) | TheFinancial Ratiosmust be tested for eachAudit Period by reference to the quarterly or annual financial statements of theGuarantor, which must be made available in accordance with subsection 19.1 (Financial statements and reports), as of the last day of the financial quarter. The period-base figures factored into theFinancial Ratios (e.g., EBITDA) relate on a rolling basis to each preceding 12-month period. |
b) | AllFinancial Ratios must be calculated on the basis of the the provisions of the 15 October 2010 version of theUS Credit Agreement as modified by the Amendment Agreement dated 6 May 2011. |
c) | The compliance with theFinancial Ratios must also be tested and confirmed by theGuarantor on the basis of the the provisions of the 15 October 2010 version of theUS Credit Agreement as modified by the Amendment Agreement dated 6 May 2011once each fiscal year by reference to the consolidated financial statements of theGuarantorcertified by an independent and recognized auditor. In the event that there are any discrepancies between the calculation of theFinancial Ratios on the basis of the quarterly reports and the one based on the certified consolidated balance sheet of theBorrower, then the testing based on the certified figures will control. |
d) | All accounting, reporting and consolidation principles as well as the accounting terms and concepts, which are not separately defined in thisAgreement, must be construed in accordance with their meaning under the German Commercial Code (HGB) / US GAAP. |
a) | obtain, preserve and comply with theAuthorizations and Approvals that are required by law or other regulations of any applicableRelevant Jurisdiction; and |
b) | and upon reasonable request made, provide to theFacility Agent certified copies of theAuthorizations and Approvals, which are required by law or other regulations of an applicableRelevant Jurisdiction and |
(i) | to perform its obligations under theFinance Documents; |
(ii) | to ensure the legal validity and enforceability of theFinance Documents; and |
(iii) | to continue conducting its operation in the ordinary course of its business and to construct theProduction Facility FFO2 (whereby only short-term interruptions to operations and construction activities are not encompassed by the foregoing). |
a) | comply with all applicable laws and regulatory/judicial orders; and | |
b) | discharge all obligations under contracts with third parties, |
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a) | comply with allEnvironmental Laws; |
b) | obtain, preserve and ensure the compliance with all requiredEnvironmental Approvals; and |
c) | monitor the compliance with theEnvironmental Laws and set up the monitoring structures in order to avoid any liability under anEnvironmental Law, |
a) | Unless otherwise provided under paragraph c) below, theBorrower shall not create, or permit the creation of, any securityin remin its assets. | |
b) | Unless otherwise provided in paragraph c) below, theBorrower shall not: |
(i) | sell, transfer or otherwise conditionally relinquish possession of any assets; or |
(ii) | sell, transfer or otherwise surrender any receivables by way ofRecourse Factoring; |
c) | Paragraphs a) and b) do not apply to: |
(i) | the Transaction Security; |
(ii) | security provided in ordinary banking transactions by theBorrower for the purposes of netting debit and credit account balances orQuasi-Security established on current account balances including any netting and set-off agreements; |
(iii) | liens on bank accounts that are established under standard terms and conditions of any banks or savings banks [Sparkassen] or other financial institutions in Germany or another applicable jurisdiction, with which theBorrower has a banking relationship in the ordinary course of its business; |
(iv) | security orQuasi-Security provided in connection with leases (specifically security deposits) used in theBorrower’s ordinary course of business; |
(v) | title retentions (for security purposes) [Eigentumsvorbehalte] and extended title retentions, which are stipulated in customary agreements with suppliers within the scope of theBorrower’s business purpose and/or under the standard terms and conditions of suppliers; |
(vi) | security orQuasi-Security with respect to an asset, which theBorrower purchases after today’s date, provided that: |
(A) | such security or suchQuasi-Security was not created in connection with the purchase of that asset; |
(B) | theBorrower did not increase the nominal value of the secured liabilities in connection with or since the purchase of that asset; and |
(C) | such security or suchQuasi-Security is repaid or released within six months following the acquisition of that asset; |
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(vii) | security,which is created, or must be provided, by operation of the law; |
(viii) | security orQuasi-Security, which was created on the basis of a judgment, a seizure or an arbitral award, irrespective of whether this constitutes aDefault; |
(ix) | security orQuasi-Security in favor of the Customs office or the financial authorities, which must be posted under legal requirements to secure payment of any import duties and other payments in the ordinary course of business; |
(x) | security created in German real property, to the extent the limitation of such encumbrance would be void pursuant to §1136 BGB; and |
(xi) | security orQuasi-Security, which was provided in connection with factoring transactions permitted in accordance with subsection 21.5b)(iv) (Sales/Disposals); and |
(xii) | security orQuasi-Security, which was provided or may continue to exist with the consent of theMajority Lenders. |
a) | Unless otherwise provided under paragraph b) below, theBorrower shall neither sell nor otherwise dispose of assets, whether in one or more transactions. | |
b) | Subsection a) does not apply to sales or other disposals: |
(i) | of current assets (including any cash or cash equivalents) in connection with the ordinary business activities of theBorrower; |
(ii) | of assets (excluding shares of companies, business units, real estate, trademarks, patents) in exchange for other assets of the same kind and of comparable or high value; |
(iii) | of assets (excluding shares of companies, business units, real estate, trademarks, patents), which are no longer needed for theBorrower’s business operation; | ||
(iv) | factoring transactions, which do not constituteRecourse Factoring; |
(v) | and which are allowed under paragraph c) of subsection 21.4 (Negative pledges); | ||
(vi) | of real estate, if the restraint on alienation would be void under §1136 BGB; |
(vii) | for any payments made as consideration for a disposal or measure permitted under this Agreement and any payments toAffiliateswhich are permitted under thisAgreement; | ||
(viii) | made with the prior consent of theMajority Lenders; and |
(ix) | of assets (excluding shares of companies, business units, real estate, trademarks, patents), for which the market value or the consideration paid, whichever is higher, does not exceed a total amount (for all sales and disposals that are not allowed under the foregoing subparagraphs (i) through (vii)) of EUR 10,000,000 (if applicable, following conversion into euro) in theBorrower’s respective fiscal year. |
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a) | TheBorrower shall pay theTaxes, which it owes, in a timely and punctual manner (in accordance with any payment periods granted), unless |
(i) | there are grounds for disputing the tax liability; |
(ii) | an adequate provision has been set aside for suchTaxes and for the costs of the proceedings and any such provision has been recorded in the financial statements delivered to theFacility Agent pursuant to subsection 19.1(Financial statements and reports); and |
(iii) | a non-payment or late payment of suchTaxes would not lead to aMaterial Adverse Change. |
b) | TheBorrower will keep its tax domicile in the Federal Republic of Germany. |
a) | adopt resolutions authorizing the payment of, or pay, dividends or other distributions or other payments (or interest on unpaid dividends, distributions or other payments) (whether in cash or in kind) with respect to, its share capital or its shares; |
b) | distribute or pay out dividend reserves or premiums or undertake other distributions of earnings, capital accounts or reserves; |
c) | pay management, advisory or other fees to or for the benefit of shareholders or affiliates of the Guarantor; or |
d) | reduce share capital, dissolve capital reserves, cancel shares, buy back shares or adopt resolutions with respect thereto. |
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a) | Except as provided in paragraph b) below, theBorrower shall not incur, or allow to remain outstanding, anyFinancial Indebtedness. | |
b) | Paragraph a) does not apply to: |
(i) | Financial Indebtedness under theFinance Documents; |
(ii) | Financial Indebtedness,which is created as a result of a measure allowed under subsection 21.12 (Grant of loans) or a guaranty or securityin personam (third party credit support) allowed under subsection 21.15 (No guarantees or indemnities); |
(iii) | Financial Indebtedness,which is allowed under subsections 7.1c)(ii) or 7.9d)(ii); | ||
(iv) | Financial Indebtednessowed toAffiliates; |
(v) | Financial Indebtedness, which is allowed under subsection 21.21 (Hedging Transactions) |
(vi) | otherFinancial Indebtedness, which is not allowed under the foregoing subparagraphs (i) through (v), but which at no time exceeds the total amount of EUR 10,000,000; and |
(vii) | Financial Indebtedness, which was incurred with the consent of theMajority Lenders. |
a) | Except as provided in paragraph b) below, theBorrower shall not grant any loans or engage in any transactions for the economic purpose of granting a loan. | |
b) | Paragraph a) does not apply to: |
(i) | any agreement to extend the payment terms in the course of business relating to the sale and production of solar modules by up to one hundred and eighty (180) days; |
(ii) | prepayments in the course of business relating to the sale and production of solar modules, but no earlier than one hundred and eighty (180) days before their due date; |
(iii) | granting loans toAffiliates insofar as a dividend in the same amount would have been permissible in accordance with section 21.12 (Dividends, distributions and share buybacks); | ||
(iv) | other loans, which at no time exceed the total amount of EUR 10,000,000; and |
(v) | the grant or extension of loans with the consent of theMajority Lenders. |
a) | Except as provided in paragraph b) below, theBorrower shall not incur, or allow to remain outstanding, any guarantees, suretyships [Bürgschaften] or other securityin personam provided to support the obligations of another person (not even for anAffiliate). | |
b) | Paragraph a) will not apply to the following securityin personam: |
(i) | securityin personam, which is based onFinance Documents; |
(ii) | warranties, guarantees on characteristics, indemnities and other liabilities, which are provided in customary sales documentation for any sale or disposal allowed under subsection 21.5 (Sales/Disposals) and which are assumed in a customary form, subject to customary restrictions and in a form considered customary for such transaction; |
(iii) | guarantees, suretyships or other guarantee-like promises made by theBorrower, which are intended to guarantee the performance duty that is owed by theBorrower under a contract and incurred in the course of its ordinary business dealings; |
(iv) | endorsed negotiable instruments executed in the ordinary course of business; |
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(v) | other securityin personam, which at no time exceeds a total amount of EUR 10,000,000; or |
(vi) | securityin personam, which was granted with the consent of theMajority Lenders. |
a) | Except as permitted under paragraph b) below, theBorrower shall not, without the consent of theMajority Lenders, |
(i) | acquire the shares of a company or business operation, or participate therein; |
(ii) | invest or otherwise participate in, or acquire the shares of, any Joint Ventures; or |
(iii) | transfer or loan-out assets to aJoint Venture or grant a guarantee, suretyship or other indemnity, security orQuasi-Security to support the liabilities of aJoint Venture or, in any other manner, preserve the solvency of aJoint Venture or supply of working capital to aJoint Venture (in each case including theGroup’sJoint Venturesexisting at the time of thisAgreement). |
b) | Paragraph a) does not apply, to the extent that: |
(i) | the acquisition involves registered shell companies (Mantelgesellschaften) or shares of other companies that engage in the business of producing or selling solar modules and operating solar facilities or, as the case may be, in closely related fields connected to the solar industry; and |
(ii) | theBorrower’s potential liability under a piercing the corporate veil theory has been excluded, either contractually or by law, to the extent such liability has not been expressly allowed under this Agreement. |
(i) | must maintain the validity of theIndustrial Property Rights that are necessary for its business (specifically operating theProduction Facility FFO2); |
(ii) | must take reasonable steps to prevent any infringement of theIndustrial Property Rights; |
(iii) | must make all registrations and pay all fees andTaxes that are necessary to maintain itsIndustrial Property Rights and must record its entitlement to thoseIndustrial Property Rights; |
(iv) | must ensure that itsIndustrial Property Rights are not used in a way that could have a material adverse effect on the existence or value of theIndustrial Property Rights or that could imperil the right of anyGroup Company to use suchIndustrial Property Rights; and |
(v) | may not discontinue the use of itsIndustrial Property Rights; |
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(i) | at any time during normal business hours even without prior notice in the event that there is anElement of Default; and |
(ii) | during normal business hours and following prior consent of at least 5Business Days, but no more than twice per calendar year in order to avoid unreasonable disruptions to business operations, in the event that such access is fairly demanded by theFacility Agent or theSecurity Agent, but only as long as noDefault orPotential Default persists, |
a) | Unless otherwise permitted in paragraph b), theBorrower shall not allow any newly formed company or acquired shell company to commence business activities or to manage assets. | |
b) | Paragraph a) does not apply, to the extent that: |
(i) | the companies, which are formed or whose business operations are commenced, are companies that engage in the business of producing and selling solar modules and operating solar facilities or, as the case may be, in closely-related fields with connections to the solar industry; and |
(ii) | theBorrower’s potential liability under a piercing the corporate veil theory has been excluded, either contractually or by law, to the extent such liability has not been expressly allowed under this Agreement. |
(i) | EUR 30,000,000; or |
(ii) | the sum of all claims, which are held by all of theFinance Parties and which are still outstanding under thisAgreement, less the positive account balance available on theDebt Service Reserve Account. |
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a) | The funds provided by theFacility are used for purposes other than those described in section 3 (Purpose). |
b) | TheBorroweror theGuarantor breaches otherFinance Documentprovisions that are not listed in subsection 22.1 (Non-payment) and subsection 22.2 (Financial ratios). |
c) | ADefault pursuant to the foregoing paragraphs a) and b) will not be deemed to occur, if the breach can be cured and is cured within fifteen (15)Business Days after theFacility Agents give theBorrower notice of the breach or from the date theBorrower learns of the breach, whichever is sooner. |
a) | A representation or statement [Feststellung], which is contained in theFinance Documents and which was made, or is deemed to have been made, by theBorroweror theGuarantor, is or proves to be incorrect or misleading. |
b) | ADefault in accordance with the foregoing paragraph a) will not be deemed to occur, if the breach can be cured and is cured within fifteen (15)Business Days after theFacility Agents give theBorrower notice of the breach or from the date theBorrower learns of the breach, whichever is sooner. |
a) | AnyFinancial Indebtedness of theBorrower or of theGuarantor is not paid when due or within the originally applicable grace period. |
b) | AnyFinancial Indebtedness of theBorrower or of theGuarantor is declared to be, or otherwise becomes, due and payable prior to its specified maturity as a result of aDefault (however described, including a contractual breach). |
c) | Any commitment for anyFinancial Indebtedness of theBorrower or of theGuarantor is revoked, reduced or suspended by the creditor as a result of aDefault (however described, including a contractual breach). |
d) | Any creditor of theBorrower or of theGuarantor is entitled to declare aFinancial Indebtedness due and payable prior to its specified maturity (however described, including a contractual breach) as a result of aDefault. |
e) | NoDefault will be deemed to occur in accordance with this subsection 22.5, if with respect to |
(i) | theBorrower, the aggregate sum of allFinancial Indebtedness under the foregoing paragraphs a) through d) is less than EUR 5,000,000 (if applicable, following conversion into euro); or |
(ii) | theGuarantor, the aggregate amount of theFinancial Indebtedness under the foregoing paragraphs a) through d) is less than USD 20,000,000 (if applicable, following conversion into euro). |
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a) | TheBorrower |
(i) | is unable to pay its debts as they fall due within the meaning of § 17 (Inability to Pay Current Debts) of the Insolvency Code (InsO); | ||
(ii) | is over-indebted within the meaning of § 19 InsO (Over-Indebtedness); |
(iii) | suspends payments towards its liabilities in general or announces such course of action; or |
(iv) | due to current or threatened financial difficulties, commences negotiations with one or more major creditors with respect to restructuring or rescheduling its indebtedness (even partial). |
b) | TheGuarantor is unable to pay its debts as they fall due or gives notice of such inability, suspends payments towards its liabilities or, due to current or threatened financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling its indebtedness. |
c) | A moratorium is declared with respect to any indebtedness of theBorrower or of theGuarantor. If a moratorium occurs, the ending of the moratorium will not remedy anyDefault caused by that moratorium. |
a) | a suspension of payments, a moratorium of indebtedness, liquidation, dissolution or restructuring (by way of voluntary arrangements, scheme recommendations, bankruptcy plan or similar measures) or another settlement or arrangement is made with creditors in each case with a view towards avoiding insolvency of theBorrower; | |
b) | a decision by the shareholders or managing directors to file a petition for insolvency; |
c) | the filing of a petition for insolvency with the competent insolvency court, unless the petition was filed by a third party creditor, is contested on reasonable grounds (to be furnished to theFacility Agent) and is withdrawn or rejected within twenty (20)Business Days; | |
d) | protective measures as taken by a court pursuant to § 21 InsO; | |
e) | an order to commence insolvency as issued pursuant to § 27 InsO; or |
f) | the appointment of a preliminary insolvency administrator, an insolvency administrator, a special custodian [Sachwalter] or a comparable administrator. |
a) | It is or becomes unlawful for theBorrower or theGuarantor to perform any of its obligations under theFinance Documents. |
b) | AFinance Document or a provision contained therein becomes invalid, except for the factual situations referenced in theLegalReservations, and that invalidity materially and adversely prejudices (either alone or cumulatively) the interests of theLender under theFinance Documents, or one of the items serving as theTransaction Security loses its lawfulness, validity, binding effect or enforceability or a party to aFinance Document (with the exception of aFinance Party) alleges such invalidity. |
c) | TheBorrower or theGuarantor refuses to perform a material obligation under aFinance Document, announces its intention not to perform, or seeks to formally rescind (void) aFinance Document. |
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a) | Litigation, arbitration or other proceedings or investigations are commenced in relation to theBorrower, its assets, theFinance Documents or any legally binding transactions contained therein, and theBorrower is reasonably likely not to prevail in those proceedings and investigations, and if it indeed does not prevail, those proceedings and investigations will, with reasonable likelihood, lead to aMaterial Adverse Change. |
b) | TheBorrower fails to satisfy an enforceable judgment or arbitral award or a regulatory order, or it otherwise averts compulsory enforcement, and the aggregate amount of the payments required to satisfy such obligations or expenditures exceeds EUR 2,500,000 (if applicable, following conversion into euro) and is not paid within fifteen (15)Business Days. |
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a) | refuse any additionalUtilization under theFacility; | |
b) | terminate all or some of theCommitments, which will immediately extinguish them; |
c) | accelerate allLoans, together with all accrued interest, as well as all other payments still outstanding under theFinance Documents, either in whole or in part with immediate effect, which will render such payments immediately due and payable; or |
d) | exercise all rights, remedies, powers of attorney and its discretion under theFinance Documents, including the enforcement of anyTransaction Security in accordance with the terms and conditions of theSecurity Documents or shall direct thenSecurity Agent to do so. |
a) | EachFinance Party (with the exception of theFacility Agent): |
(i) | hereby appoints theFacility Agent to act as its representative in connection with theFinance Documents; |
(ii) | authorizes theFacility Agent to exercise all rights, powers and discretionary decisions, which were granted to it under or in connection with theFinance Documents or which are related thereto; and |
(iii) | hereby exempts theFacility Agentfrom the self-dealing restrictions of § 181 BGB and from similar limitations under any other applicable law, to the extent this is legally possible for theFinance Party in question. If, based on its articles of association, aFinance Partydoes not have the authority to grant an exemption from § 181 BGB (or from similar limitations under other laws), then it shall inform theFacility Agentthereof. |
c) | TheFacility Agentis authorized to grant substitute powers of attorney. If theFacility Agentgrants a substitute power of attorney, then it will be authorized to exempt the substitute agents from the self-dealing restrictions under § 181 BGB (or from similar limitations under other laws). |
a) | Subject to the provision under paragraph b) below, theFacility Agent shall without undue delay forward to anotherParty the original or copy of any document, which it has received on thatParty’sbehalf from anotherParty. |
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b) | Notwithstanding the provisions under subsection 28.5 (Transfer procedure), paragraph a) will not apply toTransfer Certificates. |
c) | Unless specifically provided otherwise in a givenFinance Document, theFacility Agent will not be obligated to review the documents, which it forwards to anotherParty, or to assess their reasonableness, completeness or accuracy. | |
d) | If theFacility Agent: |
(i) | in referencing thisAgreement, receives from aParty a notice describing the circumstances of anElement of Defaultand is informed that they constitute anElement of Default; or |
(ii) | learns of the non-payment of nominal amounts, interest or fees or other costs, which are owed to aFinance Party (with the exception of theAdministrative Parties) under thisAgreement, |
e) | TheFacility Agentwill have only those duties that are expressly stipulated in theFinance Documents. These duties are merely of a technical and administrative nature. |
f) | TheFacility Agentis under no obligation to monitor or research whether anElement of Defaulthas occurred. It may not be assumed that theFacility Agent has knowledge that an Element of Defaulthas occurred. |
a) | No provision under thisAgreement shall be construed as an appointment of theFacility Agent or theArranger to act as fiduciary or trustee [Treuhänder] for anotherParty. NoAdministrative Party will owe a financial or commercial duty of care [Vermögensfürsorgepflicht] to another person. |
b) | Neither theFacility Agent nor theArranger is under any obligation to account to the otherFinance Party about an amount defined for its invoice or the gain it may derive therefrom. |
a) | TheFacility Agentmay: |
(i) | rely on any representation, notice or document which it considers to be genuine, true and duly signed by a person with signing authority; and |
(ii) | rely on any statement, which is given by a managing director, authorized signatory or employee of a person with respect to matters, about which it may be assumed, upon reasonable assessment, that those matters fall within that person’s sphere of knowledge or that they could have been reviewed by such person. |
b) | To the extent that it has not, in its capacity as agent for theLender, received any notice to the contrary, theFacility Agentmay assume that |
(i) | noElement of Default has occurred, unless it has actual knowledge of a non-payment pursuant to subsection 22.1 (Non-payment); |
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(ii) | neither aParty nor theMajority Lenders have exercised their rights, powers or discretion; and |
(iii) | each notice or inquiry made by theBorrower (with the exception of theUtilization Request) has also been also given for the otherGroup Companieswith their knowledge and consent. |
c) | TheFacility Agent may retain, pay and rely on attorneys, auditors, experts and other advisors. |
d) | TheFacility Agentmay discharge its responsibilities under theFinance Documentsthrough employees and representatives. |
e) | TheFacility Agentis entitled, in its discretion, to forward to eachParty under thisAgreement any information, which it can fairly assume was received by it in its role as agent under thisAgreement. |
f) | Above all, theFacility Agent may, in its discretion, disclose the identity of aLender in Defaultto theLenders and theBorrower. If theMajority Lenders or theBorrowerdemand that it make a disclosure, then it will be obligated to do so. |
g) | Notwithstanding any other provisions under thisAgreement, theFacility Agentand theArranger may elect not to act (including disclosing information) if, in their opinion, such an act would lead to a violation of a law, a regulation, its financial or commercial duties of care or confidentiality obligations or to prosecution and may take any and all action which, in their opinion, is necessary or conducive for complying with all laws, regulations, financial or commercial duties of care or confidentiality obligations. |
h) | TheFacility Agentis not obligated to provide aFinance Partywith information concerning the interest rate that is communicated by aLenderpursuant to subsection 0 (Market disruption) a) (ii). |
a) | Unless otherwise provided in aFinance Document, (i) theFacility Agent must exercise all rights, powers and discretionary decisions, to which it is entitled asFacility Agent,in accordance with any directives issued by theMajority Lenders or, as the case may be, refrain from such exercise and (ii) theFacility Agent will not be held liable for any acts or omissions, which result from a directive issued by theMajority Lenders. |
b) | Unless otherwise provided in aFinance Document, all instructions given by theMajority Lenders will be binding upon allLenders. |
c) | Before executing an instruction, theFacility Agentmay request that theLenders provide adequate security to cover the possible costs, expenses, damages or liabilities (including any value added tax that may apply), which could arise in connection with fulfilling the instruction, and may refrain from executing an instruction of theMajority Lenders (or, if applicable, allLenders) until it has received the security it requested. |
d) | In the absence of any directives from theMajority Lenders (or, if applicable, allLenders), theFacility Agentmay act, or refrain from acting, in the putative best interests of theLenders. |
e) | TheFacility Agent is not authorized, without the consent of the relevantLender, to represent thatLender in any judicial or arbitral proceedings in connection with theFinance Documents. |
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a) | for the reasonableness, accuracy and/or completeness of any information (whether provided orally or in writing) which is furnished by anAdministrative Party, aGroup Company or any other person pursuant to or in connection with aFinance Documentor theInformation Package; |
b) | for the lawfulness, validity, effectiveness, reasonableness or enforceability of aFinance Document, aTransaction Security or other contract, agreement or document which was signed or assumed in anticipation of, or in connection with, aFinance Documentor aTransaction Security; and |
c) | for determining whether the information, was or will be made available to aFinance Party, was non-public information, the use of which is restricted or limited by law or under the rules on insider trading or similar provisions. |
a) | Notwithstanding paragraph b) below, anAdministrative Party will be held liable for breaching duties in connection with theFinance Documents or theTransaction Security only if such breach was the result of an intentional act or omission and gross negligence. |
b) | With the exception of theFacility Agent, noParty to thisAgreementmay institute any proceedings against a governing body, an employee or an agent of theFacility Agent with respect to a claim, to which it is entitled and which is based on an act or omission of such person in connection with aFinance Document, and each governing body, employee or agent of theFacility Agent will be entitled under this subsection 23.9 to its own claim in accordance with § 328 (1) BGB (true third party beneficiary contract). |
c) | TheFacility Agent will not be liable for any delays (or the related consequences thereof) in crediting an account with funds that must be paid by theFacility Agent under aFinance Document, provided that theFacility Agent had taken, as soon as possible, all steps necessary to comply with the rules or procedural regulations of a recognized clearing or payment system used by theFacility Agentfor this purpose. |
d) | NoAdministrative Party will be obligated to administer any identification duties or other obligations under the applicable money laundering laws on behalf of anotherFinance Party, and eachLender confirms to theAdministrative Parties that it alone is responsible for implementing such procedures and that it may not rely on the information from theAdministrative Parties regarding such inspections. |
a) | EachLender shall, in accordance with itsPro RataShareandwithin three (3)Business Days from receipt of the corresponding request, indemnify eachAgent with respect to, and hold eachAgentharmless from, any and all costs and damages which suchAgent incurs in its capacity asAgent under theFinance Documents(except in the event of an intentional act or omission and gross negligence on the part of the respectiveAgent and only to the extent that the relevantAgent was not indemnified by theBorrower under the terms of aFinance Document). |
b) | To the extent that theLender’s claims under theFinance Documentsare satisfied by utilizing theDeficiency Guarantee, the respectiveLenders will remain liable to theAgents within the scope set forth under this subsection 23.10 (Liability release), as if no such satisfaction has occurred. This will also apply to the extent that theState Guarantor subrogates to theLender’s receivables or otherwise becomes aParty to aFinance Document. |
a) | TheFacility AGENTmay resign and name as its successor one of itsAffiliates upon notifying the otherFinance Parties. |
b) | TheFacility Agent may also resign by notifying theLender and theBorrower without naming a successor. In that case, theMajority Lenders (after conferring with theBorrower) may stipulate a successor. |
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c) | If, within thirty (30) days after notification of the resignation, no successor has been named by theMajority Lenders, then the resigningFacility Agent (after conferring with theBorrower) may name a successor. |
d) | The resigningFacility Agent must furnish all documents and written materials to its successor and provide support to the extent that the successor can fairly demand such support in order to perform its role as theFacility Agentunder the terms of theFinance Documents. If the resigningFacility Agentis anImpaired Facility Agent, then it must provide such support at its own expense. |
e) | The resignation of theFacility Agent will not become effective until its successor has been appointed. |
f) | As soon as its successor is appointed, the resigningFacility Agent(subject to paragraph d) above) will be released from all further obligations under theFinance Documents. Nevertheless, the provisions under this subsection 23 (Syndication Agreement) will continue to apply to its benefit. The rights and duties between the successor and each otherParty will then be the same as the rights and duties that would have existed between them had the successor been aParty to thisAgreement at the time it was signed. |
g) | After conferring with theBorrower, theMajority Lendersmay demand that theFacility Agent resign in accordance with paragraph b) above and may in that case determine a successor directly. TheFacility Agentshall honor this request as of the date of the successor appointment stipulated by theMajority LENDERS. |
h) | TheBorroweragrees to indemnify and hold harmless theFinance Partieswith respect to the costs and expenses which they incurred in connection with this subsection 23.11 (Resignation of the Facility Agent). |
a) | With respect to its actions as representative of theFinance Parties,the competent department of theFacility Agent will be treated as an organizational unit that is separate and distinct from theFacility Agent’s other units and departments. |
b) | Any information, which another department of theFacility Agent has received, will be deemed confidential information of the effected department, and theFacility Agent shall be deemed not to have had any notice thereof. |
a) | EachAgent may treat any person, who at the commencement of a business day (as defined at the place, which theFacility Agent has indicated to theFinance Partiesis its principal place of business) is listed as aLender in its documents, as aLender with a relevantfacility Office and may assume that it is authorized to take receipt of any notice, application, document or communication, which is made on that day in accordance with theFinance Document,and to handle them accordingly or make a decision or determination, until it is notified by the relevantCreditor otherwise with at least five (5) Business Daysprior notice and in accordance with the terms and conditions of thisAgreement. |
b) | EachLender shall provide theFacility Agent with the information required to calculate theMandatory Costs. |
c) | TheFacility Agentmust maintain a list of allParties and must provide eachPartywith a copy of this list upon their request. The list will include theFacility Officeof eachLenderas well as its address for purposes of thisAgreement. |
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d) | EachLender may, upon giving notice to theFacility Agents,appoint for itself an authorized recipient for purposes of theFinance Documentsand therefore any related written materials, information, notices and documents. This notice must contain the address, fax number and (if communication is handledviaemail or other electronic mail under subsection 33.1 (Communications in writing)) e-mail addresses and/or any other information that is required in order to send and receive information by such means (as well as the persons or departments to whose attention it should be sent). Any such notice shall be deemed to replace the information, which the relevantLendermade for purposes of subsection 33.2 (Addresses for communications), and theFacility Agentmay treat such persons as being an authorized recipient to the same extent as theLender in question. |
e) | If anAdministrative Partyis also aLender, then it will have the same rights and powers under theFinance Documentsas any otherLender and may exercise such rights and powers as if it were not anAdministrative Party. |
a) | the financial conditions and affairs of theBorrower, Guarantorand eachGroup Company; |
b) | the lawfulness, effectiveness, reasonableness or enforceability of theFinance Documentsand theTransaction Security or any other contract, agreement or document, which was signed or assumed in anticipation of, or in connection with, aFinance DocumentorTransaction Security; |
c) | the question of whether and — if yes — to what extent it would be entitled as a secured party to have recourse against aParty or its assets pursuant to or in connection with theFinance Documents, theTransaction Securityor the other contracts, agreements or documents, which were signed or assumed in anticipation thereof or in connection therewith; |
d) | the reasonableness, accuracy and/or completeness of theInformation Package, the application documentation for theDeficiency Guaranty and any other information, which was made available by anAdministrative Party, aParty or any other person pursuant to or in connection with theFinance Documents, the transactions contemplated therein or other contracts, agreements or documents, which were signed or assumed in anticipation thereof or in connection therewith; | |
e) | the identification and other duties imposed under the applicable money laundering laws; and |
f) | the ownership status in, and a person’s power of dominion over, theTransaction Security, the appraisal or reasonableness thereof, the ranking of theTransaction Security or any existing encumbrances of theTransaction Security caused by security interests. |
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a) | hereby appoints theSecurity Agent as its trustee, representative and authorized agent and hereby irrevocably authorizes theSecurity Agent (with the right to delegate this authority) to administer and execute the rights of theFinance Parties vis-à-vis theBorrowerand the Guarantor and amongFinance Parties arising from theTransaction Security (including the creation, amendment, supplementation, maintenance and release of theTransaction Security as well as all acts in connection with the registration and deregistration); |
b) | hereby authorizes theSecurity Agent to undertake all tasks expressly assigned to theSecurity Agent in theSecurity Documents and in the otherFinance Documents and thus all directly and indirectly associated tasks and necessary or beneficial acts, to deliver declarations and exercise rights; and |
c) | hereby exempts theSecurity Agent from the self-dealing restrictions of § 181 BGB and similar restrictions under other applicable law, provided that this is legally possible for the relevantFinance Party. If anyFinance Party, based on its articles of association internal rules of procedure, is not authorized to grant an exemption from § 181 BGB (or similar limitations under other legal systems), it shall inform theSecurity Agentthereof. |
a) | hold and administer non-accessoryTransaction Security (including certain “equitable” liens [Sicherungseigentum] and claims and rights assigned as security) in its own name but for the account of theFinance Parties; |
b) | hold accessoryTransaction Security (including liens [Pfandrechte] and suretyships) in its own name (with reference to its own rights under theFinance Documents particularly also section 24.13 (Abstract acknowledgment of debt)) and administer these forms of security in its own name and in the name of theFinance Parties for the account of theFinance Parties; and |
c) | provide electronic copies of theSecurity Documents to the otherFinance Parties on request for independent review. |
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a) | shall act in accordance with the instructions issued by theMajority Lenders or, if so instructed by theMajority Lenders,shall refrain from exercising the rights and powers to which it is authorized asSecurity Agent; |
b) | may rely on the fact that the (i) instructions of theFacility Agentor some or all of theLendersmeet the terms and conditions of theFinance Documents and (ii) that the instructions have not been cancelled, unless it has received such a cancellation; |
c) | is entitled to request instructions or clarification of any instructions from theMajority Lenders as to whether and how it should exercise its rights, powers and discretion, or refrain therefrom, and it may refrain from action until it receives such instructions or clarifications; |
d) | shall, within its discretion to exercise its rights or powers under thisAgreement, in cases where it has not received any instruction from theMajority Lenders with respect to the exercising of its discretion, exercise its discretion taking into account the interests of allFinance Parties; |
e) | is entitled in its sole discretion to forward to eachParty to thisAgreement all information, which it can fairly assume it received as an agent under thisAgreement; |
f) | is entitled but not obligated to exercise all control and administration rights resulting under theSecurity Documents in its own name; and |
g) | may place proceeds from the realization of security into short-term interest-bearing investment, but shall return these as soon as possible to theFinance Parties pursuant to thisAgreement. |
(i) | if thisAgreement contains a provision to the contrary; |
(ii) | if thisAgreement obligates theSecurity Agent to take a specific course of action; or |
(iii) | with respect to provisions protecting theSecurity Agent’s own interests (as opposed to its role asSecurity Agent for theFinance Parties), including sections 24.7 (Discretion of the Security Agent) to 24.19 (Set-off by the Security Agent). |
a) | TheSecurity Agent is not entitled to represent aLenderin court or arbitration proceedings in connection with theFinance Documents without the prior consent of the affectedLender. This subsection a) shall not apply to court or arbitration proceedings concerning the validity, maintenance or protection of the rights resulting under theSecurity Documents or the enforcement thereof. |
b) | EveryLender shall provide theSecurity Agent with any information needed or requested for the performance of its tasks. |
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a) | TheSecurity Agent may: |
(i) | assume, unless theFacility Agent informs it otherwise, that (i) noDefault has occurred and theBorrower and theGuarantorare in compliance with all terms and conditions of theFinance Documents, and (ii) noParty or theMajority Lenders have exercised their rights, authorizations or discretion; |
(ii) | assume, when he receives instructions with respect to the realization as per section 24.15 (Realization or sale of Security), that the conditions necessary under theFinance Documents to execute these instructions have occurred; |
(iii) | engage, pay and rely on auditors, experts, tax consultants or other consultants (including consultants who work for anotherParty) whose advice or services it deems necessary or desirable at that time; |
(iv) | rely on an assurance, notification or document, which it deems to be genuine, correct and signed by an authorized signatory; |
(v) | rely on a declaration issued by a managing director, authorized signatory or employees of a person with respect to matters which it can be reasonably assumed fall into the sphere of knowledge of such person or could be verified by that person; |
(vi) | discharge its tasks under theFinance Documents through employees and representatives; and |
(vii) | prior to carrying out an instruction (including prosecution or the institution of court proceedings in connection with theFinance Documents) or any other measure indicated by theMajority Lenders,request the provision of sufficient security to it with respect to potentially incurring costs, expenditures, damages or liability, and may abstain from executing an instruction of theMajority Lenders (or, if applicable, allLenders) until it receives the requested security. |
b) | Notwithstanding any other provisions of thisAgreement, theSecurity Agent may elect not to act (including disclosing information) if, in their opinion (irrespective of the applicable law), such an act would lead to a violation of a law, a regulation, its financial or commercial duties of care or confidentiality obligations or to prosecution and may take any and all action which, in their opinion, is necessary or conducive for complying with all laws, regulations, financial or commercial duties of care or confidentiality obligations. |
c) | With the exception of theSecurity Agent, noParty to thisAgreement may institute proceedings against a governing body, an employee or one of the authorized agents of theSecurity Agentwith respect to a claim to which it is entitled due to an act or omission of this governing body/ person in connection with aFinance Document or aTransaction Security and every governing body, employee or authorized agent of theSecurity Agentis entitled to a claim pursuant to § 328 (1) BGB under this section 24.7 (true third party beneficiary contract). |
a) | should without undue delay forward to theFacility Agent a copy of every notice or every document it receives from theBorrowerin connection with anyFinance Document; |
b) | shall forward the original or a copy of every document to thatParty on behalf of which theSecurity Agent received this from anotherParty. Except as otherwise expressly provided in anyFinance Document, theSecurity Agent is not obligated to review the documents it forwards to anotherParty, nor is it obligated to examine such documents for their acceptability, completeness or correctness; and |
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c) | shall without undue delay inform theFacility Agent of the occurrence of anElement of Default or if theBorrower does not comply with its obligations under theFinance Documents in a timely manner, provided theSecurity Agent is informed hereof by anotherParty. |
a) | not obligated to monitor or investigate whether (i) aElement of Default has occurred, (ii) realization measures should be taken with respect to theTransaction Security, or (iii) theBorrower is in compliance with its obligations under theFinance Documents or is in default or in breach thereof; |
b) | not obligated to render account to any otherPartyof any amount specified for the account of theSecurity Agent or of the gain resulting therefrom; |
c) | not obligated to disclose to any otherParty (including theLender) (i) confidential information or (ii) any other information, if such disclosure would result in, or theSecurity Agent, in its reasonable estimation, may assume that this would result in, a violation of the law or the breaching of a financial or commercial duty of care; and | |
d) | not to be deemed a trustee or representative of theBorrower. |
a) | shall be liable for breaches of duty under thisAgreement and theSecurity Documents only in cases of intentional acts or omissions and gross negligence; |
b) | is not responsible for loss, devaluation or depreciation of theTransaction Security. It is liable neither for safekeeping of collateral itself, nor for safekeeping by a third party; |
c) | is not obligated to insure the collateral or to cause another person to insure it or ensure that such person comply with its obligation under theFinance Documents to obtain and/or maintain insurance coverage. It is not liable for damages incurred by any person due to the lack of or inadequacy of the insurance coverage. If theSecurity Agent is recorded as being an insured party in any insurance policy or if a risk coverage certificate was issued for theSecurity Agent, then theSecurity Agent shall not be responsible for damages incurred because it did not inform the insurer of a key fact concerning the insurance risk of this insurer, unless theFacility Agent requested that theSecurity Agent do so and theSecurity Agent did not comply with this request within 14 days after the receipt of the request; |
d) | is not obligated to take measures to ensure the effectiveness of theSecurity Documents or the provision of theTransaction Security, or to ask theBorroweror the Guarantor to take such measures; |
e) | is not obligated to register theTransaction Security, file applications, protect the order of priority, or to make notices or reports to any person regarding the conclusion of theFinance Documents or theTransaction Security; |
f) | assumes no liability for the effectiveness or enforceability of theTransaction Security or for the fact that the actual amount of theTransaction Security suffices to secure the applicable claims of theFinance Parties; and |
g) | is not obligated to verify or investigate that theBorroweris the owner of the collateral and may dispose freely thereof and is not required to ask theBorrowerto rectify any potentially existing defects in the ownership structure. |
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a) | The Borrowerhereby agrees vis-à-vis theSecurity Agent by way of an abstract and independent (non-accessary) acknowledgment of debt [abstrakte Schuldversprechen] within the meaning of § 780 BGB to pay amounts to theSecurity Agent as an independent creditor and not as a representative of theFinance Parties; the sum and currency of such amounts shall equal the amounts owed by theBorrowerto theFinance Parties under theFinance Documents if and when these amounts become due and payable. |
b) | TheSecurity Agent has the independent right to demand and keep the complete or partial payment of amounts owed by theBorrowerunder this section 24.13. |
c) | Every amount due under this subsection 24.12 and owed by theBorrowerto theSecurity Agent shall be reduced to the extent that the otherFinance Parties have definitively and conclusively received payment of a corresponding amount under the other provisions of theFinance Documents, and the amounts owed under these other provisions shall be reduced to the extent that theSecurity Agent has definitively and conclusively received a corresponding amount under this section 24.12, whereas neither theBorrower nor theGuarantor may fulfill an obligation vis-à-vis aFinance Party through set-off or other similar defenses vis-à-vis theSecurity Agent. |
d) | The rights of theFinance Parties to the payment of amounts owned by theBorrowerunder aFinance Document are independent of one another and without prejudice to the payment claims of theSecurity Agent under this section 24.13. |
a) | TheSecurity Agent is entitled to release all or some of theTransaction Security with the consent of theFacility Agent (acting, where applicable, in accordance with the reservations of consent set forth below). IfTransaction Security is released under a release obligation already prior to the repayment of all secured obligations, then the consent of theFacility Agent is also required for the selection of the security to be released. |
b) | The release ofTransaction Security prior to complete satisfaction of the secured claims requires (subject to the other provisions of this section 24.14) the consent of allLenders. |
c) | TheParties to thisAgreement acknowledge that an authorization is granted in individualSecurity Documents to dispose of certain collateral in the scope set forth in theFinance Documents. For such dispositions, no separate release or additional consent is required by theLender in this respect. To the extent that, based on the structure of the security right, it is necessary that theSecurity Agent deliver a separate release declaration in this respect, no additional consent by theLender is required. |
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d) | Release requests from theBorrower are required to be in writing and must be directed to theSecurity Agent with a copy to theFacility Agents). |
a) | TheSecurity Agent shall solely realize or sell theTransaction Security upon written instruction of theFacility Agent in accordance with the provisions of theSecurity Documents. In so doing, theSecurity Agent shall comply with the instructions of theFacility Agent. TheSecurity Agent is entitled, but not obligated, to obtain instructions prior to realization negotiations. To the extent that no instructions exist, theSecurity Agent shall take all necessary and useful measures for the realization according to its dutiful discretion. |
b) | The proceeds from the sale or realization ofTransaction Security must be distributed according to the following order of priority: |
(i) | first, as apro ratapayment of theAdministrative Parties’s costs and expenditures that are still owed under theFinance Documents in connection with the prosecution and enforcement of their respective claims; |
(ii) | secondly, as apro ratapayment of the accured interest owed under thisAgreement; |
(iii) | thirdly, aspro ratapayment of the accured amortization amounts owed under thisAgreement (prinicpal); and |
(iv) | third, as apro ratapayment of miscellaneous amounts owed under theFinance Documents and, above all, the fees, other costs and expenditures as well as commissions owed and payable under section 11 (Fees) of thisAgreement. |
a) | TheSecurity Agent may resign and, by notice to the otherFinance Parties, name one of itsAffiliatesas its successor. |
b) | Furthermore, theSecurity Agent may resign by notice to theLender and theBorrower without naming a successor. In this case, theMajority Lenders shall appoint a successor to theSecurity Agent. |
c) | If no successor has been appointed by theMajority Lenders within thirty (30) days after notice of resignation, then the resigningSecurity Agent may (after conferring with theFacility Agent) may name a successor. |
d) | The resigningSecurity Agent must provide all documents and records to its successor and provide enough support as can be fairly requested by the successor in order to fulfill its role asSecurity Agent under theFinance Documents. | |
e) | The resignation of theSecurity Agent shall not take effect until: |
(ii) | theTransaction Security provided for the benefit of theSecurity Agent as well as all rights and obligations under thisAgreement and the otherFinance Documents to which theSecurity Agent is party have been effectively transferred to its successor. |
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f) | As soon as its successor has been appointed, the resigningSecurity Agent (subject to the foregoing subsection d)) shall be released from all further obligations under theFinance Documents. However, the provisions of sections 23 (Syndication Agreement) and 24 (Security Pool) shall continue to apply for the benefit of the resigningSecurity Agent. The rights and duties between the successor and each otherParty will then be the same as the rights and duties that would have existed between them had the successor been aParty to thisAgreement at the time it was signed. |
g) | TheSecurity Agent is obligated, pursuant to subsection b) above, to resign if theMajority Lenders (after conferring with theBorrower) requests it to do so. |
h) | After conferring with theBorrower, theMajority Lenders may ask theSecurity Agent to resign pursuant to subsection b). TheSecurity Agent shall comply with this request. |
i) | TheBorrower shall indemnify theFinance Parties for all costs and expenditures incurred by them in connection with this section24.16 (Resignation of the Security Agent). |
a) | In reference to its acts as representative of theFinance Parties, the appropriate department of theSecurity Agent shall be treated as a separate organizational unit from its other units and departments. |
b) | Information received by another department of theSecurity Agent shall be deemed to be confidential information of the respective department and theSecurity Agent must be treated as having no knowledge thereof. |
a) | limit the right of aFinance Partyto arrange its affairs (includingTaxes) in its discretion; |
b) | obligate anyFinance Party to investigate or enforce any claims for refund, abatement, relief or repayment of aTax or the scope, priority or manner of any such claim; or |
c) | obligate anyFinance Party to disclose any information relating to its own affairs (includingTaxes) or any computations with respect ofTaxes. |
a) | The account statements of every account maintained by aFinance Party in connection with thisAgreement shall be deemedprima facieevidence [Anscheinsbeweis] as to the amount of an funds owing. Any certification or determination by aFinance Party of a rate or amount under anyFinance Documentshall be deemedprima facieevidence. |
b) | Any interest or fees accruing under thisAgreement will be calculated on the basis of the actual number of days elapsed and a year of 360 days. |
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a) | Unless otherwise provided hereinafter, any term of aFinance Document may be amended or waived with the consent of theBorrowerand theMajority of Lenders. TheFacility Agentor, with respect to theSecurity Documents, theSecurity Agentare authorized to effect written amendments on behalf of eachFinance Party and to give written waivers permitted under this section 27. |
b) | EachAgent must inform the otherParties without undue delay of any amendment or waiver thatAgenthas effected pursuant to the foregoing paragraph a). Any such amendment or waiver will be binding on allParties. |
a) | An amendment or waiver relating to: |
(i) | the definitions ofMajority Lenders in subsection 1 (Definitions); | ||
(ii) | subsection 2.2 (Finance Party’s rights and obligations); |
(iii) | an extension of the date for a payment to aLenderunder theFinance Documents; |
(iv) | a reduction in theMargin or a reduction in the amount of any payment of principal, interest, fees or other form of payment owed toLender under theFinance Documents; |
(v) | an increase in or expansion of anyCommitment or of theTotal Commitment; | ||
(vi) | an extension to theUtilization Period; |
(vii) | the scope of theSecurity Documentsreferenced in Part II ofSchedule 2 (Conditions Precedent to Disbursement) (but subject to the express exceptions stated in clause (viii)); |
(viii) | release in part or in whole of aTransaction Securityprior to satisfaction of all secured claims (with the exception of a release expressly permitted under clause 24.14 (Release of security)); |
(ix) | any provision of aFinance Documentexpressly requiring the consent of all of theLenders; |
(x) | the right of aLender to assign its rights or delegate its obligations under theFinance Documents; or |
(xi) | this section 27 shall be effective only with the consent of all of theLenders. |
b) | An amendment or waiver relating to the rights or obligations of anyAdministrative Party shall require the consent of theAdministrative Partyin question. |
c) | To the extent that aLenderin Defaulthas an availableCommitmentand thatCommitmentof theLender in Default is required for purposes of calculating theMajority Lendersor of the percentage rate (including unanimity) of theTotal Commitment in order to grant a consent, a waiver or effect an amendment or the like, then theCommitmentof theLender in Defaultwill be reduced by the amount of its availableCommitment; where such a reduction causes theCommitmentof thatLender in Default to be zero, then thatLender in Default shall not be considered aLender for purposes of calculation. |
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(i) | everyLender who has informed the Facility Agent that it is aLender in Default; or |
(ii) | everyLender as to which theFacility Agent is aware that one of the facts listed in paragraphs (a), (b) or (c) of the definition of “Lender in Default” applies to thatLender |
a) | may be exercised as often as necessary; |
b) | are cumulative in nature and do not preclude the rights of theFinance Party in question under general provisions of law; and | |
c) | may be waived only by a written and express declaration of waiver. |
a) | AnyLender (theExisting Lender) may at any time |
(i) | effect a change of itsFacility Officewithout the prior consent of theBorrower or of theFacility Agent by informing theFacility Agent of the newFacility Office (which, in turn, shall inform theBorrower thereof); |
(ii) | may transfer, assign, pledge or otherwise grant a security interest in all or any part of its claims arising out of theFacilitiesto the European Central Bank or another supra-national bank, a central bank, a member of the European Central Bank system, a development bank, the European Investment Bank or any banking institution corresponding thereto informally and without providing notice to, or obtaining the consent of, any party to anyFinance Document.However, this is subject to the condition precedent that |
(A) | theExisting Lenderis not (partially) released from its obligations under thisAgreement as a consequence of the transfer, assignment, pledge or other security interest and the European Central Bank or another supra-national bank, a central bank, a member of the European Central Bank system, a development bank the European Investment Bank or any banking institution corresponding thereto does not accede as a party to thisAgreement or anotherFinance Document; and |
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(B) | on the basis of the transfer, assignment, pledge or other security interest, theLender or theGuarantor is not obliged to make a payment and grant rights to any person exceeding the payments to be made in each case to theExisting Lenderor exceeding the rights to which it is entitled under theFinance Documents; |
(iii) | may not, without the prior consent of theLender, transfer its rights and obligations under theFinance Documents to anAffiliateor to anotherExisting Lenderor to anAffiliateof anotherLender or transfer the same by way of novation [Vertragsübernahme]; and |
(iv) | may assign its rights or obligations under theFinance Documents with the consent of theLender to another bank or financial institution or transfer the same by way of contract novation. If theBorrower fails to respond favorably or unfavorably to an inquiry by theExisting Lenderas to the intendedTransferpursuant to this section a)(iv) within 5Business Days, then consent to the intendedTransfershall be deemed to have been granted. In the context of this inquiry, reference shall be made to the constructive consent after expiration of the 5Business Day deadline without a response. For as long as aDefault is present and continuing, theBorrower’s right of consent under this section a)(iv) shall not apply, and anyLender is entitled to effect aTransferwithout the need for consent to any third party (including, in particular, to a trust, fund and other business enterprise that is not affiliated with theGuarantor). |
b) | To the extent anExisting Lender transfers all or some of its rights and obligations under thisAgreement by way of novation to a new Lender (theNew Lender),aTransferof this kind shall be effective only if it is effected pursuant to subsection 28.5infra(Transfer procedure). As a general principle, aTransfer shall not require any further consent by theBorrower,provided that the provisions of this subsection 28.3 are observed. |
c) | Unless otherwise agreed between theBorrower andFacility Agent, aTransfer is possible only with respect to amounts of EUR [5,000,000] or more or, if a lesser amount, then when the totality of rights and obligations of aFinance Party under thisAgreement are being transferred. |
d) | The aforementioned provisions onTransfer shall applymutatis mutandisto any assignment or transfer of rights and obligations arising out of theFinance Documents to third parties by way of sub-participation and to the off-loading of credit risk through the use of swaps or other derivatives. |
a) | ATransfer is effected when theExisting Lender and theNew Lender submit a duly completed and executedTransfer Certificateto theFacility Agent (where appropriate with amendments which theFacility Agent has approved or fairly requested), which theFacility Agent shall execute. |
b) | Subject to paragraph c), theFacility Agent shall execute without undue delay aTransferCertificateappearing on its face to be proper. |
c) | TheFacility Agent shall be obliged to execute aTransferCertificate only once it is satisfied that it has complied with all necessary “know your customer” checks with respect to theNew Lender. |
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d) | EveryPartyhereby consents now and in advance to allTransfersunder this section section 28 provided that the procedure under subsection 28.3 a) has been observed. | |
e) | On theTransferDate: |
(i) | theNew Lender shall be deemed to assume the rights and obligations of theExisting Lender which are the subject-matter of theTransfer pursuant to theTransferCertificate and shall be deemed to take the place of theExisting Lender; |
(ii) | theExisting Lender shall be released from those rights and obligations and shall lose and forfeit the same; and |
(iii) | theNew Lender shall become a Party to thisAgreement as aLender. |
f) | Notwithstanding paragraph e) above, theParties hereby agree that theTransfer shall not cause any existing right or obligation to be extinguished. |
g) | TheFacility Agent shall inform theBorrower without undue delay about anyTransfer. |
h) | EachNew Lender confirms by its execution of theTransferCertificate that theFacility Agent is authorized to execute amendments or waivers on its behalf to which the required majority ofLenderspursuant to thisAgreement has consented prior to theTransfer Date and that theNew Lender shall by such consent be bound to the same extent as theExisting Lender. |
a) | EveryFinance Party bears an obligation to treat as confidential allConfidential Informationthat it receives from or forGroup Companyin connection with theFinance Documents. |
(a) | receives from theBorrower or anotherGroup Company(or one of its advisors); or |
(b) | receives from anotherFinance Party, provided that thatFinance Party in turn received the information from theBorrower or anotherGroup Company(or from one of its advisors), |
(i) | information which is in the public domain (but not as a result of a breach of this section 29 by theFinance Party); |
(ii) | information theBorrower or the respectiveGroup Company (or one of its advisors) has designated as non-confidential; and |
(iii) | information which was already known to theFinance Party before that Party received the information pursuant to paragraph a) or b) hereof or which, subsequent to its receipt pursuant to paragraph a) or b), lawfully received from another source which is not associated with theGroup, to the extent theFinance Party does not positively know that this information was received as a result of a breach of duties of confidentiality. |
b) | AFinance Party is authorized, however, to disclose information |
(i) | in court or arbitration proceedings in connection with theFinance Documents; |
(ii) | where this is mandated by statute or other legal norms; |
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(iii) | to governmental authorities, bank regulators, tax authorities or other supervisory authorities and rating agencies; |
(iv) | to its advisors (provided that they bear an obligation of confidentiality on the basis of statutory or professional ethics rules/other rules customary in the profession or on the basis of contract); |
(v) | to the otherFinance Parties, theState Guarantor and theMandatary; | ||
(vi) | to the extent permitted pursuant to paragraph c) above; or |
(vii) | to a trustee [Treuhänder] of aFinance Party(provided that they bear an obligation of confidentiality on the basis of statutory or professional ethics rules/other rules customary in the profession or on the basis of contract). |
c) | AnyFinance Party is authorized to provide a copy of theFinance Documents and any other information, which it has received in connection with theFinance Documents, to any of itsAffiliatesor to any person with which it intends to carry out or has carried out aTransfer, participation (including sub-participation), hedging transaction, securitization (including synthetic securitization), any measure within the meaning of paragraph a) of subsection 28.2 (Transfers by the Lenders)or any other agreement referring to thisAgreement, as well as to persons who, for technical, organizational or legal reasons, must be involved in assessments of value or in completing a measure of this kind (e.g., rating agencies, accountants, tax advisors, lawyers or notaries) (each of which referred to as aParticipant). Before anyParticipantmay be given any confidential information, it must agree with theFinance Party in question that it shall treat this information as confidential pursuant to the terms of paragraph a) above, unless an obligation of this kind already exists on the basis of statutory or professional ethics/professional rules. Information may be provided both in hard-copy form and by electronic means and by placing the information in a password-protected area of the Internet. To such extent, theBorrower hereby releases theFinance Partiesfrom their obligations of banking secrecy. |
d) | This section 29 is deemed to replace and supersede all previous confidentiality obligations of anyFinance Party, which it entered into in connection with thisAgreement prior to becoming aParty to thisAgreement. |
a) | theBorrower shall, at any time, permit theState Guarantor or itsMandatary(either in person or by agents appointed by the foregoing) to conduct an audit in order to examine the likelihood or the conditions precedent to any utilization of theDeficiency Guaranty; |
b) | theBorrower hereby authorizes theFacility Agent,theSecurity Agentand theLenders to submit allFinance Documents and other documents pertaining to theFacilities theSecurity Documentsand the otherFinance Documents to theState Guarantor and theMandatary, and hereby undertakes to provide and make available to theState Guarantorand theMandatary any and all such documents as the latter may request in respect of theFacilities, theSecurity Documents, the otherFinance Documents and theFederal/State Guarantor Decision; |
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c) | theBorrower shall pay to theState Guarantor, in a timely fashion, all such fees and in such amounts and at such times as are provided by theFederal/State Guarantor Decision and theDeficiency Guaranty, including, above all, the application fee described in Item B. I., the issuance fee described in Item B. II and the guaranty fee described in Item B. III of the “Instructions for Applying for Federal Loan Guarantees in Connection with Parallel State Guarantees” in the version of 10 May 2010 as appended in Schedule 7; |
d) | theBorrower hereby expressly confirms that it has taken notice of the legal significance of the subsidies arising out of theFederal/State Guarantor Decision; |
e) | theBorrower hereby releases theFinance Parties from their duties of confidentialityvis-à-vistheState Guarantor and theMandatary; and |
f) | theBorrower shall consent to disclosure of the grant decision, including the material grounds of such decision, to the extent that disclosure is necessary in the discretion of the Federal Ministry of Economic and Technology or of the Federal State of Brandenburg Ministry of Commerce and Finance in order to keep the public informed. Furthermore, the Federal Ministry of Economics and Technology and the Federal State of Brandenburg Ministry of Commerce and Finance are authorized to provide information to the competent committees of the GermanBundestagand the respectiveLandtagebodies in a confidential fashion. |
a) | in the event the security deteriorates (above all through an impairment of value and/all losses), provide additional security upon request; and |
b) | grant security interests in the real property, which is or should be at any one time used for the operational purposes of the Production Facility FF02 and, in each case with the exception of the land which is currently used for the production facility and which is located along the street “Marie Curie Strasse” in Frankfurt/Oder (land register of the City of Frankfurt/Order, plat 133, lot 1569). |
a) | TheBorrowershall maintain the current reclamation and recycling system at all times and shall ensure, in this respect, that the solar modules introduced into the market byAffiliatesof theGuarantorare capable of being returned, reclaimed and recycled unconditionally, free of charge and even in the event of theBorrower’s insolvency. |
b) | No later than 120 days after the end of every fiscal year, theBorrower shall deliver to theFacility Agent a confirmation of its auditor that substantiates that a reclamation and recycling system is being maintained in accordance with Decision BB 393 (B) of 30 June/4 July 2006 as well as the reasonableness of the invested amounts that will not become part of the insolvency estate (insolvenzreif). An auditor may submit a confirmation containing such content in connection with the annual financial statements. |
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a) | The Facility Agent shall provide, in electronic form pursuant to subsection 33.2 (Electronic communication), the documents submitted by theBorrower pursuant to subsection 19.1(Financial statements and reports), subsection 19.4 (Business Plan), subsection 19.5 (Compliance Certificate) and subsection 19.6 (Miscellaneous information) to theState Guarantor. |
b) | TheFacility Agent shall notify theState Guarantor without undue delay if |
(i) | it determines that theBorrower is in arrears in making its agreed interest or principal payments on theLoanfor a period in excess of three months; |
(ii) | it determines that other material contractual credit obligations have been breached; |
(iii) | it determines that material details of statements with respect to the assets and income of theBorrower have been subsequently revealed to be incorrect or incomplete; |
(iv) | it learns that theBorrower will cease to make payments or that an petition is being made to commence insolvency proceedings over the assets of theBorrower or that compulsory judicial enforcement is being levied on significant portions of its assets; |
(v) | it gains knowledge of other circumstances that, in its opinion, would place repayment of the guaranteed credit at risk. |
a) | creation or preservation of securityin rempursuant to paragraph c)(xi) of subsection 21.4 (No encumbrances or security) |
b) | any alienation and/or disposition under paragraph b) (viii) of subsection 21.5 (Sales/Disposals); | |
c) | taking any measures falling under subsection 21.6 (Reorganisations); |
d) | incurringFinancial Indebtedness pursuant to paragraph b) (iv) of subsection 21.13 (Financial Indebtedness) which would be owed toAffiliates (with the exception of theGuarantor, First Solar GmbH and First Solar Holdings GmbH), to the extent that such new financial indebtedness is not incurred in the ordinary course of business (provided that transactions with companies other than those mentioned above, under whichFinancial Indebtedness is incurred, shall up to an aggregate amount of EUR 50,000,000 in the relevant fiscal year always in any event be deemed actions taken in the ordinary course of business) and paragraph b) (vii) of subsection 21.13 (Financial Indebtedness); |
e) | granting or extendingloans and credits pursuant to paragraph b) (v) of subsection 21.14 (Grant of loans); |
f) | the provision of guarantees or indemnities under paragraph b)(vi) of subsection 21.15 (No guarantees or indemnities); |
g) | any action falling within paragraph a) of subsection 21.16 (Acquisitions and joint ventures), and |
h) | material new real investments for the FFO II Production Facility, subject to the following agreed exceptions: (i) servicing, maintenance, repair and modernization measures; (ii) actions or measures, which are included in the Business Plan that forms the basis of theFederal/State Guarantor Decision; and /or (iii) real investments of less than EUR 10,000,000 in the relevant single case. |
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a) | theLenders hereby instruct theFacility Agent to take the actions referenced in subsection 22.20 (Acceleration) where theState Guarantor asks it to do so upon the occurrence of aDefault,which is listed in Annex II (Model Loan Agreement) of theState/GuarantorGuarantor Decision (taking account of the justified concerns of theLenders); and |
b) | any waiver of rights with respect to one of theDefaults referenced in paragraph a) may be given only with the prior consent of theState Guarantor, except where the waiver of rights pertains to deferrals of interest and principal payments which are appropriate in the circumstances, up to a maximum deferral of six months and a maximum amount of one due and payable installment of interest and principal. |
a) | TheFacility Agent shall additionally notify theState Guarantor where it bears a duty of information pursuant to subsection 23.2 (Duties of Facility Agent) paragraph d). |
b) | TheSecurity Agent shall forward electronic copies of theSecurity Documentsto theState Guarantor upon request for its independent review. |
a) | Prior to complete satisfaction of the secured claims, any release ofTransaction Security shall (subject to the further provisions of subsection 24.14 (Release of security)) also requires the consent of theState Guarantors. |
b) | No consent of theState Guarantors is required in order to realize on security pursuant to subsection 24.15 (Realization or sale of Security). |
c) | TheParties hereby recognize and acknowledge that theState Guarantors have the right to engage authorized agents in the administration of theDeficiency Guarantee. |
a) | A term of anyFinance Documentmay be amended only with the consent of theState Guarantors. The foregoing shall not apply to terms relating merely to the relations of theFinance Partiesinter se, as well as relating to deferrals appropriate under the circumstances of interest and principal payments up to a maximum deferral of six months and a maximum amount of one due and payable installment of interest and principal. |
b) | Prior to complete satisfaction of the secured claims, any amendments to theSecurity Documentsshall also require the consent of theState Guarantors. |
Mandatary | PricewaterhouseCoopers AG Wirtschaftsprüfungsgesellschaft | |
` | Attention: Ms Solveig Gute | |
Lise-Meinter-Str 1 | ||
10598 Berlin | ||
Fax: + 49 30 2636-1221 |
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a) | Subject to the provisions set forth below, the provisions of theFederal/State Guarantor Decision (Bürgschaftsentscheidung) set out inSchedule 8 (Federal/State Guarantor Decision) shall constitute an integral part of, and be incorporated by reference into, thisAgreement, even if they are not expressly covered by the presentAgreement. In the event of contradictions between the provisions of theFederal/State Guarantor Decision and the terms of thisAgreement, the provisions of theFederal/State Guarantor Decision shall prevail. | |
b) | The following provision shall be construed as follows: |
a) | Where any term of aFinance Documentis deemed to be or become illegal, ineffective or unenforceable under any legal system, this shall have no effect on the legality, effectiveness or enforceability (i) of all of the other terms of theFinance Documents in such legal system or (ii) of this or any other term of theFinance Documents in other legal systems. |
b) | The illegal, ineffective or unenforceable term shall be deemed replaced by such lawful, effective and enforceable term that most closely reflects, in commercial respects, the purpose of the replaced term. The same shall apply where, in the course of performing aFinance Document, a contractual gap requiring supplementation is identified. |
a) | Each communication in connection with aFinance Documentshall be made in writing and may, unless otherwise provided: |
(i) | be made by personal delivery and by mail; or |
(ii) | unless aParty expressly objects thereto, also by e-mail (to at least two addressees), fax or by means of other types of electronic communications. |
b) | Unless otherwise provided, every consent or agreement in connection with aFinance Documentmust be in written form. For purposes of theFinance Documents, electronic communications are deemed to be written communications. |
c) | Any communication to or from theBorrower relating to aFinance Document(with the exception of theTransaction Securities) must be dispatchedviatheFacility Agent. |
d) | All notices to or from theBorrower relating to theTransaction Securities, must be dispatchedviatheSecurity Agent. |
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a) | Unless otherwise provided below, all communications in connection with theFinance Documents must be made to the address communicated by thePartyin question for this purpose to theFacility Agent by a date no later than the date on which that party became aParty to aFinance Document. |
c) | AnyParty may change its address by notifying theFacility Agent (in the case of theFacility Agent: the otherParties) five (5)Working Days in advance. Where aFinance Party designates a particular department or a particular correspondent as the recipient for a communication, then a communication will not be effective unless it is made to that department or that correspondent. |
a) | Unless otherwise provided below, any communication in connection with aFinance Documentshall be deemed to have been received: |
(i) | if by delivery in person — on the date of personal delivery; |
(ii) | if by way of letter — when it has been deposited at the post office in a correctly addressed envelope, postage prepaid; and |
(iii) | if by way of fax, e-mail or by other means of electronic communication — when received in legible form. |
b) | Any communication under the foregoing paragraph a) which arrives at its destination on a non-working day or outside of business hours shall be deemed delivered on the next working day at that destination. |
c) | Any communication to theFacility Agent shall be effective only when actually received. |
a) | ThisAgreement (and all extra-contractual rights and obligations in connection with thisAgreement) shall be governed by German law. |
b) | Jurisdiction and venue for all disputes in connection with thisAgreement (including all disputes in respect of extra-contractual rights and obligations in connection with thisAgreement) shall lie with the courts of Frankfurt am Main, Germany. However, theFinance Partiesare entitled to bring an action in any other court with jurisdiction. |
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a) | TheParties may choose to conclude this Agreement by an exchange of signed signature pages, transmitted by means of telecommunication (telekommunikativer Übermittlung) by way of fax or attached as an electronic photocopy (pdf., tif., etc.) to electronic mail. |
b) | If theParties choose to conclude thisAgreement in accordance with paragraph (a) above, they will transmit the signed signature pages to White & Case LLP, c/o Ms Sabine Schomaker/Mr Clemens Niedner, fax: +49 69 299 94 1444, E-mail: sschomaker@whitecase.com/cniedner@whitecase.com (theRecipient). This agreement shall be deemed concluded once theRecipient has actually received the executed signature pages of allParties to this Agreement and at the time of receipt of the last outstanding signature page. TheParties agree to send six originals of the signature pages to theRecipient. |
c) | For the purposes of this section 35 only, theParties to this Agreement designate theRecipient as the agent of receipt (Empfangsvertreter) and expressly permit theRecipient to collect the executed signature pages from all and for all of theParties to this agreement. TheRecipient shall have no further obligations in its capacity asRecipient. TheRecipient may assume that the signature pages received by means of telecommunication comport with the originals, that the signatures on the signature pages are genuine and that the signatories have signature authority. |
d) | ThisAgreement has been entered into on the date stated at the beginning of thisAgreement. |
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THE ORIGINAL PARTIES
THE BORROWER
Commercial registration number | ||||
Borrower | Jurisdiction | (or equivalent, if any) | ||
First Solar Manufacturing GmbH | Germany | HRB 11116, Frankfurt/Oder Municipal Court |
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THE ORIGINAL LENDERS
Commitments | ||||
Original Lender | (EUR) | |||
Commerzbank Aktiengesellschaft | 48,500,000 | |||
Sachsen Bank | 38,000,000 | |||
Norddeutsche Landesbank — Girozentrale | 38,000,000 | |||
Total Commitment | 124,500,000 | |||
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ORIGINAL CONDITIONS PRECEDENT TO DISBURSEMENT
A. | Corporate documents | |
1. | With respect toBorrower |
a) | Current copies ofBorrower’s corporate documents (certified articles of association/incorporation [beglaubigter Gesellschaftsvertrag] / certified bylaws [beglaubigte Satzung], certified extract from the Commercial Register and the internal rules of procedure of the executive board and supervisory board, if any). | ||
b) | A copy of the shareholder resolution of theBorrower |
(i) | consenting to conclusion of theFinance Documents, the obligations and transactions contemplated therein and the terms thereof and resolving to execute, deliver and perform theFinance Documents; |
(ii) | authorizing a particular person/particular persons to execute theFinance Documents, to which theBorrower is a party, on its behalf; and |
(iii) | authorizing a particular person/particular persons on behalf of theBorrower to execute and deliver all documents and communications (including anyNotices of Utilization) that theBorrower must execute/deliver in connection with theFinance Documents to which theBorrower is a party. |
c) | Written confirmation (Formalities Certificate) of an authorized signatory of theBorrower |
(i) | containing the name and specimen signature of the individuals with authorization to execute theFinance Documents on behalf of theBorrower; and |
(ii) | that the documents referenced in the foregoing paragraphs a) and b) and attached to the certificate are correct, complete and fully in force as of theFirst Utilization Date. |
2. | With respect to First Solar Inc.: |
a) | Current copies of the corporate constitutive documents (certificate or articles of incorporation or organization or formation)and of its by-laws as well as all agreements, official documents, applications and notices relating thereto, submitted to the competent authorities of the country of formation in connection with the formation or organization of First Solar Inc., and, where applicable, all constitutive documents and/or constitutive agreements for the relevant legal entity. | ||
b) | A copy of the resolution of First Solar Inc.’s board of directors |
(i) | consenting to entering into theGuaranty, consenting to the obligations and transactions and the terms thereof contemplated therein, and resolving to execute, deliver and perform the same, and |
(ii) | authorizing a particular individual and/or particular individuals to execute and deliver theGuarantyon its behalf. |
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c) | A current certificate of good standing for First Solar Inc. recently issued by the competent office (Secretary of State or another competent official of a government agency) in the legal system of formation of First Solar Inc. | ||
d) | Formalities Certificate of an authorized signatory of First Solar Inc. |
(i) | containing the names and specimen signatures of those individuals who are authorized to execute theFinance Documents on behalf of First Solar Inc.; and |
(ii) | indicating that the documents listed in paragraphs a) through c) and the documents attached to the certificate are correct, complete and fully in force on theFirst Utilization Date. |
B. | Financial statements and business plan |
1. | TheOriginal Financial Statements. |
2. | Business Plan for fiscal 2011. |
C. | Financing documents |
1. | ThisAgreement. |
2. | TheSecurity Documentsin executed form as listed in Schedule 2, Part II (Security Agreements prior to Initial Utilization). |
3. | ExecutedFee Agreements. |
4. | The executed deed with respect to the validDeficiency Guarantytogether withFederal/State Guarantor Decision. |
D. | Legal opinions |
1. | A legal opinion of White & Case LLP as German legal advisors to theFacility Agent with respect to thisAgreement and theSecurity Documentsunder German law. |
2. | A legal opinion of White & Case LLP as German legal advisors to theFacility Agent with respect to the notification obligation for theDeficiency Guaranty. |
3. | Legal opinion of White & Case LLP, as the German legal advisor of theFacility Agent with respect to theBorrower’s execution of theFinance Documents. |
4. | Legal opinion of Cravath, Swaine & Moore LLP, as US legal advisor of theGuarantorwith respect to theGuarantor’s execution of theGuaranty. |
E. | Miscellaneous |
1. | TheGroup Organizational Chart. |
2. | Copy of theUS Credit agreement; |
3. | Copies of the correspondence with theMandataryin its capacity as the mandatary of the Federal Government and of the German Federal State of Brandenburg, amending, specifying or commenting on theFederal/State Guarantor Decision,theDeficiency Guarantee or the terms of thisAgreement, arising on or before the date of closing of thisAgreement; |
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4. | Confirmation of theBorrower’s insurance broker with respect to the reasonableness and completeness of the existing insurance package; |
5. | Evidence that all commissions, fees and costs which are due and payable by theBorrower pursuant to theFinance Documents at this point in time have been paid or shall be paid on the firstUtilization Date. |
6. | Submission of thePreservation of Capital Statement. |
7. | Evidence thatBorrower has equity capital available to it of at least EUR 27,189,000 at execution of thisAgreementand was applied to the construction ofProduction Facility FFO2. |
8. | Confirmation of M + W Germany GmbH, as theBorrower’s general contractor for the construction of theProduction Facility FFO2, particularly with respect to the existence of all of the regulatoryAuthorizations and Permits required for the construction ofProduction Facility FFO2. |
9. | Evidence that the investment subsidies and grants budgeted in connection with construction of the FFO2Production Facility and equaling EUR 22,500,000 (minus the value of the State aid of theDeficiency Guaranty) have been accepted or can be claimed by the Borrower in the case of a grant. Insofar as the investment subsidies have not yet been disbursed in full, evidence shall be furnished that the differential is available to the Borrower in the form of its own capital resources. |
10. | Evidence that the Debt Service Reserve Account has been opened and credited with an amount of EUR 16,600,000 or is credited on the initial Utilization Date. |
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SECURITY AGREEMENTS PRIOR TO INITIAL UTILISATION
1. | GERMANY |
a) | First-ranking registered land charges [Buchgrundschulden] immediately enforceablein remandin personam(including the related declaration of the purpose for creating the security interest) in the full amount of the loan with respect to theBorrower’s real property located in the city of Frankfurt/Oder, along the street “Marie Curie Strasse”, folio no. 17248, plat 133, lot 1682, and registered on the Land Register of Frankfurt/Oder Municipal Court; |
b) | Creation of security interests [Sicherungsübereignung] in all movable goods belonging to the FFO2Production Facility. |
c) | Account pledge agreement relating to theDebt Service Reserve Account |
2. | USA |
a) | Unconditional and irrevocable Guaranty (guaranty agreement) of First Solar Inc. in favor of theSecurity Agentpursuant to German law, in the amount of all sums owed under theFinance Documents. |
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To: | [ ]Facility Agent | |
From: | First Solar Manufacturing GmbH | |
Date: | [Date] |
1. | We refer to theCredit Agreement.This is a Utilization Request. All terms used in this Utilization Request have the same meaning as in theCredit Agreement unless given a different meaning herein. |
2. | We wish to utilize a cashLoan on the following terms: |
(i) | Utilization date: [ ] | ||
(ii) | Amount: EUR [ ] | ||
(iii) | Interest period: [ ] | ||
(iv) | Purpose: [ ] |
3. | Our payment instructions are: [ ]. |
4. | We hereby confirm that all conditions precedent to disbursement pursuant to subsection 4.1 (Required documents) of theCredit Agreement are met this day and, to our current knowledge, will be met on the date ofUtilization. |
5. | We hereby confirm that both today and on the date ofUtilization there is noElement of Default nor will any Default arise due to theUtilization. |
6. | We hereby confirm that [[Representations pursuant to section 18 (Representations)]/ [Repeating Representations1]] are correct on today’s date and, to our present knowledge, will be correct on the date ofUtilization, with respect to such circumstances that exist on each such date. |
7. | This Utilization Request is irrevocable. |
Executed by: | ||||||||
Name of signatories: | ||||||||
1 | Limitation on repeating representations does not apply to utilizations on the First Utilization Date. |
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To: | [ ] asFacility Agent | |
From: | First Solar Manufacturing GmbH | |
Date: | [Date] |
1. | We refer to theCredit Agreement. This is anSelection Notice. All terms used in thisSelection Noticehave the same meaning as in theCredit Agreement, unless a different meaning is given to them herein. | |
2. | We refer to theLoan [ ], theInterest Periodof which ends on [ ]. |
3. | The nextInterest Periodfor the above-referencedLoanis intended to run for [Duration of interest period]. |
4. | We confirm that all of theRepeating Representationsare correct as of the date of thisSelection Notice. | |
5. | ThisInterest Period Noticeis irrevocable. |
Executed by: | ||||||||
Name of signatories: | ||||||||
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To: | [ ] asFacility Agent | |
From: | [TheExisting Lender] (theExisting Lender and | |
[TheNew Lender] (theNew Lender) | ||
Date: | [ ] |
1. | TheExisting Lender hereby transfers to theNew Lender, who accepts the transfer, its rights and obligations under theCredit Agreement by way of novation [Vertragsübernahme], to the scope and extent shown in the Schedule. |
2. | The proposed Transfer Date is [ ]. |
3. | The administrative information of theNew Lender needed for purposes of theCredit Agreement are shown in the Schedule. |
4. | TheNew Lender hereby ratifies all legal acts undertaken by theSecurity Agent under theFinance Documents for theNew Lender prior to the date of this Transfer Certificate. |
5. | TheExisting Lender and theNew Lender hereby agree that theExisting Lender shall bear no liability to theNew Lenderwith respect to the legality, validity, reasonableness, correctness, completeness or performance: |
(i) | of aFinance Documentor any other document related thereto; or |
(ii) | of written or oral details or information made or submitted in connection with anyFinance Document, |
6. | TheNew Lender hereby confirms to theExisting Lender and the otherFinance Parties that it: |
(i) | has conducted its own independent review of all of the risks in connection with theFinance Documents (including the financial situation and affairs of theBorrower, of theGuarantor and itsAffiliatesas well as the type and scope of any claim for recourse against aParty to thisCredit Agreement) and in connection with its participation therein and shall continue to do so: and |
(ii) | has not relied on information provided to it by theExisting Lender in connection with anyFinance Documents. |
7. | TheExisting Lender and theNew Lender hereby agree that theExisting Lender shall not be obliged under anyFinance Document: |
(i) | to accept any re-assignment to it of the rights or obligations transferred by this Transfer Certificate; or |
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(ii) | to accept any share of losses theNew Lender incurs on the basis of non-performance of theBorrower’s obligations/of theGuarantor’s obligations under theFinance Documents or otherwise. |
8. | TheNew Lender confirms that it is able to release theAgents2 from the limitations of § 181 of the German Civil Code. |
9. | TheNew Lender shall give all required notices in connection with the transfer of the rights and obligations,Loansand/orCommitments listed in the Schedule. |
10. | This Transfer Certificate is governed by German law. |
11. | TheNew Lender’s VAT identification number is [•]3. |
2 | Where applicable, the word “not” should be added here. | |
3 | This transfer certificate must be prepared taking into account the consent requirements and constructive consent time periods of subsections 28.3 and 30.10 of the Credit Facility Agreement. |
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[Existing Lender] | [New Lender] | |
Executed by: | Executed by: |
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FORM OF COMPLIANCE CERTIFICATE
To: | Commerzbank Aktiengesellschaft, Luxembourg branch asFacility Agent | |
25, Rue Edward Steichen | ||
L-2040 Luxembourg | ||
Attn: [ ] | ||
Fax: +352 346868 3222 | ||
From: | First Solar Manufacturing GmbH | |
Date: | [Date] |
1. | We refer to theCredit Agreement. This is aCompliance Certificate. | |
2. | We confirm that on the [Reference Date] the figures and ratios were as follows: |
a) | Minimum Liquidity: USD [ ] | ||
b) | EBITDA: USD [ ] | ||
c) | Gearing Ratio |
3. | We attach the detailed calculations set forth below and a confirmation of First Solar Inc. reflecting the foregoing financials. |
4. | We confirm that as of [Reference Date] noDefault had occurred. |
Executed by: | ||||||||
Name of signatories: | ||||||||
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FINANCIAL RATIOS
Period | ||||
following the Closing Date (as defined in the | ||||
US Credit Agreement) | EBITDAinUSD | |||
in years 1 through 3 | 400,000,000 | |||
in year 4 | 500,000,000 | |||
beginning year 5 | 600,000,000 |
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FEDERAL/STATE GUARANTOR DECISION
Disbursement: | 100 % | |
Interest rate: | EURIBOR plus margin equal to 135 basis pointsper annum | |
Interest period: | selectable, three or six months |
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Term: | 8.5 years from the signing of the credit agreement (term expected to run through 31 August 2019) | |
Commitment period: | 17 months from the signing of the credit agreement (utilization periods) | |
Commitment fee: | 35% of the marginper annumon the amount, which is not utilised during the utilization periods and is not terminated | |
Repayment: | 15 semi-annual instalments of EUR 8,300,000; beginning 18 months after the signing of the credit agreement (repayment period expected to commence on 31 August 2012) | |
Structuring fee: | EUR 311,250 (0.25% of the loan amount) | |
Arrangement fee: | EUR 124,500 (0.10% of the loan amount) | |
Participation fee: | EUR 809,250 (0.65% of the loan amount) | |
Agency/Security Fee: | EUR 30,000 per annum | |
Planned securitisation period: | no later than 6 months after the guarantor decision is issued. |
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1. | A first-ranking abstract land charge [Grundschuld] on the still un-surveyed tract of land at the grounds of Plant II, covering the full amount of the credit; |
2. | Grant of a security interest [Raumsicherungsübereignung] in the FSM assets that were acquired in connection with the project, specifically the machinery/equipment/installations financed with this credit; |
3. | Guaranty from the American holding company, First Solar Holdings Inc. (FSH Inc.). This guaranty shall be enforced before the guaranty of the German Federal Government and the Federal State of Brandenburg can be enforced, and it will not give rise to any recourse or indemnity claims against the German Federal Government and the Federal State of Brandenburg. In terms of priority, any such claims may be enforced only after the claims based on the Federal and Federal State’s guarantees; | ||
4. | Pledge of the debt service reserve account (see point H.II c of this decision). |
a) | equity capital of at least EUR 27.189 million has been fully paid in and has been deployed in connection with the project, |
b) | the investment subsidies, which amount to EUR 22.5 million and were planned in connection with this project, less the state-aid value of the guarantee, have been approved. |
a) | The Company’s equity capital must be preserved in the Company over the term of the guarantee-backed loans (Capital Preservation Covenant). |
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b) | FSM’s managing directors must ensure that no dividends are paid out if the annual debt service for the guarantee-backed loans cannot be paid out of FSM’s available cash flow and, on the basis of the Company’s planning (as updated from time to time), it likewise does not appear that proper servicing of the guarantee-backed loans for the subsequent year is assured. |
c) | From the outset and at any time during the term of the guarantee-backed loans, FSM shall maintain minimum liquidity (in the form of a debt service reserve account which shall be pledged) in an amount equal to one annual repayment instalment, not exceeding, however, the outstanding loan amount. |
d) | Prior to disbursement of the guarantee-backed loans, the Lender shall verify, or require evidence to be submitted to it showing, that the material permits required to implement the subject project are in place. (To the extent it is not yet possible to submit approvals, licenses and/or permits in this respect, the Company shall at least submit confirmation of the relevant competent authority showing that, based on the documents submitted to it and as of the current stage of processing, the authority has not made any findings that would prevent the approval/permit/license from being granted). |
e) | The Lender shall verify that, over the term of the guarantee-backed loans, the existing recovery and recycling system shall remain in place in compliance with the directives set forth in the decision on BB 393 (B). In particular, the Company shall ensure that products placed on the market for or on behalf of First Solar Group will be assured of a return option and proper recycling or disposal option which is unconditional, free-of-charge and insolvency-proof. Annual confirmation from an independent auditor must be provided that the recycling system is being maintained in accordance with those requirements and that the amounts placed in insolvency-proof investments are appropriate. |
f) | Goods and services transactions as between the Borrower and the other First Solar Group companies and as between the Borrower and companies lying within First Solar Inc.’s sphere of influence shall be on market terms; in connection with First Solar Manufacturing GmbH’s annual financial statements, its financial auditors shall comment thereon. |
g) | In the event that the investment subsidies should not be available in a timely fashion, First Solar Manufacturing GmbH shall pre-finance the amount of any shortfalls by providing additional equity. |
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h) | Acceptance of this guarantee decision is deemed a repeat confirmation of the Borrowers’ previous written confirmation that they have taken note of the advice on facts relevant under state-aid law. |
Berlin, 9 December 2010 | For the Federal Ministry of Commerce and Technology | For the Federal Ministry of Finance | ||
/signed/ Dr. Armgard Wippler | /signed/ as agent Wellmann | |||
Potsdam, 9/13 December 2010 | For the Ministry of Finance and European Affairs of the German Federal State of Brandenburg | For the Ministry of Finance of the Federal State of Brandenburg | ||
/signed/ Steffen | /signed/ Dr. Menzel | |||
Berlin, 9 December 2010 | For PricewaterhouseCoopers AG | For PricewaterhouseCoopers AG | ||
/signed/ Koch | /signed/ Prokura Solveig Gute |
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Use of funds | TEUR | in % | Source of funds | TEUR | in % | |||||||||||||
Land parcel | 850 | 0.5 | % | Equity capital | 27,189 | 15.7 | % | |||||||||||
Buildings and infrastructure | 60,650 | 35.1 | % | Subsidies | 21,311 | 12.3 | % | |||||||||||
Technical equipment/machinery | 111,500 | 64.5 | % | Debt capital (“Term Loan“) | 124,500 | 72.0 | % | |||||||||||
Total | 173,000 | 100.0 | % | Total | 173,000 | 100.0 | % |
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THE GERMANBUND
1. | Conditions and requirements, which the federal and state governments (Bund/Land) have prescribed in writing, shall be deemed to constitute material parts of the Guaranty; to the extent they relate to the credit relationship, they must be incorporated within the credit agreement. |
2. | Amendments to the credit agreement approved by theBund/Landon the basis of the model credit agreement in effect from time to time and on which the guaranty is based shall require the prior consent ofBund/Land. |
3. | The Lender is authorized to grant deferrals of interest and principal payments appropriate in the circumstances, up to a maximum deferral of six months and the maximum interest and principal payment which is due and payable. |
4. | No change of creditor shall be effective without the prior consent of the guarantor, irrespective of the manner in which such change is brought about; in the event consent is granted, the creditor must continue to act as a fiduciary or trustee to administer the rights and obligations arising out of the credit/guarantee. |
5. | The grant of an equitable sub-participation [wirtschaftliche Unterbeteiligung] shall be deemed the equivalent of an assignment. |
6. | When granting credit and executing credit transactions, the Lender shall exercise the degree of care of a reasonable merchant [die Sorgfalt eines ordentlichen Kaufmanns]. The fact that there is a guaranty from theBund/Landmay not give rise to a reduction in the level of care. |
7. | Upon the occurrence of a deficiency, theBund/Landshall be deemed released from the guarantyvis-à-visthe Lender if the Lender breaches any obligation incumbent on it under this guaranty. The foregoing shall not apply in the event of negligent breach [fahrlässige Verletzung], to the extent the deficiency was not caused by the breach. |
8. | The Lender shall notify theBund/Landwithout undue delay if |
a) | the Borrower is in default for longer than three months in respect of a payment of agreed interest or principal of the guaranteed credit; |
b) | the Lender ascertains that the Borrower has breached other material contractual credit obligations; |
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c) | the Lender ascertains that the Borrower’s statements with respect to its assets and income have subsequently been revealed to be incorrect or incomplete in material respects; |
d) | the Lender learns that the Borrower is ceasing to make payments or that a petition has been filed for the commencement of insolvency proceedings on the Borrower’s assets or compulsory judicial enforcement [Zwangsvollstreckung] is being levied over significant portions of the Borrower’s assets; |
e) | other circumstances come to the Lender’s knowledge that, in the Lender’s view, place repayment of the guaranteed credit at risk. |
9. | The Lender shall exercise its contractual right of termination upon request of theBund/Land. In this context, the Lender’s justified concerns shall be taken into account. |
10. | The credit must be secured pursuant to the terms of the credit agreement. The security to be provided is intended to secure the total credit; it is not permitted to create separate security covering the Lender’s share of the risk. The Lender shall reserve the right to demand the provision of additional security by the Borrower in the event of deterioration of the security, in particular in the event of collateral depreciation and/or losses. |
11. | As soon as and to the extent that the security created with respect to the credit and/or available further security comports with the investment guidelines generally followed by the Lender, the Lender shall inform theBund/Landthereof; in that case, the Lender and theBund/Landshall coordinate with respect to the extent to which theBund/Landmay be released from its guarantees based on the intrinsic value of such security. |
12. | To the extent that, following payment by theBund/Landunder their guarantees, the rights, which arise under the security provided in exchange for the credit, fail to pass toBund/Land by operation of law (subrogation), the Lender shall transfer those rights (pro rata) to theBund/Land. |
13. | In the event of a delay of the Borrower with respect to payments which are due, from the date of the delay, interest at such rate as may be asserted as a claim for compensatory damages against the Borrower shall be deemed included within and covered by the guaranty. The amount of the claim for compensatory damages shall be limited to the base interest rate from time to time in effect pursuant to § 1 German Discount Rate Transitional Act [Diskontsatz-Überleitungsgesetz], plus 3 percentper annum, except where a greater claim for compensation is proven in the event of loss. Nevertheless, in no event may the agreed standard interest rate approved by theBund/Landbe exceeded. |
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14. | A deficiency will be deemed to have arisen on the guaranty-backed credit, if and to the extent the inability of the Borrower to make payments is proven by its cessation of payments, the commencement of insolvency proceedings, the provision of an affirmation in lieu of an oath [eidesstattliche Versicherung] pursuant to § 807 German Code of Civil Procedure [Zivilprozessordnung] or in some other manner, and significant proceeds from the realization of the loan collateral or realization of other assets of the Borrower are not anticipated or no longer anticipated. In addition, on the side of the German Federal Government, the deficiency must be the subject of a determination by the inter-ministerial guarantee committee [interministerieller Bürgschaftsausschuss] and on the side of theLänderby the relevant guarantee committees of theLand[Landesbürgschaftsausschüsse] or the respective inter-ministerial guarantee committee [interministerieller Bürgschaftsausschuss]. |
15. | Even if the conditions precedent of para. 14 have not been met, a deficiency in the amount of the entire, still outstanding or still uncollected loan receivable (inclusive of interest and other costs) shall be deemed to have arisen where, within twelve months following written demand for payment (made after such payment has fallen due), an amount of principal or interest which has fallen due has not been paid. However, the residual receivable under the credit must be due and payable for at least six months. The Lender shall continue to undertake efforts to collect the receivable or to collect on it by forced execution, exercising the care of a reasonable merchant, and shall, where appropriate, realize on the collateral and report to theBund/Landwith respect thereto. This obligation shall be deemed suspended for as long as theBund/Landfails to issue reasonable instructions under the circumstances, which the Lender has requested for this purpose. In addition, the pursuit of compulsory measures of execution against the Borrower shall require theBund/Land’s prior consent. |
16. | The Lender shall prepare a preliminary accounting statement of the deficiency upon request of theBund/Land. |
17. | TheBund/Landshall be entitled |
a) | to make partial payments against its tentatively payable guaranty obligation, and if, following the making of partial payments, the receipt of collateral proceeds results in an over-payment against the guarantor’s liability, then the amounts in question shall be refunded to theBund/Land. Such amounts shall bear interest at a rate of 3% over the respective base interest rate under the German Civil Code from the date of the over-payment; |
b) | to perform its guarantee obligations by making interest and principal payments on the due dates provided under the credit agreement for proper loan repayment instead of doing so in a single amount, subject to the proviso, however, that theBund/Land’s first payment must be made upon determination of the deficiency pursuant to paras. 14 and 15 hereof. |
18. | The Lender shall impose an obligation on the Borrower to submit at any time to an audit by theBund/Landor its agent to investigate whether utilization of the guaranty may be required or the conditions precedent to such utilization are met or have been met. The Lender shall furthermore impose an obligation on the Borrower to provide such information to theBund/Land as they shall request in connection with the guaranty. |
19. | The foregoing rights of audit and information shall also apply with respect to the Lender, but only with respect to such documents as pertain to the guaranty-backed credit. The Lender shall impose an obligation on the Borrower to relieve it from any duty of non-disclosurevis-à-visthe aforementioned offices. |
20. | The respective panel of auditors [Rechnungshöfe] shall be entitled to exercise rights of audit and information under their respective financial regulations. |
21. | In the credit agreement, the Lender shall impose an obligation on the Borrower to pay guaranty fees to theBund/Landpursuant to section B. of the “Notes”, with which Lender and Borrower are familiar, as well as to bear the costs of an audit under paras. 18 and 19. |
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22. | PricewaterhouseCoopers AG, Wirtschaftsprüfungsgesellschaft, Berlin, has been engaged by theBundand the German Federal States ofBrandenburg, Mecklenburg-Vorpommern, Niedersachsen, Nordrhein-Westfalen, Sachsen, Sachsen-Anhalt and Thüringento manage and administer the Federal/State guarantees and is authorized to deliver and to receive all such declarations on behalf of theBundand theLänderas related thereto, to the extent they are not reserved to the Office Administering the Federal Debt/the offices administering the debt of thoseLänder [Bundes-/Landes-Schuldenverwaltung]. The other Federal States shall represent themselves or shall be represented by such mandataries as they shall appoint. |
23. | The place of performance is Berlin; jurisdiction and venue shall lie with the courts of Berlin. |
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GUARANTIES IN CONNECTION WITH PARALLEL STATE GUARANTIES
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5 | Exceptions apply to coastal Federal States in the sector of shipbuilding finance. |
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1. | Mandatory Costsare charged in addition to interest in order to compensate theLendersfor the costs they incur by complying with (a) the requirements of the Bank of England and/or of the British “Financial Services Authority” (and/or any other office assuming the role of one of these authorities, either in whole or in part) or (b) the requirements of the European Central Bank. |
2. | On the first day of eachInterest Period (or as soon as possible thereafter), theFacility Agent shall calculate a percentage (theAdditional Cost Rate) for eachLenderpursuant to the provisions set forth hereinafter. TheFacility Agent calculates theMandatory Costsas a weighted average of theAdditional Cost Ratesof theLenders(prorated by the percentage basis of eachLender’sparticipation in theLoan in question), expressed as an annual percentage rate. |
3. | TheAdditional Cost Rate for aLender, which disburses its loan via aFacility Officeof aParticipating Member State, is such percentage rate that theLender communicates to theFacility Agent. In its communication to theFacility Agent, thatLender shall confirm that percentage rate (expressed as a percentage of thatLender’s participation in all of theLoans disbursed by thatFacility Office) to be a reasonable assessment of the costs it incurs as a result of having to comply with the minimum reserve requirements of the European Central Bank in respect of loans from thatFacility Office. |
4. | TheFacility Agent calculates theAdditional Cost Rate for eachLender which providesLoansfrom aFacility Office in the United Kingdom as follows. |
(a) | for loans disbursed in GBP: |
(b) | for loans disbursed in currencies other than GBP: |
A | is the percentage of theEligible Liabilities (provided that they exceed a stipulated minimum) which thatLender must maintain on a temporary basis as a non-interest-bearing credit balance with the Bank of England in order to satisfy cash ratio requirements. |
B | is the percentage interest rate (exclusive ofMarginandMandatory Costs and, where the loan is an amount which has not yet been paid, the additional interest rate referenced in paragraph a) of subsection 8.2 (Default interest)) payable for the relevantInterest Period on theLoan. |
C | is the percentage rate of theEligible Liabilities, which thatLender must, in certain cases, maintain on a temporary basis as interest-bearingSpecial Depositswith the Bank of England. |
D | is the annual percentage rate payable by the Bank of England to theFacility Agent on interest-bearingSpecial Deposits. |
E | is intended to compensate theLender for amounts payable under theFee rules,whichtheFacility Agentcalculates as the average of the most current fees submitted to it by theReference Bankspursuant to paragraph 7 below and expresses in GBP per £1,000,000. |
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5. | In connection with this schedule, the following shall apply: |
(a) | Eligible LiabilitiesandSpecial Deposits shall have the meanings attributed to each of these terms under the Bank of England Act 1998 / by the Bank of England; |
(b) | Fees rulesmeans the rules contained in the Financial Services Authority Fees Manual or any other statutes and rules which may be applicable and which govern fees for the receipt of deposits; |
(c) | Fee Tariffs refer to the tariffs set forth in theFees Rulesunder group “A.1 Deposit Acceptors” (it should be noted that minimum fees or fees set at zero are not taken into account, but any applicable discounts are); |
(d) | Tariff Base has the meaning set forth in theFees rulesand is calculated in accordance with the rules set forth therein; |
(e) | Participating Member Staterefers to a Member State of the European Community which is introducing or has introduced the euro as its statutory currency in accordance with the laws of the European Union with respect to economic and currency union. |
6. | In applying the formulas set forth above, A, B, C and D are expressed as percentages (i.e., 5 percent is inserted as “5” in the formula and not as 0.05). If subtracting B-D gives rise to a negative difference, then 0 is inserted as the result. The results of the calculation are rounded to four decimal places. |
7. | As soon as possible following publication by the Financial Service Authority, upon request of theFacility Agent, eachReference Bankshall communicate the rate payable to the Financial Services Authority by the relevantReference Bankunder theFees rulesfor the relevant fiscal year. The rate shall be expressed in GBP per £1,000,000 of theFee Basisof thatReference Bank. |
8. | EachLender shall provide all such details as theFacility Agent shall request for purposes of calculating theAdditional Cost Rate. In particular, eachLender shall provide the following information no later than on the date on which it becomes aLender: |
(a) | the legal jurisdiction in which itsFacility Officeis located; and |
(b) | all other details which theFacility Agent may reasonably request for this purpose. |
9. | TheFacility Agent shall calculate the percentage rates of eachLender to be inserted as A and C in the formula and the fee rates of eachReference Bank for purposes of E, on the basis of the information provided to it pursuant to paras. 7 and 8, and on the assumption that, unless aLender has informed theFacility Agent to the contrary, theLender‘s obligations in respect of minimum reserve deposits andSpecial Deposits comport with those for a typical bank from its jurisdiction, theFacility Officeof which is located within the same legal jurisdiction as theFacility Office of theLender in question. |
10. | TheFacility Agent assumes no liability whatsoever for any over- or under-compensation to which any such calculation of theAdditional Cost Ratefor aLender may give rise, and theFacility Agent is entitled to assume that the information provided by anyLender or anyReference Bankunder paras. 3, 7 and 8 are correct in every respect. |
11. | On the basis of the information supplied by eachLender and eachReference Bankpursuant to paras. 3, 7 and 8 hereof, theFacility Agent shall distribute the additional amounts it collects as a result of theMandatory Costsincurred by the Lenders in accordance with theAdditional Cost Rate for eachLender. |
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12. | TheFacility Agent’s determinations in connection with this schedule with respect to any formula,Mandatory Costs, anyAdditional Cost Rate or any amount payable by aLender shall, in the absence of manifest error, be deemed final and binding on all Parties to this Agreement. |
13. | Following prior consultation with theBorrower andLenders, theFacility Agent may from time to time make such adaptations or amendments to this schedule as are necessary to comply with any changes of statute or regulations or of the requirements of the Bank of England, the Financial Services Authority or the European Central Bank (or of any other office assuming all or some of the roles of the foregoing) and communicate the same to all of theParties. All such determinations shall, in the absence of manifest error, be deemed final and binding on all of thePartiesto this Agreement. |
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Executed by: | /s/ David Brady | |||||||
Name of | ||||||||
signatories in | ||||||||
block letters: | David Brady | |||||||
Address: | First Solar Manufacturing GmbH | |||||||
Mr. Burghard von Westerholt | ||||||||
Marie-Curie-Strasse 3 | ||||||||
15236 Frankfurt (Oder) | ||||||||
With copies sent to: | First Solar GmbH | |||||||
Ms. Anja Lange | ||||||||
Rheinstr. 4B | ||||||||
55116 Mainz |
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Executed by: | /s/ Raoul Hessling | /s/ Tatiana Novikova | ||||||
Name of | ||||||||
signatories in | ||||||||
block letters: | Raoul Hessling | Tatiana Novikova | ||||||
Address: | Commerzbank Aktiengesellschaft | |||||||
Kaiserplatz | ||||||||
60311 Frankfurt am Main | ||||||||
Tel. +49 6913642157 | ||||||||
Fax. +49 69136629556 | ||||||||
Email: Tatiana.Novikova@Commerzbank.com |
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Executed by: | /s/ Marcus Goegler | /s/ Jőrn Tschentscher | ||||||
Name of | ||||||||
signatories in | ||||||||
block letters: | Marcus Goegler Jőrn Tschentscher | |||||||
Address: | Commerzbank Aktiengesellschaft, Luxembourg Branch | |||||||
Agency Department | ||||||||
25, Rue Edward Streichen | ||||||||
L-2540 Luxembourg | ||||||||
Tel. + 352 477 911 3108/3110/3112 | ||||||||
Fax. + 352 477 911-3905 | ||||||||
Email:joern.tschentscher@commerzbank.com | ||||||||
agency@commerzbank.com |
Executed by: | /s/ Marcus Goegler | /s/ Jőrn Tschentscher | ||||||
Name of | ||||||||
signatories in | ||||||||
block letters: | Marcus Goegler | Jőrn Tschentscher | ||||||
Address: | Commerzbank Aktiengesellschaft, Luxembourg Branch | |||||||
Security Agencies Luxembourg | ||||||||
25, Rue Edward Steichen | ||||||||
L-2540 Luxembourg | ||||||||
Tel. +352 477 911 3108/3110/3112 | ||||||||
Fax: +352 477 911-3905 | ||||||||
Email: SecurityAgenciesLux@commerzbank.com |
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Executed by: | /s/ Ruthenberg | /s/ Junior | ||||||
Name of | ||||||||
signatories in | ||||||||
block letters: | Ruthenberg | Junior |
Executed by: | /s/ B. Schneider | /s/ B. Obermayer | ||||||
Name of | ||||||||
signatories in | ||||||||
block letters: | Beate Schneider | Barbara Obermayer | ||||||
Address: | Sachsen Bank (dependent institution of Landesbank Baden-Württemberg) | |||||||
Humboldtstraße 25 | ||||||||
04105 Leipzig | ||||||||
Tel. +49 341220-38542 341 220-39111 | ||||||||
Fax: +49 341220-38519 341 220-6639111 | ||||||||
Email:beate.schneider@sachsenbank.de | Barbara.obermayer@lbbw.de |
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Executed by: | /s/ Hellwig | /s/ Raab | ||||||
Name of | ||||||||
signatories in | ||||||||
block letters: | Hellwig | Raab | ||||||
Address: | Norddeutsche Landesbank — Girozentrale | |||||||
Friedrichswall 10 | ||||||||
30159 Hannover | ||||||||
Tel. +49 | ||||||||
Fax: +49 | ||||||||
Email: |
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