Delaware
(State or other jurisdiction of incorporation) |
001-33156
(Commission File Number) |
20-4623678
(I.R.S. Employer Identification No.) |
Entry into a Material Definitive Agreement | ||||||||
|
||||||||
Financial Statements and Exhibits | ||||||||
|
||||||||
EX-10.1 | ||||||||
EX-10.2 | ||||||||
EX-10.3 | ||||||||
EX-10.4 | ||||||||
EX-10.5 | ||||||||
EX-10.6 | ||||||||
EX-10.7 | ||||||||
EX-10.8 | ||||||||
EX-10.9 |
Table of Contents
Table of Contents
Exhibits.
Credit Agreement, dated as of September 4, 2009, among First
Solar, Inc., First Solar Manufacturing GmbH, the lenders party
thereto, JPMorgan Chase Bank, N.A., as Administrative Agent,
Bank of America and The Royal Bank of Scotland plc, as
Documentation Agents, and Credit Suisse, Cayman Islands Branch,
as Syndication Agent
Charge of Company Shares, dated as of September 4, 2009, between
First Solar, Inc., as Chargor, and JPMorgan Chase Bank, N.A., as
Security Agent, relating to 66% of the shares of First Solar FE
Holdings Pte. Ltd. (Singapore)
German Share Pledge Agreements, dated as of September 4, 2009,
between First Solar, Inc., First Solar Holdings GmbH, First
Solar Manufacturing GmbH, First Solar GmbH, and JPMorgan Chase
Bank, N.A., as Administrative Agent
Guarantee and Collateral Agreement, dated as of September 4,
2009, by First Solar, Inc. in favor of JPMorgan Chase Bank,
N.A., as Administrative Agent
Guarantee, dated as of
September 8, 2009, between First Solar
Holdings GmbH, First Solar GmbH, First Solar Manufacturing GmbH,
as German Guarantors, and JPMorgan Chase Bank, N.A., as
Administrative Agent
Assignment Agreement, dated as of September 4, 2009, between
First Solar Holdings GmbH and JPMorgan Chase Bank, N.A., as
Administrative Agent
Assignment Agreement, dated as of September 4, 2009, between
First Solar GmbH and JPMorgan Chase Bank, N.A., as
Administrative Agent
Assignment Agreement, dated as of
September 8, 2009, between
First Solar Manufacturing GmbH and JPMorgan Chase Bank, N.A., as
Administrative Agent
Security Trust Agreement, dated as of September 4, 2009, between
First Solar, Inc., First Solar Holdings GmbH, First Solar GmbH,
First Solar Manufacturing GmbH, as Security Grantors, JPMorgan
Chase Bank, N.A., as Administrative Agent, and the other Secured
Parties party thereto
Table of Contents
FIRST SOLAR, INC.
Date: September 10, 2009
By:
/s/ Mary Beth Gustafsson
Name:
Mary Beth Gustafsson
Title:
Vice President, General Counsel
Page | ||||||||
|
||||||||
SECTION 1. DEFINITIONS | 1 | |||||||
1.1 |
Defined Terms
|
1 | ||||||
1.2 |
Other Definitional Provisions
|
21 | ||||||
|
||||||||
SECTION 2. AMOUNT AND TERMS OF REVOLVING COMMITMENTS | 21 | |||||||
2.1 |
Revolving Commitments
|
21 | ||||||
2.2 |
Procedure for Revolving Loan Borrowing
|
22 | ||||||
2.3 |
Increase in Revolving Commitments
|
22 | ||||||
2.4 |
Swingline Commitment
|
23 | ||||||
2.5 |
Procedure for Swingline Borrowing; Refunding of Swingline Loans
|
24 | ||||||
2.6 |
Commitment Fees, etc.
|
25 | ||||||
2.7 |
Termination or Reduction of Revolving Commitments
|
25 | ||||||
2.8 |
Optional Prepayments
|
25 | ||||||
2.9 |
Mandatory Prepayments
|
26 | ||||||
2.10 |
Conversion and Continuation Options
|
26 | ||||||
2.11 |
Limitations on Eurocurrency Tranches
|
27 | ||||||
2.12 |
Interest Rates and Payment Dates
|
27 | ||||||
2.13 |
Computation of Interest and Fees
|
27 | ||||||
2.14 |
Inability to Determine Interest Rate
|
28 | ||||||
2.15 |
Pro Rata Treatment and Payments
|
28 | ||||||
2.16 |
Requirements of Law
|
29 | ||||||
2.17 |
Taxes
|
30 | ||||||
2.18 |
Indemnity
|
33 | ||||||
2.19 |
Change of Lending Office
|
33 | ||||||
2.20 |
Replacement of Lenders
|
34 | ||||||
2.21 |
Defaulting Lenders
|
34 | ||||||
2.22 |
Borrowing Subsidiaries
|
36 | ||||||
|
||||||||
SECTION 3. LETTERS OF CREDIT | 36 | |||||||
3.1 |
L/C Commitment
|
36 | ||||||
3.2 |
Procedure for Issuance of Letter of Credit
|
37 | ||||||
3.3 |
Fees and Other Charges
|
37 | ||||||
3.4 |
L/C Participations
|
38 | ||||||
3.5 |
Reimbursement Obligation of the Borrowers
|
39 | ||||||
3.6 |
Obligations Absolute
|
39 | ||||||
3.7 |
Letter of Credit Payments
|
39 | ||||||
3.8 |
Applications
|
40 | ||||||
|
||||||||
SECTION 4. REPRESENTATIONS AND WARRANTIES | 40 | |||||||
4.1 |
Financial Condition
|
40 |
i
Page | ||||||||
|
||||||||
4.2 |
No Change
|
40 | ||||||
4.3 |
Existence; Compliance with Law
|
40 | ||||||
4.4 |
Power; Authorization; Enforceable Obligations
|
40 | ||||||
4.5 |
No Legal Bar
|
41 | ||||||
4.6 |
Litigation
|
41 | ||||||
4.7 |
No Default
|
41 | ||||||
4.8 |
Ownership of Property
|
41 | ||||||
4.9 |
Intellectual Property
|
41 | ||||||
4.10 |
Taxes
|
41 | ||||||
4.11 |
Federal Regulations
|
42 | ||||||
4.12 |
Labor Matters
|
42 | ||||||
4.13 |
ERISA; Foreign Benefit Arrangements and Plans
|
42 | ||||||
4.14 |
Investment Company Act; Other Regulations
|
42 | ||||||
4.15 |
Restricted Subsidiaries
|
42 | ||||||
4.16 |
Use of Proceeds
|
42 | ||||||
4.17 |
Environmental Matters
|
42 | ||||||
4.18 |
Accuracy of Information, etc
|
43 | ||||||
4.19 |
Security Documents
|
43 | ||||||
4.20 |
Repayment of Debt
|
44 | ||||||
|
||||||||
SECTION 5. CONDITIONS PRECEDENT | 44 | |||||||
5.1 |
Conditions to Initial Extension of Credit
|
44 | ||||||
5.2 |
Conditions to Each Extension of Credit
|
45 | ||||||
|
||||||||
SECTION 6. AFFIRMATIVE COVENANTS | 46 | |||||||
6.1 |
Financial Statements
|
46 | ||||||
6.2 |
Certificates; Other Information
|
46 | ||||||
6.3 |
Payment of Obligations
|
48 | ||||||
6.4 |
Maintenance of Existence; Compliance
|
48 | ||||||
6.5 |
Maintenance of Property; Insurance
|
48 | ||||||
6.6 |
Inspection of Property; Books and Records; Discussions
|
48 | ||||||
6.7 |
Notices
|
48 | ||||||
6.8 |
Environmental Laws
|
49 | ||||||
6.9 |
Additional Collateral, etc
|
49 | ||||||
6.10 |
Designation of Subsidiaries
|
50 | ||||||
6.11 |
Post-Closing Obligations
|
51 | ||||||
|
||||||||
SECTION 7. NEGATIVE COVENANTS | 51 | |||||||
7.1 |
Financial Condition Covenants
|
51 | ||||||
7.2 |
Indebtedness and Guarantee Obligations
|
51 | ||||||
7.3 |
Liens
|
52 | ||||||
7.4 |
Fundamental Changes
|
54 | ||||||
7.5 |
Disposition of Property
|
55 | ||||||
7.6 |
Restricted Payments
|
56 |
ii
Page | ||||||||
|
||||||||
7.7 |
Acquisitions
|
56 | ||||||
7.8 |
Transactions with Affiliates
|
56 | ||||||
7.9 |
Sales and Leasebacks
|
56 | ||||||
7.10 |
Swap Agreements
|
56 | ||||||
7.11 |
Changes in Fiscal Periods
|
57 | ||||||
7.12 |
Negative Pledge Clauses
|
57 | ||||||
7.13 |
Clauses Restricting Subsidiary Distributions
|
57 | ||||||
7.14 |
Lines of Business
|
57 | ||||||
|
||||||||
SECTION 8. EVENTS OF DEFAULT | 57 | |||||||
|
||||||||
SECTION 9. THE AGENTS | 60 | |||||||
9.1 |
Appointment
|
60 | ||||||
9.2 |
Delegation of Duties
|
60 | ||||||
9.3 |
Exculpatory Provisions
|
61 | ||||||
9.4 |
Reliance by Administrative Agent
|
61 | ||||||
9.5 |
Notice of Default
|
61 | ||||||
9.6 |
Non-Reliance on Agents and Other Lenders
|
61 | ||||||
9.7 |
Indemnification
|
62 | ||||||
9.8 |
Agent in Its Individual Capacity
|
62 | ||||||
9.9 |
Successor Administrative Agent
|
62 | ||||||
9.10 |
Documentation Agent and Syndication Agent
|
63 | ||||||
|
||||||||
SECTION 10. MISCELLANEOUS | 63 | |||||||
10.1 |
Amendments and Waivers
|
63 | ||||||
10.2 |
Notices
|
64 | ||||||
10.3 |
No Waiver; Cumulative Remedies
|
65 | ||||||
10.4 |
Survival of Representations and Warranties
|
65 | ||||||
10.5 |
Payment of Expenses and Taxes
|
65 | ||||||
10.6 |
Successors and Assigns; Participations and Assignments
|
66 | ||||||
10.7 |
Adjustments; Set-off
|
69 | ||||||
10.8 |
Counterparts
|
70 | ||||||
10.9 |
Severability
|
70 | ||||||
10.10 |
Integration
|
70 | ||||||
10.11 |
GOVERNING LAW
|
70 | ||||||
10.12 |
Submission To Jurisdiction; Waivers
|
70 | ||||||
10.13 |
Acknowledgements
|
71 | ||||||
10.14 |
Releases of Guarantees and Liens
|
71 | ||||||
10.15 |
Confidentiality
|
71 | ||||||
10.16 |
WAIVERS OF JURY TRIAL
|
72 | ||||||
10.17 |
No Fiduciary Duty
|
72 | ||||||
10.18 |
USA Patriot Act
|
73 |
iii
1
ABR Loans | Eurocurrency Loans | |||||||
Revolving Loans and
Swingline Loans
|
1.75 | % | 2.75 | % |
Applicable Margin | ||||||||||||
for Eurocurrency | Applicable Margin | |||||||||||
Corporate Rating | Loans | for ABR Loans | Commitment Fee Rate | |||||||||
BBB+/Baa1
|
2.25 | % | 1.25 | % | 0.375 | % | ||||||
BBB/Baa2
|
2.50 | % | 1.50 | % | 0.375 | % | ||||||
BBB-/Baa3
|
2.75 | % | 1.75 | % | 0.375 | % |
Consolidated | Applicable Margin for | Applicable Margin | ||||||||||
Leverage Ratio | Eurocurrency Loans | for ABR Loans | Commitment Fee Rate | |||||||||
<1.00x
|
2.75 | % | 1.75 | % | 0.375 | % | ||||||
>
1.00x but <1.50x
|
3.00 | % | 2.00 | % | 0.50 | % | ||||||
>
1.50x
|
3.25 | % | 2.25 | % | 0.625 | % |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
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44
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46
47
48
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61
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63
Borrowers:
|
First Solar, Inc. | |
|
350 West Washington Street,
Suite 600 |
|
|
Tempe, Arizona 85281 | |
|
Attention: David Brady | |
|
Telecopy: (602) 414-9462 | |
|
Telephone: (602) 414-9362 | |
|
||
|
First Solar, Inc. | |
|
350 West Washington Street,
Suite 600 |
|
|
Tempe, Arizona 85281 | |
|
Attention: Peter Bartolino, Esq. | |
|
Telecopy: (602) 414-9423 | |
|
Telephone: (602) 414-9323 | |
|
||
Administrative
Agent and JPMorgan
Chase Bank, N.A. as
Issuing Lender:
|
JPMorgan Chase Bank, N.A.
10 South Dearborn, 7 th Floor Chicago, IL 60603 |
64
|
Attention: Creston Wren | |
|
Telecopy: (312) 385-7097 | |
|
Telephone: (312) 385-7016 | |
|
||
|
JPMorgan Chase Bank, N.A. | |
|
125 London Wall | |
|
London | |
|
EC2Y 5AJ | |
|
Attention: Lucy Chick | |
|
Telecopy: +44(0)20 7325 6835 | |
|
Telephone: +44(0)20 7325 6926 | |
|
||
|
JPMorgan Chase Bank, N.A. | |
|
201 North Central Avenue,
Floor 21 |
|
|
Phoenix, AZ 85004 | |
|
Attention: Mark Chambers | |
|
Telecopy: (602) 221-1502 | |
|
Telephone: (602) 221-2290 |
65
66
67
68
69
70
71
72
73
FIRST SOLAR, INC.
|
||||
By: | /s/ Jens Meyerhoff | |||
Name: | Jens Meyerhoff | |||
Title: | CFO | |||
FIRST SOLAR MANUFACTURING GmbH
|
||||
By: | /s/ David Brady | |||
Name: | David Brady | |||
Title: | Authorized Officer ( Prokurist ) | |||
JPMORGAN CHASE BANK, N.A., as Administrative
Agent and as a Lender |
||||
By: | /s/ R. Mark Chambers | |||
Name: | R. Mark Chambers | |||
Title: | Senior Vice President | |||
BANK OF AMERICA, N.A., as a Documentation Agent
and as a Lender |
||||
By: | /s/ David R. Barney | |||
Name: | David R. Barney | |||
Title: | Senior Vice President | |||
THE ROYAL BANK OF SCOTLAND PLC, as a Documentation
Agent and as a Lender
|
||||
By: | /s/ Peter Bickford | |||
Name: | Peter Bickford | |||
Title: | Managing Director | |||
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as
Syndication Agent and as a Lender |
||||
By: | /s/ Bill ODaly | |||
Name: | Bill ODaly | |||
Title: | Director | |||
By: | /s/ Ilya Ivashkov | |||
Name: | Ilya Ivashkov | |||
Title: | Associate | |||
GOLDMAN SACHS BANK (EUROPE), PLC, as a Lender
|
||||
By: | /s/ David Buckley | |||
Name: | David Buckley | |||
Title: | Director | |||
WELLS FARGO BANK, N.A., as a Lender
|
||||
By: | /s/ Ken Edens | |||
Name: | Ken Edens | |||
Title: | Vice President | |||
HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender
|
||||
By: | /s/ Steven F. Larsen | |||
Name: | Steven F. Larsen | |||
Title: | First Vice President | |||
ROYAL BANK OF CANADA, as a Lender
|
||||
By: | /s/ Jay T. Sartain | |||
Name: | Jay T. Sartain | |||
Title: | Authorized Signatory | |||
MORGAN STANLEY BANK, N.A., as a Lender
|
||||
By: | /s/ Paul Fossati | |||
Name: | Paul Fossati | |||
Title: | Authorized Signatory | |||
Page | ||||||
Clause | ||||||
|
||||||
1.
|
Interpretation | 1 | ||||
2.
|
Creation of Security | 3 | ||||
3.
|
Further assurances | 3 | ||||
4.
|
Restrictions on dealings | 4 | ||||
5.
|
Representations and warranties | 4 | ||||
6.
|
Shares | 5 | ||||
7.
|
General Undertakings | 7 | ||||
8.
|
Preservation of Security | 7 | ||||
9.
|
When Security becomes enforceable | 9 | ||||
10.
|
Enforcement of Security | 10 | ||||
11.
|
Receiver | 11 | ||||
12.
|
Powers of Receiver | 12 | ||||
13.
|
Application of proceeds | 13 | ||||
14.
|
Expenses and indemnity | 13 | ||||
15.
|
Delegation | 14 | ||||
16.
|
Power of attorney | 14 | ||||
17.
|
Miscellaneous | 14 | ||||
18.
|
Release | 15 | ||||
19.
|
Evidence and calculations | 15 | ||||
20.
|
Notices | 15 | ||||
21.
|
Language | 16 | ||||
22.
|
Severability | 16 | ||||
23.
|
Waivers and remedies cumulative | 17 | ||||
24.
|
Counterparts | 17 | ||||
25.
|
Governing law | 17 | ||||
26.
|
Enforcement | 17 | ||||
|
||||||
Schedule | ||||||
|
||||||
1.
|
Shares | 19 | ||||
|
||||||
Signatories | 20 |
(a) | The Chargor enters into this Security Document in connection with the Credit Agreement (as defined below). | |
(b) | It is intended that this document takes effect as a deed notwithstanding the fact that a party may only execute this document under hand. |
1. | INTERPRETATION | |
1.1 | Definitions | |
In this Security Document: | ||
Act means the Conveyancing and Law of Property Act, Chapter 61 of Singapore. | ||
Credit Agreement means the US$300,000,000 credit agreement dated on or about the date of this Security Document between, among others, the Chargor and the Security Agent. | ||
Finance Party means the Administrative Agent, any Lender, any Issuing Lender, or, in the case of a Specified Swap Agreement, any affiliate of any Lender. | ||
Grantor means any person that is a Grantor under the Guarantee and Collateral Agreement. | ||
Party means a party to this Security Document. | ||
Receiver means a receiver and manager, a receiver, judicial manager or other manager, in each case, appointed under this Security Document. | ||
Related Rights means: |
(a) | any dividend, interest or other distribution paid or payable in relation to any Shares; | ||
(b) | any right, money or property accruing or offered at any time in relation to any Shares by way of redemption, substitution, exchange, bonus or preference, under option rights or otherwise; and | ||
(c) | any other shares of the Subject Company that are acquired by the Chargor at any time after the date of this Deed provided that the aggregate of the Shares, and any other shares falling within this paragraph (c) must not exceed 66% of the issued shares of the Subject Company. |
Secured Liabilities means the unpaid principal of and interest on (including interest accruing at the then applicable rate provided in the Credit Agreement after the maturity of the Loans and Reimbursement Obligations and interest accruing at the then applicable rate provided in the Credit Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, |
1
reorganization or like proceeding, relating to the Chargor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Chargor to the Security Agent or to any Finance Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Credit Agreement, any other Loan Document, the Letters of Credit or any Specified Swap Agreement, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Security Agent or to any Lender that are required to be paid by the Chargor pursuant thereto) or otherwise. |
Security means any Security Interest created, evidenced or conferred by or under this Security Document. | ||
Security Assets means assets of the Chargor which are the subject of any security created by this Security Document. | ||
Security Interest means a Lien. | ||
Security Period means the period beginning on the date of this Security Document and ending on the date on which all the Secured Liabilities have been unconditionally and irrevocably paid and discharged in full. | ||
Singapore means the Republic of Singapore. | ||
Shares means the shares specified in Schedule 1 (Shares). | ||
Subject Company means the company identified in Schedule 1 (Shares). | ||
Trustees Act means the Trustees Act, Chapter 337 of Singapore. |
1.2 | Construction | |
(a) | Capitalised terms defined in the Credit Agreement have, unless expressly defined in this Security Document, the same meaning in this Security Document. | |
(b) | The provisions of section 1.2 (Other Definitional Provisions) of the Credit Agreement apply to this Security Document as though they were set out in full in this Security Document, except that references to the Credit Agreement will be construed as references to this Security Document. | |
(c) | A reference to a Loan Document or other document or security includes (without prejudice to any prohibition on amendments) any amendment to that Loan Document or other document or security, including any change in the purpose of, any extension or any increase in the amount of a facility or any additional facility. | |
(d) | Any covenant of the Chargor under this Security Document (other than a payment obligation) remains in force during the Security Period and is given for the benefit of each Finance Party. | |
(e) | If the Security Agent considers that an amount paid to a Finance Party under a Loan Document is capable of being avoided or otherwise set aside on the liquidation, administration, judicial management or winding-up of the payer or otherwise, then that amount will not be considered to have been irrevocably paid for the purposes of this Security Document. | |
(f) | Unless the context otherwise requires, a reference to a Security Asset includes: |
2
(i) | any part of that Security Asset; and | ||
(ii) | the proceeds of that Security Asset. |
(g) | References to the Security Agent as a party to any other document shall be construed as references to the Security Agent acting in its capacity as Administrative Agent pursuant to its appointment as administrative agent under section 9 of the Credit Agreement and section 7 of the Guarantee and Collateral Agreement. | |
1.3 | Contracts (Rights of Third Parties) Act | |
(a) | Unless expressly provided to the contrary and other than the Finance Parties, a person who is not a party to this Security Document has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce or enjoy the benefit of any term of this Security Document. | |
(b) | Notwithstanding any terms of this Security Document, the consent of any third party is not required for any variation (including any release or compromise of any liability under) or termination of this Security Document. | |
2. | CREATION OF SECURITY | |
2.1 | General | |
(a) | All the security created under this Security Document: |
(i) | is created in favour of the Security Agent; and | ||
(ii) | is security for the payment, discharge and performance of all the Secured Liabilities. |
(b) | The Security Agent holds the benefit of this Security Document on trust for the Finance Parties. | |
2.2 | Shares | |
The Chargor charges by way of a first fixed charge: |
(a) | all the Shares; and | ||
(b) | all Related Rights. |
3. | FURTHER ASSURANCES | |
The Chargor must, at its own expense and after receipt of a written request from the Security Agent, take whatever action the Security Agent or a Receiver may reasonably require for: |
(a) | creating, perfecting or protecting any security intended to be created by or pursuant to this Security Document or the priority of any security intended to be created by or pursuant to this Security Document; | ||
(b) | facilitating the realisation of any Security Asset; | ||
(c) | facilitating the exercise of any right, power or discretion exercisable, by the Security Agent or any Receiver or any of their delegates or sub-delegates in respect of any Security Asset; or |
3
(d) | creating and perfecting security in favour of the Security Agent (equivalent to the security intended to be created by this Security Document) over Shares or Related Rights located in any jurisdiction outside Singapore. |
This includes: |
(i) | the re-execution of this Security Document; | ||
(ii) | the execution of any transfer whether to the Security Agent or to its nominee; and | ||
(iii) | the giving of any notice and the making of any filing or registration, |
which, in any such case, the Security Agent may think expedient. |
4. | RESTRICTIONS ON DEALINGS | |
The Chargor must not: |
(a) | create or permit to subsist any Security Interest on any Security Asset (save for any Security Interest created under the Loan Documents); or | ||
(b) | sell, transfer, or otherwise dispose of any Security Asset. |
5. | REPRESENTATIONS AND WARRANTIES | |
5.1 | Representations and warranties | |
The Chargor makes the representations and warranties set out in this Clause to each Finance Party. | ||
5.2 | Nature of security | |
This Security Document creates those Security Interests it purports to create and is not liable to be avoided or otherwise set aside on its liquidation, administration, judicial management or winding-up or otherwise. | ||
5.3 | Shares | |
(a) | The Shares are duly authorised, validly issued and fully paid and are not subject to any option to purchase or similar right. | |
(b) | The Shares represent 66% of the issued voting share capital of the Subject Company. | |
(c) | The Chargor is the sole legal and beneficial owner of the Shares. | |
(d) | The Security Assets are (save for any Security Interest created under the Loan Documents) free from: |
(i) | any Security Interest; and | ||
(ii) | any interests or claims of third parties. |
5.4 | Times for making representations and warranties | |
(a) | The representations and warranties set out in this Security Document (including in this Clause) are made on the date of this Security Document. |
4
(b) | Each representation and warranty under this Security Document is deemed to be repeated by the Chargor on each date during the Security Period. | |
(c) | When a representation and warranty is deemed to be repeated, it is applied to the circumstances existing at the time of repetition. | |
6. | SHARES | |
6.1 | Deposit | |
The Chargor must: |
(a) | immediately deposit with the Security Agent or, as the Security Agent may direct, all certificates and other documents of title or evidence of ownership in relation to the Security Assets; and | ||
(b) | promptly execute and deliver to the Security Agent all share transfers and other documents, including transfers of the Shares executed in blank, which may be requested by the Security Agent in order to enable the Security Agent or its nominees to be registered as the owner or otherwise obtain a legal title to any Security Assets. |
6.2 | Changes to rights | |
The Chargor must not take or allow the taking of any action on its behalf which may result in the rights attaching to any Security Assets being altered or further shares in the Subject Company being issued. | ||
6.3 | Calls | |
(a) | The Chargor must pay all calls and other payments due and payable in respect of any Security Assets. | |
(b) | If the Chargor fails to do so, the Security Agent may pay any such calls or other payments on behalf of the Chargor. The Chargor must immediately on written request reimburse the Security Agent for any payment made by the Security Agent under this Subclause. | |
6.4 | Other obligations in respect of Security Assets | |
(a) | The Chargor must comply with all written requests for information which is within its knowledge and which are made under any law or regulation or by any listing or other authority or any similar provision contained in any constitutional document relating to any Security Assets. If it fails to do so, the Security Agent may elect to provide such information as it may have on behalf of the Chargor. | |
(b) | The Chargor must promptly supply to the Security Agent a copy of any information referred to in sub-paragraph (a) above. | |
(c) | The Chargor must comply with all other conditions and obligations assumed by it in respect of any Security Assets. | |
(d) | No Finance Party is obliged to: |
(i) | perform any obligation of the Chargor; | ||
(ii) | make any payment; |
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(iii) | make any enquiry as to the nature or sufficiency of any payment received by it or the Chargor; or | ||
(iv) | present or file any claim or take any other action to collect or enforce the payment of any amount to which it may be entitled under this Security Document, | ||
in respect of any Security Assets. |
6.5 | Voting rights | |
(a) | Before this Security becomes enforceable, the Chargor may continue to exercise the voting rights, powers and other rights in respect of the Security Assets. | |
(b) | Before this Security becomes enforceable, if any Security Assets have been registered in the name of the Security Agent or its nominee, the Security Agent (or its nominee) must exercise the voting rights, powers and other rights in respect of the Security Assets in the manner in which the Chargor may direct in writing. The Security Agent (or that nominee) will execute any form of proxy or other document which the Chargor may reasonably require for this purpose. | |
(c) | Before this Security becomes enforceable, all dividends or other income or distributions paid or payable in relation to any Security Assets must be paid to the Chargor. To achieve this: |
(i) | the Security Agent or its nominee must promptly execute any dividend mandate necessary to ensure that payment is made direct to the Chargor; or | ||
(ii) | if payment is made directly to the Security Agent (or its nominee) before this Security becomes enforceable, the Security Agent (or that nominee) must promptly pay that amount to the Chargor. |
(d) | Before this Security becomes enforceable, the Security Agent must use its reasonable endeavours to forward promptly to the Chargor all material notices, correspondence and/or other communication it receives in relation to the Security Assets. | |
(e) | After this Security has become enforceable, the Security Agent or its nominee may exercise or refrain from exercising: |
(i) | any voting rights; and | ||
(ii) | any other powers or rights which may be exercised by the legal or beneficial owner of any Security Assets, any person who is the holder of any Security Assets or otherwise, |
in each case, in the name of the Chargor, the registered holder or otherwise and without any further consent or authority on the part of the Chargor and irrespective of any direction given by the Chargor. |
(f) | If any Security Asset remains registered in the name of the Chargor, the Chargor irrevocably appoints the Security Agent or its nominee as its proxy to exercise all voting rights in respect of those Security Assets at any time after this Security has become enforceable. | |
(g) | The Chargor must indemnify the Security Agent against any loss or liability incurred by the Security Agent as a consequence of the Security Agent acting in respect of the Security Assets at the direction of the Chargor, provided that the foregoing indemnity will not apply to losses, claims, damages, liabilities or related expenses to the extent they arise from the wilful misconduct or gross negligence of the Security Agent. |
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6.6 | Filing | |
The Chargor must make timely filing and registration of this Security Document in order to preserve and perfect this Security. | ||
6.7 | Documents | |
The Chargor shall promptly execute and/or deliver to the Security Agent such documents relating to the Shares as the Security Agent reasonably requires. | ||
7. | GENERAL UNDERTAKINGS | |
7.1 | Compliance with laws | |
The Chargor shall comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Loan Documents. | ||
7.2 | Restrictions on dealing | |
Without the prior written consent of the Administrative Agent, the Chargor shall not do, or permit to be done, anything which could prejudice the Security or use the Security Assets in any way which is prejudicial to the interests of the Finance Parties. | ||
7.3 | Discharge other debts | |
The Chargor shall punctually pay and discharge all debts and obligations which by law have priority over the Security. | ||
7.4 | Depreciation of Security Assets | |
The Chargor shall not do or cause or permit to be done anything which may in any way depreciate, jeopardise or otherwise prejudice the value of the Security Assets. | ||
7.5 | Memorandum and Articles of Association | |
The Chargor will (promptly after any request by the Security Agent) cause the Memorandum of Association and Articles of Association of the Subject Company to be amended in the manner requested by the Security Agent for the purpose of ensuring that the directors of the Subject Company shall not be entitled to decline to register, or suspend the registration of, any transfer of any Shares where such transfer is executed (whether as transferor or transferee) by any bank or financial institution to whom such Shares shall have been charged or pledged by way of security, or by any nominee of such bank or financial institution, but shall not, unless the Security Agent otherwise requires or shall otherwise have given its prior consent in writing, cause, procure or allow any other amendment or variations to be made to the Memorandum of Association or the Articles of Association of the Subject Company. | ||
8. | PRESERVATION OF SECURITY | |
8.1 | Continuing security | |
This Security is a continuing security and will extend to the ultimate balance of the Secured Liabilities, regardless of any intermediate payment or discharge in whole or in part. |
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8.2 | Reinstatement | |
(a) | If any discharge (whether in respect of the obligations of any Grantor or any security for those obligations or otherwise) or arrangement is made in whole or in part on the faith of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation, administration or otherwise without limitation, the liability of the Chargor under this Security Document will continue or be reinstated as if the discharge or arrangement had not occurred. | |
(b) | Each Finance Party may concede or compromise any claim that any payment, security or other disposition is liable to avoidance or restoration. | |
8.3 | Waiver of defences | |
The obligations of the Chargor under this Security Document will not be affected by any act, omission or thing (whether or not known to it or any Finance Party) which, but for this provision, would reduce, release or prejudice any of its obligations under this Security Document. This includes: |
(a) | any time or waiver granted to, or composition with, any person; | ||
(b) | any release of any person under the terms of any composition or arrangement; | ||
(c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any person (other than a full release of this Security Document); | ||
(d) | any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; | ||
(e) | any incapacity, lack of power, authority or legal personality of or dissolution or change in the members or status of any person; | ||
(f) | any amendment of a Loan Document or any other document or security; | ||
(g) | any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Loan Document or any other document or security or the failure by the Chargor to enter into or be bound by any Loan Document; or | ||
(h) | any insolvency or similar proceeding. |
8.4 | Immediate recourse | |
The Chargor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings relative to any other person before claiming from the Chargor under this Security Document. | ||
8.5 | Appropriations | |
At any time during the Security Period, each Finance Party (or any trustee or agent on its behalf) may without affecting the liability of the Chargor under this Security Document: |
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(a) | (i) | refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) against those amounts; or | |||
(ii) | apply and enforce them in such manner and order as it sees fit (whether against those amounts or otherwise); and | ||||
(b) | hold in a non-interest-bearing suspense account any moneys received from the Chargor or on account of the Chargors liability under this Security Document. |
8.6 | Non-competition | |
Unless the Security Period has expired or the Security Agent otherwise directs, the Chargor will not, after a claim has been made under this Security Document or by virtue of any payment or performance by it under this Security Document: |
(a) | be subrogated to any rights, security or moneys held, received or receivable by any Finance Party (or any trustee or agent on its behalf); | ||
(b) | be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of the Chargors liability under this Clause; | ||
(c) | claim, rank, prove or vote as a creditor of any Grantor or its estate in competition with any Finance Party (or any trustee or agent on its behalf); or | ||
(d) | receive, claim or have the benefit of any payment, distribution or security from or on account of any Grantor, or exercise any right of set-off as against any Grantor. |
The Chargor must hold in trust for and immediately pay or transfer to the Security Agent for the Finance Parties any payment or distribution or benefit of security received by it contrary to this Clause or in accordance with any directions given by the Security Agent under this Clause. |
8.7 | Additional security | |
(a) | This Security Document is in addition to and is not in any way prejudiced by any other security now or subsequently held by any Finance Party. | |
(b) | No prior security held by any Finance Party (in its capacity as such or otherwise) over any Security Asset will merge into this Security. | |
8.8 | Security held by Chargor | |
The Chargor must not, without the prior consent of the Security Agent, hold any security from any Grantor in respect of the Chargors liability under this Security Document. The Chargor will hold any security held by it in breach of this provision on trust for the Security Agent. | ||
9. | WHEN SECURITY BECOMES ENFORCEABLE | |
9.1 | Timing | |
This Security will become immediately enforceable if an Event of Default occurs. |
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(i) | whether the Secured Liabilities have become payable; | ||
(ii) | whether any power which the Security Agent or a Receiver is purporting to exercise has become exercisable or is being properly exercised; | ||
(iii) | whether any money remains due under the Loan Documents; or | ||
(iv) | how any money paid to the Security Agent or to that Receiver is to be applied. |
(b) | Subject to the provisions of this Security Document, all the protection to purchasers contained in Section 26 and 27 of the Act or any other legislation shall apply to any person purchasing from or dealing with the Security Agent, the Receiver or any of its or his assets. | |
10.5 | Redemption of prior mortgages | |
(a) | At any time after this Security has become enforceable, the Security Agent may: |
(i) | redeem any prior Security Interest against any Security Asset; and/or | ||
(ii) | procure the transfer of that Security Interest to itself; and/or |
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(iii) | settle and pass the accounts of the prior mortgagee, chargee or encumbrancer; any accounts so settled and passed will be, in the absence of manifest error, conclusive and binding on the Chargor. |
(b) | The Chargor must pay to the Security Agent, immediately on written demand, the properly incurred costs and expenses incurred by the Security Agent in connection with any such redemption and/or transfer, including the payment of any principal or interest. | |
10.6 | Contingencies | |
If this Security is enforced at a time when no amount is due under the Loan Documents but at a time when amounts may or will become due, the Security Agent (or the Receiver) may pay the proceeds of any recoveries effected by it into such number of suspense accounts as it considers appropriate. | ||
11. | RECEIVER | |
11.1 | Appointment of Receiver | |
(a) | Except as provided below, the Security Agent may appoint any one or more persons to be a Receiver of all or any part of the Security Assets if: |
(i) | this Security has become enforceable; or | ||
(ii) | the Chargor so requests the Security Agent in writing at any time. |
(b) | Any appointment under paragraph (a) above may be by deed, under seal or in writing under its hand. | |
(c) | Except as provided below, any restriction imposed by law on the right of a mortgagee to appoint a Receiver (including under section 29(1) of the Act) does not apply to this Security Document. | |
11.2 | Removal | |
The Security Agent may by writing under its hand, with written notice to the Chargor, remove any Receiver appointed by it and may, whenever it thinks fit, appoint a new Receiver in the place of any Receiver whose appointment may for any reason have terminated. | ||
11.3 | Remuneration | |
The Security Agent may fix the remuneration of any Receiver appointed by it and any maximum rate imposed by law (including under section 29(6) of the Act) will not apply. | ||
11.4 | Agent of the Chargor | |
(a) | A Receiver will be deemed to be the agent of the Chargor for all purposes and accordingly will be deemed to be in the same position as a Receiver duly appointed by a mortgagee under the Act. The Chargor is solely responsible for the contracts, engagements, acts, omissions, defaults and losses of a Receiver and for liabilities incurred by a Receiver, provided that this shall not prejudice any right or remedy the Chargor may have against the Receiver. | |
(b) | No Finance Party will incur any liability (either to the Chargor or to any other person) by reason of the appointment of a Receiver or for any other reason. |
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11.5 | Relationship with Security Agent | |
To the fullest extent allowed by law, any right, power or discretion conferred by this Security Document (either expressly or impliedly) or by law on a Receiver may after this Security becomes enforceable be exercised by the Security Agent in relation to any Security Asset without first appointing a Receiver or notwithstanding the appointment of a Receiver. | ||
12. | POWERS OF RECEIVER | |
12.1 | General | |
(a) | A Receiver has all the rights, powers and discretions set out below in this Clause in addition to those conferred on it by any law. This includes all the rights, powers and discretions conferred on a receiver (or a receiver and manager or a judicial manager) under the Act and as set out below and in addition to those conferred on it by any law. | |
(b) | If there is more than one Receiver holding office at the same time, each Receiver may (unless the document appointing him states otherwise) exercise all the powers conferred on a Receiver under this Security Document individually and to the exclusion of any other Receiver. | |
12.2 | Possession | |
A Receiver may take immediate possession of, get in and collect any Security Asset. | ||
12.3 | Sale of assets | |
(a) | A Receiver may sell, exchange, convert into money and realise any Security Asset by public auction or private contract and generally in any manner and on any terms which he thinks fit. | |
(b) | The consideration for any such transaction may consist of cash, debentures or other obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments spread over any period which he thinks fit. | |
12.4 | Compromise | |
A Receiver may settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands with or by any person who is or claims to be a creditor of the Chargor or relating in any way to any Security Asset. | ||
12.5 | Legal Actions | |
A Receiver may bring, prosecute, enforce, defend and abandon all actions, suits and proceedings in relation to any Security Asset which he thinks fit. | ||
12.6 | Borrow money | |
A Receiver may borrow or raise money either unsecured or on the security of the Security Assets (either in priority to the Security or otherwise). | ||
12.7 | Redemption of Security | |
A Receiver may redeem any Security Interests (whether or not having priority to the Security) over the Security Assets and to settle the accounts of any person with an interest in the Security Assets. |
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12.8 | Receipts | |
A Receiver may give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any Security Asset. | ||
12.9 | Delegation | |
A Receiver may delegate his powers in accordance with this Security Document. | ||
12.10 | Other powers | |
A Receiver may: |
(a) | do all other acts and things which he may consider desirable or reasonably necessary for realising any Security Asset or incidental or conducive to any of the rights, powers or discretions conferred on a Receiver under or by virtue of this Security Document or law; | ||
(b) | exercise in relation to any Security Asset all the powers, authorities and things which he would be capable of exercising if he were the absolute beneficial owner of that Security Asset; and | ||
(c) | exercise the above powers in the name of and on behalf of the Chargor for any of the above purposes. |
13. | APPLICATION OF PROCEEDS | |
Unless otherwise determined by the Security Agent or any Receiver, any moneys received by the Security Agent or that Receiver after this Security has become enforceable must be applied in the following order of priority: |
(a) | in or towards payment of or provision for all costs and expenses incurred by the Security Agent or any Receiver under or in connection with this Security Document and of all remuneration due to any Receiver under or in connection with this Security Document; | ||
(b) | in payment to the Security Agent for application towards the balance of the Secured Liabilities; and | ||
(c) | in payment of the surplus (if any) to the Chargor or other person entitled to it. |
This Clause is subject to the payment of any claims having priority over this Security. This Clause does not prejudice the right of any Finance Party to recover any shortfall from the Chargor. | ||
14. | EXPENSES AND INDEMNITY | |
The Chargor must: |
(a) | promptly on written demand pay all reasonable costs and expenses (including legal fees) incurred in connection with this Security Document by any Finance Party, Receiver, attorney, manager, agent or other person appointed by the Security Agent under this Security Document; and | ||
(b) | keep each of them indemnified against any loss or liability incurred by it in connection with any litigation, arbitration or administrative proceedings concerning this Security, provided that the foregoing indemnity will not apply to losses, claims, damages, liabilities or related |
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expenses to the extent they arise from the wilful misconduct or gross negligence of any indemnified person. |
15. | DELEGATION | |
15.1 | Power of Attorney | |
The Security Agent or any Receiver may delegate by power of attorney or in any other manner to any person any right, power or discretion exercisable by it under this Security Document. | ||
15.2 | Terms | |
Any such delegation may be made upon any terms (including power to sub-delegate) which the Security Agent or any Receiver may think fit. | ||
15.3 | Liability | |
Neither the Security Agent nor any Receiver will be in any way liable or responsible to the Chargor for any loss or liability arising from any act, default, omission or misconduct on the part of any delegate or sub-delegate except to the extent directly attributable to that delegate or sub-delegates gross negligence or wilful misconduct. Any third party referred to in this Clause may enjoy the benefit of or enforce the terms of this Clause in accordance with the provisions of the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore. | ||
16. | POWER OF ATTORNEY | |
The Chargor, by way of security, irrevocably and severally appoints the Security Agent, each Receiver and any of their delegates or sub-delegates to be its attorney to take any action which the Chargor is obliged to take under this Security Document. The Chargor ratifies and confirms whatever any attorney lawfully does or purports to do under its appointment under this Clause. Any third party referred to in this Clause may enjoy the benefit of or enforce the terms of this Clause in accordance with the provisions of the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore. | ||
17. | MISCELLANEOUS | |
17.1 | Covenant to pay | |
The Chargor must pay or discharge the Secured Liabilities in the manner provided for in the Loan Documents. | ||
17.2 | Tacking | |
Each Lender must perform its obligations under the Credit Agreement (including any obligation to make available further advances). | ||
17.3 | New Accounts | |
(a) | If any subsequent charge or other interest affects any Security Asset, the Finance Party may open a new account with the Chargor. | |
(b) | If the Finance Party does not open a new account, it will nevertheless be treated as if it had done so at the time when it received or was deemed to have received notice of that charge or other interest. |
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(c) | As from that time all payments made to the Finance Party will be credited or be treated as having been credited to the new account and will not operate to reduce any Secured Liability. | |
17.4 | Trustees Act | |
The Security Agent shall have all the powers and discretions conferred upon trustees by the Trustees Act provided that: |
(a) | where there are any inconsistencies between the Trustees Act and the provisions of this Security Document or any other Loan Document (each, a Relevant Document ), to the extent allowed by law the provisions of such Relevant Document shall prevail; | ||
(b) | any inconsistencies between the Trustees Act and the provisions of any Relevant Document shall constitute a restriction or exclusion under the Trustees Act; and | ||
(c) | Section 3A of the Trustees Act shall not apply to the duties of the Security Agent in relation to the trusts contained in this Security Document. The powers, duties and discretions conferred on the Security Agent by the provisions of this Security Document are by way of supplement to those conferred by the Trustees Act. |
18. | RELEASE | |
At the end of the Security Period, the Finance Parties must, at the request and cost of the Chargor, take whatever action is reasonably necessary to release its Security Assets from this Security. | ||
19. | EVIDENCE AND CALCULATIONS | |
19.1 | Accounts | |
Accounts maintained by a Finance Party in connection with this Security Document are prima facie evidence of the matters to which they relate for the purpose of any litigation or arbitration proceedings. | ||
19.2 | Certificates and determinations | |
Any certification or determination by a Finance Party of a rate or amount under the Loan Documents will be, in the absence of manifest error, conclusive evidence of the matters to which it relates. | ||
19.3 | Calculations | |
Any interest or fee accruing under this Security Document accrues from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or otherwise, depending on what the Security Agent determines is market practice. | ||
20. | NOTICES | |
20.1 | In writing | |
(a) | Any communication in connection with this Security Document must be in writing and, unless otherwise stated, may be given: |
(i) | in person, by post or fax; or | ||
(ii) | to the extent agreed by the Parties, by e-mail or other electronic communication. |
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(b) | For the purpose of this Security Document, an electronic communication will be treated as being in writing. | |
(c) | Unless it is agreed to the contrary, any consent or agreement required under this Security Document must be given in writing. | |
20.2 | Contact details | |
(a) | The contact details of the Chargor for all notices in connection with this Security Document are the same as those set out in Section 10.2 of the Credit Agreement for the Chargor. | |
(b) | The contact details of the Security Agent for all notices in connection with this Security Document are the same as those set out in Section 10.2 of the Credit Agreement for the Security Agent. | |
(c) | Any Party may change its contact details by giving five Business Days notice to the Security Agent or to the other Party. | |
(d) | Where the Security Agent nominates a particular department or officer to receive a notice, a notice will not be effective if it fails to specify that department or officer. | |
20.3 | Effectiveness | |
(a) | Except as provided below, any communication in connection with this Security Document will be deemed to be given as follows: |
(i) | if delivered in person, at the time of delivery; | ||
(ii) | if posted, five Business Days after being deposited in the post, postage prepaid, in a correctly addressed envelope; | ||
(iii) | if by fax, when received in legible form; and | ||
(iv) | if by e-mail or any other electronic communication, when received in legible form. |
(b) | A communication given under paragraph (a) above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place. | |
(c) | A communication to the Security Agent will only be effective on actual receipt by it. | |
21. | LANGUAGE | |
Any notice given in connection with this Security Document must be in English. | ||
22. | SEVERABILITY | |
If a term of this Security Document is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect: |
(a) | the legality, validity or enforceability in that jurisdiction of any other term of this Security Document; or | ||
(b) | the legality, validity or enforceability in any other jurisdiction of that or any other term of this Security Document. |
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23. | WAIVERS AND REMEDIES CUMULATIVE | |
The rights of each Finance Party under this Security Document: |
(a) | may be exercised as often as necessary; | ||
(b) | are cumulative and not exclusive of its rights under the general law; and | ||
(c) | may be waived only in writing and specifically. |
Delay in exercising or non-exercise of any right is not a waiver of that right. |
(i) | proceedings in any other court; and | ||
(ii) | concurrent proceedings in any number of jurisdictions. |
(d) | References in this Clause to a dispute in connection with this Security Document includes any dispute as to the existence, validity or termination of this Security Document. |
26.2 | Service of process | |
(a) | The Chargor irrevocably appoints the Subject Company as its agent under this Security Document for service of process in any proceedings before the Singapore courts in connection with this Security Document. | |
(b) | If any person appointed as process agent under this Clause is unable for any reason to so act, the Chargor must immediately (and in any event within three days of the event taking place) appoint another agent on terms acceptable to the Security Agent. Failing this, the Security Agent may appoint another process agent for this purpose. |
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(c) | The Chargor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings. | |
(d) | This Clause does not affect any other method of service allowed by law. | |
26.3 | Waiver of immunity | |
The Chargor irrevocably and unconditionally: |
(a) | agrees not to claim any immunity from proceedings brought by a Finance Party against it in relation to this Security Document and to ensure that no such claim is made on its behalf; | ||
(b) | consents generally to the giving of any relief or the issue of any process in connection with those proceedings; and | ||
(c) | waives all rights of immunity in respect of it or its assets. |
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Subject Company
|
Number of Shares | |||
|
||||
FIRST SOLAR FE HOLDINGS PTE. LTD.
|
66,000,000 |
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Chargor
FIRST SOLAR, INC. |
||||
By: | /s/ David Brady | |||
Name: | David Brady | |||
Title: | Corporate Treasurer |
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Security Agent
JPMORGAN CHASE BANK, N.A. |
||||
By: | /s/ R. Mark Chambers | |||
Name: | R. Mark Chambers | |||
Title: | Senior Vice President | |||
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1. | Mr. Christian Leisinger, born 26 April 1980, with business address at Hengeler Mueller, Bockenheimer Landstraße 24, 60323 Frankfurt/Main. | |
Deponent No. 1 stated that in the following he would not act for himself but in the name and on behalf of |
a) | FIRST SOLAR, INC. , a corporation organised under the laws of Delaware, United States of America, having its at business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America, | ||
acting based upon a power of attorney dated 17 August 2009 and a delegated power of attorney dated 4 September 2009, certified copies of which shall be attached hereto as appendices A.a.1 and A.a.2 | |||
b) | FIRST SOLAR HOLDINGS GMBH, a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 40090, | ||
acting based upon a power of attorney dated 17 August 2009 and a delegated power of attorney dated 4 September 2009, certified copies of which shall be attached hereto as appendices A.b.1 and A.b.2 . |
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Based upon an inspection as of 3 September of folio HRB 40090 of the commercial register at the local court (Amtsgericht) of Mainz, the acting notary hereby certifies in accordance with sec. 21 of the German Federal Ordinance for Notaries (Bundesnotarordnung) that Mr, David Brady, being an authorised signatory (Prokurist) of First Solar Holdings GmbH, is authorised to bind the company by his sole signature. |
2. | Mr. Jens Gölz, born 12 September 1978, with business address at Allen & Overy LLP, Taunustor 2, 60311 Taunustor 2. | |
Deponent No. 2 stated that in the following he would not act for himself but in the name and on behalf of | ||
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ, | ||
acting based upon a power of attorney dated 10 August 2009, a faxed copy of which is attached hereto as appendix B. |
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| that the pledge is a security instrument of strictly accessory nature (i.e. that it comes into legal existence only if, to the extent that, and as long as, the underlying secured claims do in fact exist, and that the owners of the secured claims and the pledgees must be identical); | |
| that if the underlying secured claims are novated this will cause the pledge to lapse by operation of law in relation to such novated claims; | |
| that the articles of association may impose restrictions on a transfer or pledge of shares; | |
| that there is no bona fide creation, acquisition nor ranking of a pledge of shares/interests (i.e. the pledgees are not protected if the shares purported to be pledged do not exist, have been previously transferred to a third party or have been previously encumbered for the benefit of a third party) if not otherwise provided for in sec. 16 para.3 German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaft mit beschränkter Haftung ) | |
| that the parties hereto are, by operation of law, jointly and severally liable with respect to the payment of all notarial fees, irrespective of any internal agreement passed in that respect. |
Page | ||||||
Clause | ||||||
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1.
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Interpretation | 1 | ||||
2.
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Pledge | 6 | ||||
3.
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Independent Pledges | 6 | ||||
4.
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Purpose of the Pledges | 6 | ||||
5.
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Dividends and other payment claims | 7 | ||||
6.
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Exercise of voting rights | 7 | ||||
7.
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Enforcement of the Pledges | 8 | ||||
8.
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No defences or recourse | 9 | ||||
9.
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Representations and warranties | 10 | ||||
10.
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Undertakings | 11 | ||||
11.
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Release | 12 | ||||
12.
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Indemnity | 13 | ||||
13.
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Duration and independence | 13 | ||||
14.
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Costs and expenses | 14 | ||||
15.
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Partial invalidity; Waiver | 14 | ||||
16.
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Amendments | 14 | ||||
17.
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Successors, assignments and transfers | 14 | ||||
18.
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Notices and their language | 15 | ||||
19.
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Applicable law; Jurisdiction | 15 | ||||
20.
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Notification | 15 | ||||
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Schedules | ||||||
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1.
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Original Lenders | 16 | ||||
2.
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Original Obligors | 17 | ||||
3.
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Addresses for notices | 18 |
(1) | FIRST SOLAR, INC. , a corporation organised under the laws of Delaware, United States of America, having its at business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America as pledgor | |
(the Pledgor ) | ||
on one side; and | ||
(2) | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ as administrative agent (the Administrative Agent ). |
(A) | The Original Lenders (as defined below) have agreed to make available to the Borrowers (as defined below) certain revolving credit facilities and certain letters of credit on the terms of and subject to the Credit Agreement (as defined below). | |
(B) | It is a condition to the Original Lenders (as defined below) making the credit facilities available to the Borrowers (as defined below) that the Pledgor enters into this Agreement. |
1. | INTERPRETATION | |
1.1 | Definitions | |
In this Agreement: | ||
Additional Domestic Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Domestic Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Foreign Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Additional Foreign Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Agent means: |
(a) | the Syndication Agent; | ||
(b) | the Documentation Agent; and |
(c) | the Administrative Agent. |
(a) | dividends, if any, payable on the Pledged Shares; | ||
(b) | liquidation proceeds ( Liquidationserlöse ), consideration for redemption ( Einziehungsentgelt ), repaid capital in case of a capital decrease ( Kapitalherabsetzung ), any compensation in case of termination ( Kündigung ) and/or withdrawal ( Austritt ) of a shareholder of the Pledged Company, the surplus in case of surrender ( Preisgabe ) and all other pecuniary claims associated with the Pledged Shares; and | ||
(c) | the right to subscribe for 66% of newly issued shares. |
(i) | by a person that already is a lender under the Credit Agreement (defined as increasing lender therein) after having accepted an increase of its revolving commitment; or | ||
(ii) | by an assuming lender becoming a new lender under the Credit Agreement (defined as assuming lender therein) after having signed a New Lender Supplement, |
(a) | the Guarantee and Collateral Agreement; and | ||
(b) | any other document evidencing or creating collateral over any asset of an Obligor to secure any obligation of an Obligor under or in connection with, inter alia , the Credit Agreement. |
1.2 | Where the context so admits, the singular includes the plural and vice versa. | |
1.3 | The headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. | |
1.4 | Any reference in this Agreement to a defined document is a reference to that defined document as amended, varied, supplemented or novated from time to time. | |
1.5 | Any reference to a Party or other person (including any Obligor and any Secured Party) includes its respective successor(s) in law (including any universal successor ( Gesamtrechtsnachfolger ) of that person by way of merger ( Verschmelzung ), any other reorganisation contemplated in the German Transformation Act ( Umwandlungsgesetz ) or |
otherwise) and any assign(s) and transferee(s) of that person and, to the extent legally possible, any legal provision to the contrary is waived. |
2. | PLEDGE | |
2.1 | Pledged Shares |
(a) | The Pledgor is at the date of this Agreement the sole shareholder of the Pledged Company. | ||
(b) | The total registered share capital ( Stammkapital ) of the Pledged Company amounts to EUR 25,000 (in words: twenty five thousand euro). As result of a shareholders resolution dated 3 August 2009, at present, there exist 25,000 shares (each having a nominal amount of EUR 1) in the Pledged Company. The shares carrying the numbers 2 to 16,501 amounting to EUR 16,500 (in words: sixteen thousand five hundred Euro) are hereinafter referred to as the Pledged Shares . The shares carrying the numbers 16,502 to 25,001 amounting to EUR 8,500 (in words: eight thousand five hundred Euro) are hereinafter referred to as the Remaining Shares . | ||
The Pledged Shares and the Remaining Shares are hereinafter referred to as the Shares . At present, there are no other shares in the Pledged Company. | |||
(c) | The Pledged Shares are fully paid up. As at the date hereof, there is no obligation for the Pledgor to make additional contributions to the Pledged Company. |
2.2 | Constitution of Pledge |
(a) | The Pledgor hereby pledges the Pledged Shares and any and all Ancillary Rights pertaining thereto to each of the Original Pledgees and to each Future Pledgee for their rateable and equally ranking interest as security. | ||
(b) | Each of the Original Pledgees hereby accepts the Pledges. In addition the Administrative Agent accepts the Pledges for and on behalf of each Future Pledgee hereunder as proxy without power of attorney ( Vertreter ohne Vertretungsmacht ). Each Future Pledgee ratifies and confirms such acceptance so made by the Administrative Agent on its behalf by accepting the transfer or assignment of any Secured Claim and/or by becoming a party to a Loan Document, thereby becoming a Pledgee. All Parties confirm that the validity of any of the Pledges constituted hereunder is not affected by the Administrative Agent acting as proxy without power of attorney for any Future Pledgee. For the avoidance of doubt, the Parties agree that nothing in this Agreement shall exclude a transfer of all or part of the Pledges by operation of law. |
3. | INDEPENDENT PLEDGES | |
The validity and effect of each of the Pledges shall be independent from the validity and the effect of any of the other Pledges created hereunder. The Pledges to each of the Pledgees shall be separate and individual pledges. Each of the Pledges shall rank pari passu to each other Pledge created hereunder. | ||
4. | PURPOSE OF THE PLEDGES | |
The Pledges are constituted in order to secure the full and irrevocable satisfaction and discharge of any and all Secured Claims. |
The Parties hereby expressly agree that the provisions of section 1210 para 1 sentence 2 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall not apply to this Agreement and the Pledges. |
5. | DIVIDENDS AND OTHER PAYMENT CLAIMS | |
5.1 | Entitlement to receive dividend payments and to exercise other Ancillary Rights | |
Notwithstanding that the dividends and the other Ancillary Rights are pledged pursuant to this Agreement, the Pledgor shall be entitled to (i) receive and retain all dividend payments and all other payments in respect of the Pledged Shares and (ii) receive, retain and exercise all other Ancillary Rights, unless an Event of Default has occurred, is continuing and the Administrative Agent would be entitled to enforce any of the Pledges pursuant to Clause 7 of this Agreement. | ||
5.2 | Pledgees rights | |
Notwithstanding Clause 5.1 (Entitlement to receive dividend payments) above: |
(a) | dividends paid or payable other than in cash and other property received, receivable or otherwise distributed in respect of or in exchange for the Pledged Shares; | ||
(b) | dividends or other distributions paid or payable in cash in respect of the Pledged Shares in connection with (i) the partial or total liquidation; (ii) dissolution; or (iii) in connection with the reduction of capital ( Kapitalherabsetzung ); and | ||
(c) | cash paid, payable or otherwise distributed in respect of principal of, or in redemption of, or in exchange for the Pledged Shares, |
shall be made available and shall forthwith be delivered to the Administrative Agent for itself and for the Pledgees to be held as security for the Secured Claims and shall, if received by the Pledgor, be received as holder for the Pledgees and segregated from the other property or funds of the Pledgor and be forthwith delivered to the Administrative Agent for itself and for the Pledgees as security for the Secured Claims in the same form as so received (with any necessary endorsement). Any further reaching obligations of the Pledged Company and/or the Pledgor in respect of the use of profits and/or dividends shall not be affected by this Clause 5.2. | ||
6. | EXERCISE OF VOTING RIGHTS | |
6.1 | Voting Rights | |
The voting rights resulting from the Pledged Shares remain with the Pledgor. The Pledgor, however, shall at all times until the full and irrevocable satisfaction and discharge of all Secured Claims or the release of the Pledges be required, in exercising its voting rights, to act in good faith to ensure that the existence, validity or enforceability of the Pledges is not adversely affected. | ||
6.2 | Impairment | |
The Pledgor shall not take, or participate in, any action which can be reasonably be expected to impair or to be for any other reason inconsistent with, the security interest of the Pledgees or the security purpose as described in Clause 4 (Purpose of the Pledges) hereof or to defeat, impair or circumvent the rights of the Pledgees hereunder. |
6.3 | Information by the Pledgor | |
The Pledgor shall inform the Administrative Agent promptly ( unverzüglich ) of all other actions concerning the Pledged Company which could be reasonably expected to materially adversely affect the Pledges (or any part thereof). In particular, the Pledgor shall notify the Administrative Agent forthwith of: |
(a) | any shareholders meeting at which a resolution is intended to be adopted which could have a material adverse effect upon the Pledges. In any event, the Pledgor shall procure that the Administrative Agent will upon request promptly ( unverzüglich ) receive, as soon as they are available, a copy of the convocation notice for such ordinary or extraordinary shareholders meeting setting forth the agenda and all applications and decisions to be taken, and the minutes of any such shareholders meeting; and | ||
(b) | any resolution which is intended to be adopted outside a shareholders meeting and which could have a material adverse effect upon the Pledges and provide to the Administrative Agent a draft of any such resolution. In any event, the Administrative Agent shall upon request promptly ( unverzüglich ) receive, as soon as it is available, a copy of any such resolution. |
7. | ENFORCEMENT OF THE PLEDGES | |
7.1 | Pledgees rights | |
(a) | At any time after the occurrence and during the continuation of an Event of Default if, in addition, the requirements set forth in sections 1273, 1204 et seq. of the German Civil Code ( Bürgerliches Gesetzbuch ) with regard to the enforcement of pledges are met ( Pfandreife ), the Pledgees (or any of them) acting through the Administrative Agent shall be entitled to enforce the Pledges (or any part thereof) by way of public auction ( öffentliche Versteigerung ) and/or in any other way permitted under German law, in all cases notwithstanding section 1277 of the German Civil Code without any enforceable judgment or other instrument ( vollstreckbarer Titel ). | |
(b) | The Pledgees (or any of them) acting through the Administrative Agent shall notify the Pledgor of the intention to realise the Pledges (or any part thereof) not less than 1 (one) week before the date on which the Pledges (or any such part thereof) are intended to be enforced. Such notice period is not necessary if (i) the Pledgor has generally ceased to make payments, (ii) an application for the commencement of insolvency proceedings over the assets of the Pledgor is filed (and not withdrawn) by the Pledgor or by any third person and, in the latter case, it is not without delay established to the satisfaction of the Pledgees that the application is obviously frivolous or (iii) the observance of such notice period can reasonably be expected to adversely affect the enforceability of the Pledges (or any part thereof). The Pledgor hereby expressly agrees that 1 (one) weeks prior written notice to it of the place and time of any public auction held in accordance with Clause 7.1 (a) (Pledgees rights) above shall be sufficient. Such public auction may be held at any place in the Federal Republic of Germany which will be determined by the Administrative Agent. | |
(c) | If the Administrative Agent seeks to enforce the Pledges (or any part thereof) pursuant to, and in accordance with Clause 7.1(a) (Pledgees Rights) above, the Pledgor shall, at its own expense, render forthwith all assistance necessary in order to facilitate the prompt realisation of the Pledged Shares (or any of them) and/or the exercise by the Pledgees (or any of them) acting through the Administrative Agent of any other right a Pledgee may have pursuant to this Agreement or statutory German law. |
(d) | In case of an enforcement of the Pledges or if the Pledgor pays or repays any of the Secured Claims owed by any other Obligor, section 1225 of the German Civil Code ( Bürgerliches Gesetzbuch ) (Legal subrogation of claims to a pledgor ( Forderungsübergang auf den Verpfänder )) shall not apply and no rights or claims of the Pledgees shall pass to the Pledgor until the full and irrevocable satisfaction and discharge of all Secured Claims. | |
(e) | The Pledgees (or any of them) acting through Administrative Agent may determine which part of the Security, if applicable, shall be used to satisfy the Secured Claims. |
7.2 | Dividends | |
Provided that the requirements for enforcement referred to under Clause 7.1(a) (Pledgees Rights) above are met and an enforcement notice has been served in accordance with Clause 7.1 (b), all dividends and all other payments based on similar ancillary rights attributed to the Pledged Shares may be applied by the Pledgees in satisfaction in whole or in part of the Secured Claims notwithstanding a Pledgees right to treat such payments as additional collateral. Any such payments which are made to the Pledgor after the time the Pledges have become enforceable must be paid to the Administrative Agent. | ||
7.3 | Voting rights | |
Even if the requirements for enforcement referred to under Clause 7.1(a) (Pledgees Rights) above are met, the Administrative Agent shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the Pledged Shares for itself or on behalf of any of the Pledgees. However, the Pledgor shall, upon the occurrence of an event which gives the Pledgees the right to enforce the Pledges (or any part thereof) pursuant to Clause 7.1, have the obligations and the Pledgees shall have the rights set forth in Clause 6.3 (Information by the Pledgor) of this Agreement regardless of which resolutions are intended to be adopted. | ||
7.4 | Application of proceeds | |
(a) | The proceeds resulting from the enforcement of the Pledges (or any part thereof) shall be applied by the Administrative Agent towards the satisfaction of the Secured Claims. | |
(b) | Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgees shall be entitled to treat all enforcement proceeds, held by the Administrative Agent separate from its assets on a separate trust account for the benefit of the Secured Parties and after the full and irrevocable satisfaction and discharge for the benefit of the Pledgor, as additional collateral for the Secured Claims, notwithstanding their right to seek satisfaction from such proceeds at any time. | |
(c) | After the full and irrevocable satisfaction and discharge of all Secured Claims any remaining proceeds resulting from the enforcement of the Pledges (or any part thereof) shall be transferred to the Pledgor at the cost and expense of the Pledgor. |
8. | NO DEFENCES OR RECOURSE | |
8.1 | The Pledgor hereby waives any rights of revocation ( Anfechtbarkeit ) and set-off ( Aufrechenbarkeit ) it may have pursuant to sections 1211 and 770(1) and (2) of the German Civil Code ( Bürgerliches Gesetzbuch ) save to the extent that the relevant Secured Claims can be discharged by way of set off against counterclaims which are undisputed ( unbestritten ) or ascertained by unappealable judgment ( rechtskräftig festgestellt ) and any defence of failure to pursue remedies ( Einrede der Vorausklage ) it may have. | |
8.2 | To the extent legally possible, the Pledgor hereby expressly waives the defences exercisable by it pursuant to section 1211 para. 1 sentence 1 alternative 1 of the German Civil Code ( Bürgerliches Gesetzbuch ) which the principal debtor of any Secured Claim has against any Secured Claim ( Einreden des Hauptschuldners ). | |
8.3 | In addition to Clause 7. 1(d) (Pledgees rights) of this Agreement, the Parties hereby agree that until the full and irrevocable satisfaction and discharge of all Secured Claims no rights and claims shall pass to or otherwise arise for the benefit of the Pledgor by subrogation ( gesetzlicher Übergang von Forderungen und Rechten ) or otherwise, including any recourse claims, indemnification claims, claims arising from unjust enrichment ( ungerechtfertigte Bereicherung ) and any right to demand the assignment and/or transfer of any Secured Claim and/or Security, against any Obligor, grantor of Security or Secured Party (as the case may be) which it may (but for this Clause 8) acquire as a result of: |
(i) | a payment or repayment by the Pledgor of any debt of any other Obligor under any of the Loan Documents; or | ||
(ii) | in case of enforcement of the Pledges (or any part thereof). |
Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgor furthermore undertakes not to exercise ( pactum de non petendo ), and not to purport to exercise, any such rights and claims which may pass to it or otherwise arise for its benefit notwithstanding this Clause 8 or would pass to it or otherwise arise for its benefit but for this Clause 8. | ||
The provisions under this Clause 8.3 shall not apply with regard to a recourse claim, if the parties agreed to allow such recourse of the Pledgor against any of the other Parties thereby taking at all times into account the terms of the Credit Agreement and any other Loan Document. | ||
9. | REPRESENTATIONS AND WARRANTIES | |
The Pledgor represents and warrants ( selbständiges Garantieversprechen im Sinne von § 311 Bürgerliches Gesetzbuch ) to the Pledgees that on the date of this Agreement: |
(a) | the Pledged Company is validly existing and is neither: |
(i) | unable to pay its debts when they fall due ( zahlungsunfähig ) within the meaning of section 17 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(ii) | in a state of imminent inability to pay its debts when they fall due ( drohende Zahlungsunfähigkeit ) within the meaning of section 18 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iii) | over-indebted ( überschuldet ) within the meaning of section 19 of the German Insolvency Code ( Insolvenzordnung ); nor |
(iv) | subject to any insolvency proceedings ( Insolvenzverfahren ) (or other or similar proceedings under the laws of any other applicable jurisdiction) or any refusal of opening insolvency proceedings for insufficiency of assets ( Abweisung mangels Masse ) (within the meaning of section 26 of the German Insolvency Code ( Insolvenzordnung )); |
(b) | the Shares are the only shares ( Geschäftsanteile ) in the Pledged Company in existence at the date hereof; | ||
(c) | the Pledgor is not subject to any restriction of any kind with regard to the transfer of, or the granting of a pledge in, or any other disposal of, the Pledged Shares, or with regard to the right to receive dividends on the Pledged Shares; | ||
(d) | the Pledgor is the sole legal and beneficial owner of the Pledged Shares and the Pledged Shares have not been transferred to or encumbered for the benefit of any third person and are not subject to any other rights of third parties (including, but not limited to, any pre-emption rights of third parties for shares in the Pledged Company); | ||
(e) | the Plegor is entitled to participate in the dividends of the Pledged Company free of any and all in-rem rights of others; | ||
(f) | the Shares are fully paid and there is no obligation for a shareholder to make additional contributions ( keine Nachschusspflicht ); and | ||
(g) | no litigation, arbitration or administrative proceedings, which could reasonably be expected to have a material adverse effect, are presently in progress, pending or threatened which restrain, or threaten to restrain, the Pledgor in respect of the entry into, the performance of, or compliance with, any of its obligations pursuant to this Agreement. |
10. | UNDERTAKINGS | |
10.1 | General undertakings | |
The Pledgor undertakes: |
(a) | if any amount in excess of US$100,000 payable or security transferrable under or in connection with this Agreement shall be or become evidenced by any authorisation, approval, licence and consent such authorisation, approval, licence and consent shall be promptly delivered to the Administrative Agent, duly indorsed in a manner satisfactory to the Administrative Agent; | ||
(b) | to maintain the security interest created by this Agreement as a perfected security interest and to defend such security interest against the claims and demands of all persons whomsoever subject to the rights of the Pledgor under the Loan Documents to dispose of the Pledged Shares; | ||
(c) | at any time and from time to time, upon the written request of the Administrative Agent and at the sole expense of such Plegor, to promptly ( unverzüglich ) and duly execute and deliver, and have recorded such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, execute one or more collateral agreements (including assignments and |
releases) to obtain or preserve the security interest created by this Agreement in favour of the Administrative Agent and the other Secured Parties |
(d) | to notify the Administrative Agent promptly ( unverzüglich ) of any change in the shareholding in the Pledged Company or of any change in the shareholders agreement ( Gesellschaftsvertrag ); | ||
(e) | to inform the Administrative Agent promptly ( unverzüglich ) of any attachments ( Pfändung ) regarding the Shares or any other measures which can reasonably be expected to impair or jeopardise the Pledgees rights relating to the Pledged Shares. In the event of an attachment, the Pledgor undertakes to forward to the Administrative Agent promptly ( unverzüglich ) a copy of the attachment order ( Pfändungsbeschluss ), any third party debt order ( Überweisungsbeschluss ) and all other documents necessary for a defence against the attachment. The Pledgor shall inform the attaching creditor promptly ( unverzüglich ) about the Pledgees security interests; | ||
(f) | if and to the extent the Pledged Shares are not fully paid up at the date hereof, to fully pay up the Pledged Shares promptly ( unverzüglich ) upon the execution of this Agreement and to procure that there will be no obligation for a shareholder to make additional contributions; | ||
(g) | not to create or permit to subsist any encumbrance over all or any of the Pledged Shares or any interest therein or otherwise sell, transfer or dispose of the whole or any part of the Pledged Shares or any interest therein; | ||
(h) | to refrain from any acts or omissions which can reasonably be expected have an adverse effect on the validity or enforceability of the Pledges (or any part thereof); and | ||
(i) | with regard to any and all shares in the capital of the Pledged Company issued in addition to the Shares in what ever nominal value which the Pledgor may acquire or receive otherwise in future in the event of an increase of the capital of the Pledged Company or otherwise: |
(i) | to inform the Administrative Agent of the intention to either raise additional capital by increasing its capital ( Kapitalerhöhung ) or acquire or receive additional capital otherwise; | ||
(ii) | after prior written consent of the Administrative Agent to such increase, to only give effect to such increase of (acquire or receive) the capital by dividing the aggregate new capital into shares, such that 66% of the new capital and of 34% of the new capital can be pledged separately (such as in two shares one which represents 66%of the new capital an another one representing the remaining 34% of the new capital); and | ||
(iii) | to pledge the new share(s) corresponding to 66% of the new capital within five (5) Business Days in favour of the Pledgee substantially under the same terms and conditions as agreed to in this Agreement. |
(j) | to file within five (5) Business Days the new list of shareholders representing the split of the shares in 25,000 different shares with the nominal amount of EUR 1 each with the competent commercial register. |
10.2
Pledge over all Shares
The Administrative Agent may at all times for itself and for the other Pledgees request to
hold a pledge over all Pledged Shares held by the Pledgor (in particular, without
limitation, in the case of a merger or conversion an equivalent security interest over the
shares or interests in the surviving or, as the case may be, the new company) in accordance
with all terms of this Agreement and the agreement on or about the date of this Agreement
pursuant to which the Remaining Share is pledged.
11.
RELEASE
11.1
Confirmation
After the full and irrevocable satisfaction and discharge of all Secured Claims the
Administrative Agent shall confirm in writing to the Pledgor upon the Pledgors request that
the Pledges have ceased to exist and/or, as applicable, the release of the Pledges
(
Pfandaufgabe
), at the cost and expense of the Pledgor (if any).
11.2
Release of Security
Even prior to the full and irrevocable satisfaction and discharge of all Secured Claims, the
Pledgees are obliged to release upon the Pledgors request, and at the Pledgors cost and
expense, all or part of the Security insofar as the realisable value of the Security
exceeds, not only temporarily, the Secured Claims by more than 10%. The Administrative Agent
may, at its discretion, determine which part of
the Security shall be released but shall reasonably take into account the legitimate
interest of the Pledgor and the Pledged Company.
12.
INDEMNITY
12.1
Liability for Damages
Neither the Administrative Agent nor any of the other Pledgees shall be liable for any loss
or damage suffered by the Pledgor save in respect of such loss or damage which is suffered
as a result of the gross negligence (
grobe Fahrlässigkeit
) or wilful misconduct (
Vorsatz
) of
the Administrative Agent or any of the other Pledgees.
12.2
Indemnification
The Pledgor shall indemnify and hold the Administrative Agent and each of the other Pledgees
harmless and keep them indemnified from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever arising out of the execution, delivery, enforcement,
performance and administration of this Agreement, which may be incurred by or made against
the Administrative Agent and/or any of the other Pledgees for anything done or omitted in
the exercise or purported exercise of the powers contained in this Agreement,
provided
, that the Pledgor shall have no obligation hereunder to the extent that
such liabilities, obligations, losses, damages, penalties, actions, judgments suits, costs,
expenses or disbursements of any kind or nature whatsoever arising out of the execution,
delivery, enforcement, performance and administration of this Agreement are incurred by or
made against the Administrative Agent or any of the other Pledgees as a result of the gross
negligence (
grobe Fahrlässigkeit
) or wilful misconduct (
Vorsatz
) of the Administrative Agent
or any of the other Pledgees.
Any reference in this paragraph to the Administrative Agent and/or the other Pledgees
includes any officer, director, employee, agent, advisor (including any attorney) or other
person appointed by the
Administrative Agent or any other Pledgee in accordance with the provisions of this Agreement and the other Loan Documents. |
13. | DURATION AND INDEPENDENCE | |
13.1 | Duration | |
This Agreement shall remain in full force and effect until the full and irrevocable satisfaction and discharge of the Secured Claims. The Pledges shall not cease to exist if any payments made in satisfaction of the Secured Claims have only temporarily discharged the Secured Claims. | ||
13.2 | Continuing Security | |
This Agreement shall create a continuing Security and no change or amendment whatsoever in any Loan Document or in any document or agreement related to it shall affect the validity or limit the scope of this Agreement or the obligations which are imposed on the Pledgor pursuant to it. | ||
The Pledgor hereby agrees that the Pledges shall not be affected by any assumption of liability ( Schuldübernahme ) in relation to any of the Secured Claims and hereby expressly consents ( willigt ein ) to any such transfer and/or assumption of liability within the meaning of section 418 para. 1 sentence 3 of the German Civil Code ( Bürgerliches Gesetzbuch ) (including when applied by analogy). |
13.3 | Independence | |
This Agreement and the Pledges are independent from all other security interests or guarantees which may have been or will be given to the Administrative Agent and/or any of the other Secured Parties with respect to any obligation of the Obligors (or any of them). None of such other security interests or guarantees shall in any way prejudice, or be prejudiced by, this Agreement or the Pledges. | ||
14. | COSTS AND EXPENSES | |
The Pledgor shall promptly ( unverzüglich ) pay or reimburse each Pledgee the amount of any and all costs, charges, fees and expenses (including fees for legal advisers) incurred by it in connection with the enforcement or preservation of any rights under this Agreement or any waiver in relation thereto, together in each case with any applicable value added tax or other taxes. Any notarial fees and expenses incurred in connection with this Agreement shall be borne by the Pledgor. | ||
15. | PARTIAL INVALIDITY; WAIVER | |
15.1 | Invalidity | |
If any provision of this Agreement or part thereof should be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions hereof. The invalid or unenforceable provision shall be replaced by that provision which best meets the intent of the replaced provision. This shall apply analogously with respect to anything which is accidentally not regulated in this Agreement ( Vertragslücke ). § 139 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall be waived hereby. | ||
In particular the Pledges shall not be affected and shall in any event extend to any and all of the Pledged Shares held by the Pledgor in the Pledged Company even if the number or nominal value of |
the Shares, the Pledged Shares or the aggregate liable capital of the Pledged Company as stated in Clause 2.1(b) (Pledged Shares) are inaccurate and deviate from the actual facts. |
15.2 | Waiver | |
No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent or the other Pledgees (or any of them), any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies provided hereunder are cumulative and not exclusive of any rights or remedies provided by law. | ||
16. | AMENDMENTS | |
Changes to and amendments of this Agreement including this Clause 16 must be made in writing. | ||
17. | SUCCESSORS, ASSIGNMENTS AND TRANSFERS | |
This Agreement shall be binding upon the Parties hereto and, to the extent legally possible, their respective successor(s) in law. Each Pledgee shall, to the extent legally possible, be entitled to assign or otherwise transfer (i) any and all of its rights and (ii) (only with regard to any person which becomes a lender or an administrative agent under the Credit Agreement after the date of this Agreement) any and all of its duties pursuant to this Agreement to third parties. The Pledgor is entitled to any such transfer with the prior written consent of the Pledgees (acting through the Administrative Agent, as the case may be) only. |
18. | NOTICES AND THEIR LANGUAGE | |
18.1 | Notices | |
Any notice or other communication under or in connection with this Agreement to the Pledgor or the Administrative Agent and/or any of the other Pledgees shall be in writing (unless notarisation is required) and shall be delivered personally, by post, email or fax and shall be sent to the address, email address or fax number of the party, and for the attention of the individual or department, as set forth in Schedule 3 hereto or such other address, email address or fax number as is notified in writing by that Party for this purpose to the Facility Agent, the Administrative Agent or, as the case may be, the Pledgor, from time to time. | ||
18.2 | Language | |
Save for the notice pursuant to section 1280 of the German Civil Code ( Bürgerliches Gesetzbuch ) and unless otherwise required by statutory German law or unless otherwise agreed in writing from time to time, any notice or other communication under or in connection with this Agreement shall be made in the English language or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail (unless the document is a statutory or other official document), except that where a German translation of a legal term appears in such text, the German translation shall prevail. | ||
19. | APPLICABLE LAW; JURISDICTION | |
19.1 | Governing Law | |
This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. |
19.2
Jurisdiction
The place of jurisdiction for all Parties shall be Frankfurt am Main, Federal Republic of
Germany. The Administrative Agent and the other Pledgees, however, shall also be entitled to
take legal action against the Pledgor before any other competent court of law having
jurisdiction over the Pledgor or any of its assets.
20.
NOTIFICATION
The Pledgor and the Pledgees hereby instruct and the Pledgor authorises the undersigned
Notary Public to notify the Pledged Company in the Pledgors name of the Pledges by means of
forwarding a certified copy of this Agreement to the Pledged Company by registered mail
(return receipt requested).
First Solar, Inc.
350 West Washington Street, Suite 600
Tempe, Arizona 85281
Attn.: Anja Lange
Fax: +49(0)6131-1443-500
Email: alange@firstsolar.com
JPMorgan Chase Bank, N.A.
10 South Dearborn, 7
th
Floor
Chicago, IL 60603
Attention: Creston Wren
Telecopy: 001 (312) 385-7097
Telephone: 001 (312) 385-7016
JPMorgan Chase Bank, N.A.
125 London Wall
London
EC2Y 5AJ
Attention: Lucy Chick
Telecopy: +44(0)20 7325 6835
Telephone: +44(0)20 7325 6926
JPMorgan Chase Bank, N.A.
201 North Central Avenue, Floor
21Phoenix, AZ 85004
Attention: Mark Chambers
Telecopy: 001 (602) 221-1502
Telephone: 001 (602) 221-2290
First Solar Holdings GmbH
Rheinstr. 4B
55116 Mainz
Germany
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Attn.: Anja Lange | |
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David Brady
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Fax: +49(0)6131-1443-500 | |
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+1-602-414-9462
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Email: alange@firstsolar.com | |
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dbrady@firstsolar.com
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Clause | ||||||
1.
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Interpretation | 1 | ||||
2.
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Pledge | 6 | ||||
3.
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Independent Pledges | 6 | ||||
4.
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Purpose of the Pledges | 6 | ||||
5.
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Dividends and other payment claims | 7 | ||||
6.
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Exercise of voting rights | 7 | ||||
7.
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Enforcement of the Pledges | 8 | ||||
8.
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No defences or recourse | 9 | ||||
9.
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Representations and warranties | 10 | ||||
10.
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Undertakings | 11 | ||||
11.
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Release | 12 | ||||
12.
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Indemnity | 13 | ||||
13.
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Duration and independence | 13 | ||||
14.
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Costs and expenses | 14 | ||||
15.
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Partial invalidity; Waiver | 14 | ||||
16.
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Amendments | 15 | ||||
17.
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Successors, assignments and transfers | 15 | ||||
18.
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Notices and their language | 15 | ||||
19.
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Applicable law; Jurisdiction | 15 | ||||
20.
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Notification | 15 | ||||
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Schedules | ||||||
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1.
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Original Lenders | 17 | ||||
2.
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Original Obligors | 18 | ||||
3.
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Addresses for notices | 19 |
(1) | FIRST SOLAR, INC. , a corporation organised under the laws of Delaware, United States of America, having its at business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America as pledgor | |
(the Pledgor ) | ||
on one side; and | ||
(2) | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ as administrative agent (the Administrative Agent ). |
(A) | The Original Lenders (as defined below) have agreed to make available to the Borrowers (as defined below) certain revolving credit facilities and certain letters of credit on the terms of and subject to the Credit Agreement (as defined below). | |
(B) | It is a condition to the Original Lenders (as defined below) making the credit facilities available to the Borrowers (as defined below) that the Pledgor enters into this Agreement. |
1. | INTERPRETATION | |
1.1 | Definitions | |
In this Agreement: | ||
Additional Domestic Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Domestic Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Foreign Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Additional Foreign Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Agent means: |
(a) | the Syndication Agent; | ||
(b) | the Documentation Agent; and |
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(c) | the Administrative Agent. |
Ancillary Rights means: |
(a) | dividends, if any, payable on the Pledged Shares; | ||
(b) | liquidation proceeds ( Liquidationserlöse ), consideration for redemption ( Einziehungsentgelt ), repaid capital in case of a capital decrease ( Kapitalherabsetzung ), any compensation in case of termination ( Kündigung ) and/or withdrawal ( Austritt ) of a shareholder of the Pledged Company, the surplus in case of surrender ( Preisgabe ) and all other pecuniary claims associated with the Pledged Shares; and | ||
(c) | the right to subscribe for 34% of newly issued shares. |
Assignment and Assumption Agreement means the assignment and assumption agreement, pursuant to which a Lender as assignor sells and assigns to a person as assignee , inter alia , any or all of the assignors rights and obligations in its capacity as a lender under the Credit Agreement. | ||
Borrower means any Domestic Borrower and any Foreign Borrower. | ||
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main, Germany. | ||
Company means First Solar, Inc., a corporation organised under the laws of Delaware, United States of America, having its business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America. | ||
Credit Agreement means the New York law governed credit agreement dated on or about the date of this Agreement between the Company and the Original Foreign Borrowers on one side and, inter alia, the Administrative Agent and the Original Lenders together with each New Lender Supplement, and Assignment and Assumption Agreement relating thereto and any and each other agreement or instrument amending, modifying, extending, restating or supplementing it from time to time providing for an approximately $300,000,000 facility and an up to $100,000,000 Incremental Facility. | ||
Documentation Agent means The Royal Bank of Scotland plc. | ||
Dollar or $ means the lawful currency of the United States of America. | ||
Domestic Borrower means the Company and any Additional Domestic Borrower. | ||
Domestic Guarantor means any Original Domestic Guarantor and any Additional Domestic Guarantor. | ||
Euro, EUR or means the single currency of the participating member states of the European Union. | ||
Event of Default means an event (i) in which the commitments under the Credit Agreement will automatically immediately terminate and the amounts outstanding are immediately due and payable (ii) which would entitle the Administrative Agent (A) to, inter alia, prematurely terminate all or part of the total commitments under the Credit Agreement and/or (B) to declare that all or part of the amounts outstanding under the Credit Agreement are immediately due and payable or payable on |
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demand provided that any requirement for the giving of notice, the lapse of time or both has been satisfied. |
Foreign Borrower means any Original Foreign Borrower and any Additional Foreign Borrower. | ||
Foreign Guarantor means any Original Foreign Guarantor and any Additional Foreign Guarantor. | ||
Future Pledgee means any person or entity replacing the Administrative Agent in its function as administrative agent under the Credit Agreement. | ||
German Borrower means First Solar Manufacturing GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which becomes a borrower under the Credit Agreement after the date of the Credit Agreement. | ||
German Guarantor means First Solar GmbH and First Solar Holdings GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which is required to provide for a guarantee in connection with the Loan Documents after the date of the Credit Agreement. | ||
Group means the Company and its Subsidiaries from time to time. | ||
Guarantee and Collateral Agreement means the guarantee and collateral agreement dated on or about the date of this Agreement made between, inter alia , First Solar, Inc. and certain of its Subsidiaries in favour of the Administrative Agent which will be attached as Exhibit A to the Credit Agreement. | ||
Guarantor means any Domestic Guarantor and any Foreign Guarantor. | ||
Incremental Facility means any additional revolving loan provided either |
(i) | by a person that already is a lender under the Credit Agreement (defined as increasing lender therein) after having accepted an increase of its revolving commitment; or | ||
(ii) | by an assuming lender becoming a new lender under the Credit Agreement (defined as assuming lender therein) after having signed a New Lender Supplement, |
provided that the aggregate amount of the aggregate revolving loans will in no event exceed $400,000,000. | ||
Issuing Lender means the Original Issuing Lender and any other lender that has agreed in its sole discretion to issue a letter of credit to any Borrower or any other borrowing Subsidiary in connection with the Credit Agreement. | ||
Lender means an Original Lender and any person which becomes a lender under the Credit Agreement, including without limitation an assuming lender of an Incremental Facility, after the date of this Agreement, unless, in each case, such person has ceased to be a lender under the Credit Agreement. | ||
Letter of Credit means any letter of credit issued or to be issued under the Credit Agreement, as such letter of credit may be amended, modified, restated, extended, renewed, increased, replaced or supplemented from time to time. | ||
Loan Document means |
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New Lender Supplement means a supplement to the Credit Agreement pursuant to which an assuming lender will become a party to the Credit Agreement with a revolving commitment in an amount agreed by such assuming lender. | ||
Note means any promissory note evidencing loans in accordance with the terms of the Credit Agreement, that may be amended, modified, supplemented, extended, renewed or replaced from time to time. | ||
Obligor means a Borrower and/or a Guarantor. | ||
Original Domestic Guarantors means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Domestic Guarantors. | ||
Original Foreign Borrower means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Borrowers. | ||
Original Foreign Guarantor means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Guarantors. | ||
Original Issuing Lender means JPMorgan Chase Bank, N.A. | ||
Original Lender means each of the financial institutions set out in Schedule 1 hereto in its capacity as original lender to the Company and the Original Foreign Borrowers. | ||
Original Pledgees means the Administrative Agent. | ||
Parties means the Pledgor, the Administrative Agent and the Pledgees. | ||
Person means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, any governmental authority or other entity of whatever nature. | ||
Pledged Company means First Solar Holdings GmbH, a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 40090. | ||
Pledges means any and all pledges constituted pursuant to Clause 2.2 (a) of this Agreement. | ||
Pledgees means the Administrative Agent and any Future Pledgee. | ||
Pledged Shares shall have the meaning ascribed to it in Clause 2.1 (b) below. | ||
Remaining Share shall have the meaning ascribed to it in Clause 2.1 (b) below. |
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Secured Claims means all present and future rights and claims ( Ansprüche ) (whether actual or contingent and whether owned jointly or severally or in any other capacity whatsoever) (including claims from unjust enrichment ( ungerechtfertige Bereicherung ) and tort ( Delikt )) of any of the Secured Parties against any German Borrower and any German Guarantor under or in connection with the Loan Documents (or any of them) or any Letter of Credit, each as amended, varied, supplemented or novated from time to time, including without limitation, any increase of principal or interest, in each case together with all interest, costs, charges and expenses incurred by any Secured Party in connection with the protection and preservation or enforcement of its respective rights under the Loan Documents or any Letter of Credit. | ||
Secured Party means an Agent, the Lenders and any affiliate of any Lender to which any obligations under any Loan Document or under any Specified Swap Agreements are owed by any member of the Group, any Issuing Lender and any Swap Counterparty. | ||
Security means any and all collateral granted with a view to securing the Secured Claims. | ||
Security Document means |
(a) | the Guarantee and Collateral Agreement; and | ||
(b) | any other document evidencing or creating collateral over any asset of an Obligor to secure any obligation of an Obligor under or in connection with, inter alia , the Credit Agreement. |
Shares means the shares in the Pledged Company as set forth in Clause 2.1(b) (Pledged Shares) hereof. | ||
Specified Swap Agreement means any Swap Agreement entered into by the Company or any Guarantor and any lender or any affiliate of a lender in connection with the Credit Agreement. | ||
Subsidiary means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. And unless otherwise qualified, all references to a Subsidiary or to Subsidiaries in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.an entity of which a person owns directly or indirectly more than 50 percent (50%) of the voting capital or similar right of ownership. | ||
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; except for any phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any of its Subsidiaries. | ||
Swap Counterparty means any person or entity providing a Specified Swap Agreement. | ||
Syndication Agent means Credit Suisse, Cayman Islands Branch. | ||
1.2 | Where the context so admits, the singular includes the plural and vice versa. |
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1.3 | The headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. | |
1.4 | Any reference in this Agreement to a defined document is a reference to that defined document as amended, varied, supplemented or novated from time to time. | |
1.5 | Any reference to a Party or other person (including any Obligor and any Secured Party) includes its respective successor(s) in law (including any universal successor ( Gesamtrechtsnachfolger ) of that person by way of merger ( Verschmelzung ), any other reorganisation contemplated in the German Transformation Act ( Umwandlungsgesetz ) or otherwise) and any assign(s) and transferee(s) of that person and, to the extent legally possible, any legal provision to the contrary is waived. | |
2. | PLEDGE | |
2.1 | Pledged Shares |
(a) | The Pledgor is at the date of this Agreement the sole shareholder of the Pledged Company. | ||
(b) | The total registered share capital ( Stammkapital ) of the Pledged Company amounts to EUR 25,000 (in words: twenty five thousand euro). As result of a shareholders resolution dated 3 August 2009, at present, there exist 25,000 shares (each having a nominal amount of EUR 1) in the Pledged Company. The shares carrying the numbers 16,502 to 25,001 amounting to EUR 8,500 (in words: eight thousand five hundred Euro) are hereinafter referred to as the Pledged Shares . The shares carrying the numbers 2 to 16,501 amounting to EUR 16,500 (in words: sixteen thousand five hundred Euro) are hereinafter referred to as the Remaining Shares . | ||
The Pledged Shares and the Remaining Shares are hereinafter referred to as the Shares . At present, there are no other shares in the Pledged Company. | |||
(c) | The Pledged Shares are fully paid up. As at the date hereof, there is no obligation for the Pledgor to make additional contributions to the Pledged Company. |
2.2 | Constitution of Pledge |
(a) | The Pledgor hereby pledges the Pledged Shares and any and all Ancillary Rights pertaining thereto to each of the Original Pledgees and to each Future Pledgee for their rateable and equally ranking interest as security. | ||
(b) | Each of the Original Pledgees hereby accepts the Pledges. In addition the Administrative Agent accepts the Pledges for and on behalf of each Future Pledgee hereunder as proxy without power of attorney ( Vertreter ohne Vertretungsmacht ). Each Future Pledgee ratifies and confirms such acceptance so made by the Administrative Agent on its behalf by accepting the transfer or assignment of any Secured Claim and/or by becoming a party to a Loan Document, thereby becoming a Pledgee. All Parties confirm that the validity of any of the Pledges constituted hereunder is not affected by the Administrative Agent acting as proxy without power of attorney for any Future Pledgee. For the avoidance of doubt, the Parties agree that nothing in this Agreement shall exclude a transfer of all or part of the Pledges by operation of law. |
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3. | INDEPENDENT PLEDGES | |
The validity and effect of each of the Pledges shall be independent from the validity and the effect of any of the other Pledges created hereunder. The Pledges to each of the Pledgees shall be separate and individual pledges. Each of the Pledges shall rank pari passu to each other Pledge created hereunder. | ||
4. | PURPOSE OF THE PLEDGES | |
The Pledges are constituted in order to secure the full and irrevocable satisfaction and discharge of any and all Secured Claims. | ||
The Parties hereby expressly agree that the provisions of section 1210 para 1 sentence 2 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall not apply to this Agreement and the Pledges. | ||
5. | DIVIDENDS AND OTHER PAYMENT CLAIMS | |
5.1 | Entitlement to receive dividend payments and to exercise other Ancillary Rights | |
Notwithstanding that the dividends and the other Ancillary Rights are pledged pursuant to this Agreement, the Pledgor shall be entitled to (i) receive and retain all dividend payments and all other payments in respect of the Pledged Shares and (ii) receive, retain and exercise all other Ancillary Rights, unless an Event of Default has occurred, is continuing and the Administrative Agent would be entitled to enforce any of the Pledges pursuant to Clause 7 of this Agreement. | ||
5.2 | Pledgees rights | |
Notwithstanding Clause 5.1 (Entitlement to receive dividend payments) above: |
(a) | dividends paid or payable other than in cash and other property received, receivable or otherwise distributed in respect of or in exchange for the Pledged Shares; | ||
(b) | dividends or other distributions paid or payable in cash in respect of the Pledged Shares in connection with (i) the partial or total liquidation; (ii) dissolution; or (iii) in connection with the reduction of capital ( Kapitalherabsetzung ); and | ||
(c) | cash paid, payable or otherwise distributed in respect of principal of, or in redemption of, or in exchange for the Pledged Shares, |
shall be made available and shall forthwith be delivered to the Administrative Agent for itself and for the Pledgees to be held as security for the Secured Claims and shall, if received by the Pledgor, be received as holder for the Pledgees and segregated from the other property or funds of the Pledgor and be forthwith delivered to the Administrative Agent for itself and for the Pledgees as security for the Secured Claims in the same form as so received (with any necessary endorsement). Any further reaching obligations of the Pledged Company and/or the Pledgor in respect of the use of profits and/or dividends shall not be affected by this Clause 5.2. | ||
6. | EXERCISE OF VOTING RIGHTS | |
6.1 | Voting Rights | |
The voting rights resulting from the Pledged Shares remain with the Pledgor. The Pledgor, however, shall at all times until the full and irrevocable satisfaction and discharge of all Secured Claims or the release of the Pledges be required, in exercising its voting rights, to act in good faith to ensure that the existence, validity or enforceability of the Pledges is not adversely affected. |
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6.2 | Impairment | |
The Pledgor shall not take, or participate in, any action which can be reasonably be expected to impair or to be for any other reason inconsistent with, the security interest of the Pledgees or the security purpose as described in Clause 4 (Purpose of the Pledges) hereof or to defeat, impair or circumvent the rights of the Pledgees hereunder. | ||
6.3 | Information by the Pledgor | |
The Pledgor shall inform the Administrative Agent promptly ( unverzüglich ) of all other actions concerning the Pledged Company which could be reasonably expected to materially adversely affect the Pledges (or any part thereof). In particular, the Pledgor shall notify the Administrative Agent forthwith of: |
(a) | any shareholders meeting at which a resolution is intended to be adopted which could have a material adverse effect upon the Pledges. In any event, the Pledgor shall procure that the Administrative Agent will upon request promptly ( unverzüglich ) receive, as soon as they are available, a copy of the convocation notice for such ordinary or extraordinary shareholders meeting setting forth the agenda and all applications and decisions to be taken, and the minutes of any such shareholders meeting; and | ||
(b) | any resolution which is intended to be adopted outside a shareholders meeting and which could have a material adverse effect upon the Pledges and provide to the Administrative Agent a draft of any such resolution. In any event, the Administrative Agent shall upon request promptly ( unverzüglich ) receive, as soon as it is available, a copy of any such resolution. |
7. | ENFORCEMENT OF THE PLEDGES | |
7.1 | Pledgees rights | |
(a) | At any time after the occurrence and during the continuation of an Event of Default if, in addition, the requirements set forth in sections 1273, 1204 et seq. of the German Civil Code ( Bürgerliches Gesetzbuch ) with regard to the enforcement of pledges are met ( Pfandreife ), the Pledgees (or any of them) acting through the Administrative Agent shall be entitled to enforce the Pledges (or any part thereof) by way of public auction ( öffentliche Versteigerung ) and/or in any other way permitted under German law, in all cases notwithstanding section 1277 of the German Civil Code without any enforceable judgment or other instrument ( vollstreckbarer Titel ). | |
(b) | The Pledgees (or any of them) acting through the Administrative Agent shall notify the Pledgor of the intention to realise the Pledges (or any part thereof) not less than 1 (one) week before the date on which the Pledges (or any such part thereof) are intended to be enforced. Such notice period is not necessary if (i) the Pledgor has generally ceased to make payments, (ii) an application for the commencement of insolvency proceedings over the assets of the Pledgor is filed (and not withdrawn) by the Pledgor or by any third person and, in the latter case, it is not without delay established to the satisfaction of the Pledgees that the application is obviously frivolous or (iii) the observance of such notice period can reasonably be expected to adversely affect the enforceability of the Pledges (or any part thereof). The Pledgor hereby expressly agrees that 1 (one) weeks prior written notice to it of the place and time of any public auction held in accordance with Clause 7.1 (a) (Pledgees rights) above shall be sufficient. Such public auction may be held at any place in the Federal Republic of Germany which will be determined by the Administrative Agent. |
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(c) | If the Administrative Agent seeks to enforce the Pledges (or any part thereof) pursuant to, and in accordance with Clause 7.1(a) (Pledgees Rights) above, the Pledgor shall, at its own expense, render forthwith all assistance necessary in order to facilitate the prompt realisation of the Pledged Shares (or any of them) and/or the exercise by the Pledgees (or any of them) acting through the Administrative Agent of any other right a Pledgee may have pursuant to this Agreement or statutory German law. | |
(d) | In case of an enforcement of the Pledges or if the Pledgor pays or repays any of the Secured Claims owed by any other Obligor, section 1225 of the German Civil Code ( Bürgerliches Gesetzbuch ) (Legal subrogation of claims to a pledgor ( Forderungsübergang auf den Verpfänder )) shall not apply and no rights or claims of the Pledgees shall pass to the Pledgor until the full and irrevocable satisfaction and discharge of all Secured Claims. | |
(e) | The Pledgees (or any of them) acting through Administrative Agent may determine which part of the Security, if applicable, shall be used to satisfy the Secured Claims. | |
7.2 | Dividends | |
Provided that the requirements for enforcement referred to under Clause 7.1(a) (Pledgees Rights) above are met and an enforcement notice has been served in accordance with Clause 7.1 (b), all dividends and all other payments based on similar ancillary rights attributed to the Pledged Shares may be applied by the Pledgees in satisfaction in whole or in part of the Secured Claims notwithstanding a Pledgees right to treat such payments as additional collateral. Any such payments which are made to the Pledgor after the time the Pledges have become enforceable must be paid to the Administrative Agent. | ||
7.3 | Voting rights | |
Even if the requirements for enforcement referred to under Clause 7.1(a) (Pledgees Rights) above are met, the Administrative Agent shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the Pledged Shares for itself or on behalf of any of the Pledgees. However, the Pledgor shall, upon the occurrence of an event which gives the Pledgees the right to enforce the Pledges (or any part thereof) pursuant to Clause 7.1, have the obligations and the Pledgees shall have the rights set forth in Clause 6.3 (Information by the Pledgor) of this Agreement regardless of which resolutions are intended to be adopted. | ||
7.4 | Application of proceeds | |
(a) | The proceeds resulting from the enforcement of the Pledges (or any part thereof) shall be applied by the Administrative Agent towards the satisfaction of the Secured Claims. | |
(b) | Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgees shall be entitled to treat all enforcement proceeds, held by the Administrative Agent separate from its assets on a separate trust account for the benefit of the Secured Parties and after the full and irrevocable satisfaction and discharge for the benefit of the Pledgor, as additional collateral for the Secured Claims, notwithstanding their right to seek satisfaction from such proceeds at any time. | |
(c) | After the full and irrevocable satisfaction and discharge of all Secured Claims any remaining proceeds resulting from the enforcement of the Pledges (or any part thereof) shall be transferred to the Pledgor at the cost and expense of the Pledgor. |
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8. | NO DEFENCES OR RECOURSE | |
8.1 | The Pledgor hereby waives any rights of revocation ( Anfechtbarkeit ) and set-off ( Aufrechenbarkeit ) it may have pursuant to sections 1211 and 770(1) and (2) of the German Civil Code ( Bürgerliches Gesetzbuch ) save to the extent that the relevant Secured Claims can be discharged by way of set off against counterclaims which are undisputed ( unbestritten ) or ascertained by unappealable judgment ( rechtskräftig festgestellt ) and any defence of failure to pursue remedies ( Einrede der Vorausklage ) it may have. | |
8.2 | To the extent legally possible, the Pledgor hereby expressly waives the defences exercisable by it pursuant to section 1211 para. 1 sentence 1 alternative 1 of the German Civil Code ( Bürgerliches Gesetzbuch ) which the principal debtor of any Secured Claim has against any Secured Claim ( Einreden des Hauptschuldners ). | |
8.3 | In addition to Clause 7. 1(d) (Pledgees rights) of this Agreement, the Parties hereby agree that until the full and irrevocable satisfaction and discharge of all Secured Claims no rights and claims shall pass to or otherwise arise for the benefit of the Pledgor by subrogation ( gesetzlicher Übergang von Forderungen und Rechten ) or otherwise, including any recourse claims, indemnification claims, claims arising from unjust enrichment ( ungerechtfertigte Bereicherung ) and any right to demand the assignment and/or transfer of any Secured Claim and/or Security, against any Obligor, grantor of Security or Secured Party (as the case may be) which it may (but for this Clause 8) acquire as a result of: |
(i) | a payment or repayment by the Pledgor of any debt of any other Obligor under any of the Loan Documents; or | ||
(ii) | in case of enforcement of the Pledges (or any part thereof). |
Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgor furthermore undertakes not to exercise ( pactum de non petendo ), and not to purport to exercise, any such rights and claims which may pass to it or otherwise arise for its benefit notwithstanding this Clause 8 or would pass to it or otherwise arise for its benefit but for this Clause 8. | ||
The provisions under this Clause 8.3 shall not apply with regard to a recourse claim, if the parties agreed to allow such recourse of the Pledgor against any of the other Parties thereby taking at all times into account the terms of the Credit Agreement and any other Loan Document. | ||
9. | REPRESENTATIONS AND WARRANTIES | |
The Pledgor represents and warrants ( selbständiges Garantieversprechen im Sinne von § 311 Bürgerliches Gesetzbuch ) to the Pledgees that on the date of this Agreement: |
(a) | the Pledged Company is validly existing and is neither: |
(i) | unable to pay its debts when they fall due ( zahlungsunfähig ) within the meaning of section 17 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(ii) | in a state of imminent inability to pay its debts when they fall due ( drohende Zahlungsunfähigkeit ) within the meaning of section 18 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iii) | over-indebted ( überschuldet ) within the meaning of section 19 of the German Insolvency Code ( Insolvenzordnung ); nor |
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(iv) | subject to any insolvency proceedings ( Insolvenzverfahren ) (or other or similar proceedings under the laws of any other applicable jurisdiction) or any refusal of opening insolvency proceedings for insufficiency of assets ( Abweisung mangels Masse ) (within the meaning of section 26 of the German Insolvency Code ( Insolvenzordnung )); |
(b) | the Shares are the only shares ( Geschäftsanteile ) in the Pledged Company in existence at the date hereof; | ||
(c) | the Pledgor is not subject to any restriction of any kind with regard to the transfer of, or the granting of a pledge in, or any other disposal of, the Pledged Shares, or with regard to the right to receive dividends on the Pledged Shares; | ||
(d) | the Pledgor is the sole legal and beneficial owner of the Pledged Shares and the Pledged Shares have not been transferred to or encumbered for the benefit of any third person and are not subject to any other rights of third parties (including, but not limited to, any pre-emption rights of third parties for shares in the Pledged Company); | ||
(e) | the Plegor is entitled to participate in the dividends of the Pledged Company free of any and all in-rem rights of others; | ||
(f) | the Shares are fully paid and there is no obligation for a shareholder to make additional contributions ( keine Nachschusspflicht ); and | ||
(g) | no litigation, arbitration or administrative proceedings, which could reasonably be expected to have a material adverse effect, are presently in progress, pending or threatened which restrain, or threaten to restrain, the Pledgor in respect of the entry into, the performance of, or compliance with, any of its obligations pursuant to this Agreement. |
10. | UNDERTAKINGS | |
10.1 | General undertakings | |
The Pledgor undertakes: |
(a) | if any amount in excess of US$100,000 payable or security transferrable under or in connection with this Agreement shall be or become evidenced by any authorisation, approval, licence and consent such authorisation, approval, licence and consent shall be promptly delivered to the Administrative Agent, duly indorsed in a manner satisfactory to the Administrative Agent; | ||
(b) | to maintain the security interest created by this Agreement as a perfected security interest and to defend such security interest against the claims and demands of all persons whomsoever subject to the rights of the Pledgor under the Loan Documents to dispose of the Pledged Shares; | ||
(c) | at any time and from time to time, upon the written request of the Administrative Agent and at the sole expense of such Plegor, to promptly ( unverzüglich ) and duly execute and deliver, and have recorded such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, execute one or more collateral agreements (including assignments and |
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releases) to obtain or preserve the security interest created by this Agreement in favour of the Administrative Agent and the other Secured Parties |
(d) | to notify the Administrative Agent promptly ( unverzüglich ) of any change in the shareholding in the Pledged Company or of any change in the shareholders agreement ( Gesellschaftsvertrag ); | ||
(e) | to inform the Administrative Agent promptly ( unverzüglich ) of any attachments ( Pfändung ) regarding the Shares or any other measures which can reasonably be expected to impair or jeopardise the Pledgees rights relating to the Pledged Shares. In the event of an attachment, the Pledgor undertakes to forward to the Administrative Agent promptly ( unverzüglich ) a copy of the attachment order ( Pfändungsbeschluss ), any third party debt order ( Überweisungsbeschluss ) and all other documents necessary for a defence against the attachment. The Pledgor shall inform the attaching creditor promptly ( unverzüglich ) about the Pledgees security interests; | ||
(f) | if and to the extent the Pledged Shares are not fully paid up at the date hereof, to fully pay up the Pledged Shares promptly ( unverzüglich ) upon the execution of this Agreement and to procure that there will be no obligation for a shareholder to make additional contributions; | ||
(g) | not to create or permit to subsist any encumbrance over all or any of the Pledged Shares or any interest therein or otherwise sell, transfer or dispose of the whole or any part of the Pledged Shares or any interest therein; | ||
(h) | to refrain from any acts or omissions which can reasonably be expected have an adverse effect on the validity or enforceability of the Pledges (or any part thereof); and | ||
(i) | with regard to any and all shares in the capital of the Pledged Company issued in addition to the Shares in what ever nominal value which the Pledgor may acquire or receive otherwise in future in the event of an increase of the capital of the Pledged Company or otherwise: |
(i) | to inform the Administrative Agent of the intention to either raise additional capital by increasing its capital ( Kapitalerhöhung ) or acquire or receive additional capital otherwise; | ||
(ii) | after prior written consent of the Administrative Agent to such increase, to only give effect to such increase of (acquire or receive) the capital by dividing the aggregate new capital into shares, such that 66% of the new capital and of 34% of the new capital can be pledged separately (such as in two shares one which represents 66%of the new capital an another one representing the remaining 34% of the new capital); and | ||
(iii) | to pledge the new share(s) corresponding to 34% of the new capital within five (5) Business Days in favour of the Pledgee substantially under the same terms and conditions as agreed to in this Agreement. |
(j) | to file within five (5) Business Days the new list of shareholders representing the split of the shares in 25,000 different shares with the nominal amount of EUR 1 each with the competent commercial register. |
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10.2 | Pledge over all Shares | |
The Administrative Agent may at all times for itself and for the other Pledgees request to hold a pledge over all Pledged Shares held by the Pledgor (in particular, without limitation, in the case of a merger or conversion an equivalent security interest over the shares or interests in the surviving or, as the case may be, the new company) in accordance with all terms of this Agreement and the agreement on or about the date of this Agreement pursuant to which the Remaining Share is pledged. | ||
11. | RELEASE | |
11.1 | Confirmation | |
After the full and irrevocable satisfaction and discharge of all Secured Claims the Administrative Agent shall confirm in writing to the Pledgor upon the Pledgors request that the Pledges have ceased to exist and/or, as applicable, the release of the Pledges ( Pfandaufgabe ), at the cost and expense of the Pledgor (if any). | ||
11.2 | Release of Security | |
Even prior to the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgees are obliged to release upon the Pledgors request, and at the Pledgors cost and expense, all or part of the Security insofar as the realisable value of the Security exceeds, not only temporarily, the Secured Claims by more than 10%. The Administrative Agent may, at its discretion, determine which part of the Security shall be released but shall reasonably take into account the legitimate interest of the Pledgor and the Pledged Company. | ||
12. | INDEMNITY | |
12.1 | Liability for Damages | |
Neither the Administrative Agent nor any of the other Pledgees shall be liable for any loss or damage suffered by the Pledgor save in respect of such loss or damage which is suffered as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent or any of the other Pledgees. | ||
12.2 | Indemnification | |
The Pledgor shall indemnify and hold the Administrative Agent and each of the other Pledgees harmless and keep them indemnified from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement, which may be incurred by or made against the Administrative Agent and/or any of the other Pledgees for anything done or omitted in the exercise or purported exercise of the powers contained in this Agreement, provided , that the Pledgor shall have no obligation hereunder to the extent that such liabilities, obligations, losses, damages, penalties, actions, judgments suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement are incurred by or made against the Administrative Agent or any of the other Pledgees as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent or any of the other Pledgees. | ||
Any reference in this paragraph to the Administrative Agent and/or the other Pledgees includes any officer, director, employee, agent, advisor (including any attorney) or other person appointed by the |
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Administrative Agent or any other Pledgee in accordance with the provisions of this Agreement and the other Loan Documents. |
13. | DURATION AND INDEPENDENCE | |
13.1 | Duration | |
This Agreement shall remain in full force and effect until the full and irrevocable satisfaction and discharge of the Secured Claims. The Pledges shall not cease to exist if any payments made in satisfaction of the Secured Claims have only temporarily discharged the Secured Claims. | ||
13.2 | Continuing Security | |
This Agreement shall create a continuing Security and no change or amendment whatsoever in any Loan Document or in any document or agreement related to it shall affect the validity or limit the scope of this Agreement or the obligations which are imposed on the Pledgor pursuant to it. | ||
The Pledgor hereby agrees that the Pledges shall not be affected by any assumption of liability ( Schuldübernahme ) in relation to any of the Secured Claims and hereby expressly consents ( willigt ein ) to any such transfer and/or assumption of liability within the meaning of section 418 para. 1 sentence 3 of the German Civil Code ( Bürgerliches Gesetzbuch ) (including when applied by analogy). | ||
13.3 | Independence | |
This Agreement and the Pledges are independent from all other security interests or guarantees which may have been or will be given to the Administrative Agent and/or any of the other Secured Parties with respect to any obligation of the Obligors (or any of them). None of such other security interests or guarantees shall in any way prejudice, or be prejudiced by, this Agreement or the Pledges. | ||
14. | COSTS AND EXPENSES | |
The Pledgor shall promptly ( unverzüglich ) pay or reimburse each Pledgee the amount of any and all costs, charges, fees and expenses (including fees for legal advisers) incurred by it in connection with the enforcement or preservation of any rights under this Agreement or any waiver in relation thereto, together in each case with any applicable value added tax or other taxes. Any notarial fees and expenses incurred in connection with this Agreement shall be borne by the Pledgor. | ||
15. | PARTIAL INVALIDITY; WAIVER | |
15.1 | Invalidity | |
If any provision of this Agreement or part thereof should be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions hereof. The invalid or unenforceable provision shall be replaced by that provision which best meets the intent of the replaced provision. This shall apply analogously with respect to anything which is accidentally not regulated in this Agreement ( Vertragslücke ). § 139 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall be waived hereby. | ||
In particular the Pledges shall not be affected and shall in any event extend to any and all of the Pledged Shares held by the Pledgor in the Pledged Company even if the number or nominal value of |
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the Shares, the Pledged Shares or the aggregate liable capital of the Pledged Company as stated in Clause 2.1(b) (Pledged Shares) are inaccurate and deviate from the actual facts. |
15.2 | Waiver | |
No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent or the other Pledgees (or any of them), any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies provided hereunder are cumulative and not exclusive of any rights or remedies provided by law. | ||
16. | AMENDMENTS | |
Changes to and amendments of this Agreement including this Clause 16 must be made in writing. | ||
17. | SUCCESSORS, ASSIGNMENTS AND TRANSFERS | |
This Agreement shall be binding upon the Parties hereto and, to the extent legally possible, their respective successor(s) in law. Each Pledgee shall, to the extent legally possible, be entitled to assign or otherwise transfer (i) any and all of its rights and (ii) (only with regard to any person which becomes a lender or an administrative agent under the Credit Agreement after the date of this Agreement) any and all of its duties pursuant to this Agreement to third parties. The Pledgor is entitled to any such transfer with the prior written consent of the Pledgees (acting through the Administrative Agent, as the case may be) only. | ||
18. | NOTICES AND THEIR LANGUAGE | |
18.1 | Notices | |
Any notice or other communication under or in connection with this Agreement to the Pledgor or the Administrative Agent and/or any of the other Pledgees shall be in writing (unless notarisation is required) and shall be delivered personally, by post, email or fax and shall be sent to the address, email address or fax number of the party, and for the attention of the individual or department, as set forth in Schedule 3 hereto or such other address, email address or fax number as is notified in writing by that Party for this purpose to the Facility Agent, the Administrative Agent or, as the case may be, the Pledgor, from time to time. | ||
18.2 | Language | |
Save for the notice pursuant to section 1280 of the German Civil Code ( Bürgerliches Gesetzbuch ) and unless otherwise required by statutory German law or unless otherwise agreed in writing from time to time, any notice or other communication under or in connection with this Agreement shall be made in the English language or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail (unless the document is a statutory or other official document), except that where a German translation of a legal term appears in such text, the German translation shall prevail. | ||
19. | APPLICABLE LAW; JURISDICTION | |
19.1 | Governing Law | |
This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. |
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19.2 | Jurisdiction | |
The place of jurisdiction for all Parties shall be Frankfurt am Main, Federal Republic of Germany. The Administrative Agent and the other Pledgees, however, shall also be entitled to take legal action against the Pledgor before any other competent court of law having jurisdiction over the Pledgor or any of its assets. | ||
20. | NOTIFICATION | |
The Pledgor and the Pledgees hereby instruct and the Pledgor authorises the undersigned Notary Public to notify the Pledged Company in the Pledgors name of the Pledges by means of forwarding a certified copy of this Agreement to the Pledged Company by registered mail (return receipt requested). |
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To the Pledgor:
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First Solar, Inc.
350 West Washington Street, Suite 600 Tempe, Arizona 85281 |
To the Administrative Agent:
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JPMorgan Chase Bank, N.A.
10 South Dearborn, 7 th Floor Chicago, IL 60603 |
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Attention: Creston Wren
Telecopy: 001 (312) 385-7097 Telephone: 001 (312) 385-7016 |
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With a copy to
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JPMorgan Chase Bank, N.A.
125 London Wall London EC2Y 5AJ |
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Attention: Lucy Chick
Telecopy: +44(0)20 7325 6835 Telephone: +44(0)20 7325 6926 |
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With a copy to
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JPMorgan Chase Bank, N.A.
201 North Central Avenue, Floor 21Phoenix, AZ 85004 |
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Attention: Mark Chambers
Telecopy: 001 (602) 221-1502 Telephone: 001 (602) 221-2290 |
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To the Pledged Company:
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First Solar Holdings GmbH
Rheinstr. 4B 55116 Mainz |
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Page | ||||||
Clause | ||||||
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1.
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Interpretation | 1 | ||||
2.
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Pledge | 6 | ||||
3.
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Independent Pledges | 6 | ||||
4.
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Purpose of the Pledges | 6 | ||||
5.
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Dividends and other payment claims | 7 | ||||
6.
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Exercise of voting rights | 7 | ||||
7.
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Enforcement of the Pledges | 8 | ||||
8.
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Maintenance of Liable Capital | 9 | ||||
9.
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No defences or recourse | 13 | ||||
10.
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Representations and warranties | 13 | ||||
11.
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Undertakings | 14 | ||||
12.
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Release | 15 | ||||
13.
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Indemnity | 16 | ||||
14.
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Duration and independence | 16 | ||||
15.
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Costs and expenses | 17 | ||||
16.
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Partial invalidity; Waiver | 17 | ||||
17.
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Amendments | 17 | ||||
18.
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Successors, assignments and transfers | 17 | ||||
19.
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Notices and their language | 18 | ||||
20.
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Applicable law; Jurisdiction | 18 | ||||
21.
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Notification | 18 | ||||
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Schedules | ||||||
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1.
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Original Lenders | 19 | ||||
2.
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Original Obligors | 20 | ||||
3.
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Addresses for notices | 21 |
FIRST SOLAR HOLDINGS GMBH, a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 40090 as pledgor (the Pledgor ) | ||
on one side; and | ||
(1) | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ as administrative agent (the Administrative Agent ). |
(A) | The Original Lenders (as defined below) have agreed to make available to the Borrowers (as defined below) certain revolving credit facilities and certain letters of credit on the terms of and subject to the Credit Agreement (as defined below). | |
(B) | It is a condition to the Original Lenders (as defined below) making the credit facilities available to the Borrowers (as defined below) that the Pledgor enters into this Agreement. |
1. | INTERPRETATION | |
1.1 | Definitions |
In this Agreement: | ||
Additional Domestic Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Domestic Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Foreign Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Additional Foreign Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Agent means: |
(a) | the Syndication Agent; | ||
(b) | the Documentation Agent; and |
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(c) | the Administrative Agent. | ||
Ancillary Rights means: | |||
(a) | dividends, if any, payable on the Shares; | ||
(b) | liquidation proceeds ( Liquidationserlöse ), consideration for redemption ( Einziehungsentgelt ), repaid capital in case of a capital decrease ( Kapitalherabsetzung ), any compensation in case of termination ( Kündigung ) and/or withdrawal ( Austritt ) of a shareholder of the Pledged Company, the surplus in case of surrender ( Preisgabe ) and all other pecuniary claims associated with the Shares; | ||
(c) | the right to subscribe for newly issued shares. |
Assignment and Assumption Agreement means the assignment and assumption agreement, pursuant to which a Lender as assignor sells and assigns to a person as assignee , inter alia , any or all of the assignors rights and obligations in its capacity as a lender under the Credit Agreement. | ||
Borrower means any Domestic Borrower and any Foreign Borrower. | ||
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main, Germany. | ||
Company means First Solar, Inc., a corporation organised under the laws of Delaware, United States of America, having its business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America | ||
Credit Agreement means the New York law governed credit agreement dated on or about the date of this Agreement between the Company and the Original Foreign Borrowers on one side and, inter alia, the Administrative Agent and the Original Lenders together with each New Lender Supplement, and Assignment and Assumption Agreement relating thereto and any and each other agreement or instrument amending, modifying, extending, restating or supplementing it from time to time providing for an approximately $300,000,000 facility and an up to $100,000,000 Incremental Facility. | ||
Documentation Agent means The Royal Bank of Scotland plc. | ||
Dollar or $ means the lawful currency of the United States of America. | ||
Domestic Borrower means the Company and any Additional Domestic Borrower. | ||
Domestic Guarantor means any Original Domestic Guarantor and any Additional Domestic Guarantor. | ||
Euro, EUR or means the single currency of the participating member states of the European Union. | ||
Event of Default means an event (i) in which the commitments under the Credit Agreement will automatically immediately terminate and the amounts outstanding are immediately due and payable (ii) which would entitle the Administrative Agent (A) to, inter alia, prematurely terminate all or part of the total commitments under the Credit Agreement and/or (B) to declare that all or part of the amounts outstanding under the Credit Agreement are immediately due and payable or payable on |
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demand provided that any requirement for the giving of notice, the lapse of time or both has been satisfied. | ||
Existing Share means the share in the Pledged Company as set forth in Clause 2.1(b) (Pledged Shares) hereof. | ||
Foreign Borrower means any Original Foreign Borrower and any Additional Foreign Borrower. | ||
Foreign Guarantor means any Original Foreign Guarantor and any Additional Foreign Guarantor. | ||
Future Pledgee means any person or entity replacing the Administrative Agent in its function as administrative agent under the Credit Agreement. | ||
Future Shares means any and all shares in the capital of the Pledged Company issued in addition to the Existing Share in whatever nominal value which the Pledgor may acquire in future in the event of an increase of the capital of the Pledged Company or otherwise. | ||
German Borrower means First Solar Manufacturing GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which becomes a borrower under the Credit Agreement after the date of the Credit Agreement. | ||
German Guarantor means First Solar GmbH and First Solar Holdings GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which is required to provide for a guarantee in connection with the Loan Documents after the date of the Credit Agreement. | ||
Group means the Company and its Subsidiaries from time to time. | ||
Guarantee and Collateral Agreement means the guarantee and collateral agreement dated on or about the date of this Agreement made between, inter alia , First Solar, Inc. and certain of its Subsidiaries in favour of the Administrative Agent which will be attached as Exhibit A to the Credit Agreement. | ||
Guarantor means any Domestic Guarantor and any Foreign Guarantor. | ||
Incremental Facility means any additional revolving loan provided either |
(i) | by a person that already is a lender under the Credit Agreement (defined as increasing lender therein) after having accepted an increase of its revolving commitment; or | ||
(ii) | by an assuming lender becoming a new lender under the Credit Agreement (defined as assuming lender therein) after having signed a New Lender Supplement, |
provided that the aggregate amount of the aggregate revolving loans will in no event exceed $400,000,000. | ||
Issuing Lender means the Original Issuing Lender and any other lender that has agreed in its sole discretion to issue a letter of credit to any Borrower or any other borrowing Subsidiary in connection with the Credit Agreement. | ||
Lender means an Original Lender and any person which becomes a lender under the Credit Agreement, including without limitation an assuming lender of an Incremental Facility, after |
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the date of this Agreement, unless, in each case, such person has ceased to be a lender under the Credit Agreement. | ||
Letter of Credit means any letter of credit issued or to be issued under the Credit Agreement, as such letter of credit may be amended, modified, restated, extended, renewed, increased, replaced or supplemented from time to time. | ||
Loan Document means |
New Lender Supplement means a supplement to the Credit Agreement pursuant to which an assuming lender will become a party to the Credit Agreement with a revolving commitment in an amount agreed by such assuming lender. | ||
Note means any promissory note evidencing loans in accordance with the terms of the Credit Agreement, that may be amended, modified, supplemented, extended, renewed or replaced from time to time. | ||
Obligor means a Borrower and/or a Guarantor. | ||
Original Domestic Guarantors means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Domestic Guarantors. | ||
Original Foreign Borrower means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Borrowers. | ||
Original Foreign Guarantor means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Guarantors. | ||
Original Issuing Lender means JPMorgan Chase Bank, N.A. | ||
Original Lender means each of the financial institutions set out in Schedule 1 hereto in its capacity as original lender to the Company and the Original Foreign Borrowers. | ||
Original Pledgees means the Administrative Agent. | ||
Parties means the Pledgor, the Administrative Agent and the Pledgees. | ||
Person means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, any governmental authority or other entity of whatever nature. | ||
Pledged Company means First Solar GmbH, a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 8855. |
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Pledges means any and all pledges constituted pursuant to Clause 2.2 (a) of this Agreement. | ||
Pledgees means the Administrative Agent and any Future Pledgee. | ||
Secured Claims means all present and future rights and claims ( Ansprüche ) (whether actual or contingent and whether owned jointly or severally or in any other capacity whatsoever) (including claims from unjust enrichment ( ungerechtfertige Bereicherung ) and tort ( Delikt )) of any of the Secured Parties against any German Borrower and any German Guarantor under or in connection with the Loan Documents (or any of them) or any Letter of Credit, each as amended, varied, supplemented or novated from time to time, including without limitation, any increase of principal or interest, in each case together with all interest, costs, charges and expenses incurred by any Secured Party in connection with the protection and preservation or enforcement of its respective rights under the Loan Documents or any Letter of Credit. | ||
Secured Party means an Agent, the Lenders and any affiliate of any Lender to which any obligations under any Loan Document or under any Specified Swap Agreements are owed by any member of the Group, any Issuing Lender and any Swap Counterparty. | ||
Security means any and all collateral granted with a view to securing the Secured Claims. | ||
Security Document means |
(a) | the Guarantee and Collateral Agreement; and | ||
(b) | any other document evidencing or creating collateral over any asset of an Obligor to secure any obligation of an Obligor under or in connection with, inter alia , the Credit Agreement. |
Shares means the Existing Share and the Future Shares. | ||
Specified Swap Agreement means any Swap Agreement entered into by the Company or any Guarantor and any lender or any affiliate of a lender in connection with the Credit Agreement. | ||
Subsidiary means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. And unless otherwise qualified, all references to a Subsidiary or to Subsidiaries in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.an entity of which a person owns directly or indirectly more than 50 percent (50%) of the voting capital or similar right of ownership. | ||
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; except for any phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any of its Subsidiaries. | ||
Swap Counterparty means any person or entity providing a Specified Swap Agreement. | ||
Syndication Agent means Credit Suisse, Cayman Islands Branch. |
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1.2 | Where the context so admits, the singular includes the plural and vice versa. | |
1.3 | The headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. | |
1.4 | Any reference in this Agreement to a defined document is a reference to that defined document as amended, varied, supplemented or novated from time to time. | |
1.5 | Any reference to a Party or other person (including any Obligor and any Secured Party) includes its respective successor(s) in law (including any universal successor ( Gesamtrechtsnachfolger ) of that person by way of merger ( Verschmelzung ), any other reorganisation contemplated in the German Transformation Act ( Umwandlungsgesetz ) or otherwise) and any assign(s) and transferee(s) of that person and, to the extent legally possible, any legal provision to the contrary is waived. | |
2. | PLEDGE | |
2.1 | Pledged Shares |
(a) | The Pledgor is at the date of this Agreement the sole shareholder of the Pledged Company. | ||
(b) | The total registered share capital ( Stammkapital ) of the Pledged Company amounts to EUR 25,000 (in words: twenty five thousand Euro). The registered share capital of the Pledged Company is represented by one share amounting to EUR 25,000 (in words: twenty five thousand euro) (the Existing Share ) which is held by the Pledgor. At present, there are no other shares in the Pledged Company. | ||
(c) | The Existing Share is fully paid up. As at the date hereof, there is no obligation for the Pledgor to make additional contributions to the Pledged Company. |
2.2 | Constitution of Pledge |
(a) | The Pledgor hereby pledges the Shares and any and all Ancillary Rights pertaining thereto to each of the Original Pledgees and to each Future Pledgee for their rateable and equally ranking interest as security. | ||
(b) | Each of the Original Pledgees hereby accepts the Pledges. In addition the Administrative Agent accepts the Pledges for and on behalf of each Future Pledgee hereunder as proxy without power of attorney ( Vertreter ohne Vertretungsmacht ). Each Future Pledgee ratifies and confirms such acceptance so made by the Administrative Agent on its behalf by accepting the transfer or assignment of any Secured Claim and/or by becoming a party to a Loan Document, thereby becoming a Pledgee. All Parties confirm that the validity of any of the Pledges constituted hereunder is not affected by the Administrative Agent acting as proxy without power of attorney for any Future Pledgee. For the avoidance of doubt, the Parties agree that nothing in this Agreement shall exclude a transfer of all or part of the Pledges by operation of law. |
3. | INDEPENDENT PLEDGES |
The validity and effect of each of the Pledges shall be independent from the validity and the effect of any of the other Pledges created hereunder. The Pledges to each of the Pledgees shall be separate and individual pledges. Each of the Pledges shall rank pari passu to each other Pledge created hereunder. |
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4. | PURPOSE OF THE PLEDGES | |
The Pledges are constituted in order to secure the full and irrevocable satisfaction and discharge of any and all Secured Claims. | ||
The Parties hereby expressly agree that the provisions of section 1210 para 1 sentence 2 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall not apply to this Agreement and the Pledges. | ||
5. | DIVIDENDS AND OTHER PAYMENT CLAIMS | |
5.1 | Entitlement to receive dividend payments and to exercise other Ancillary Rights | |
Notwithstanding that the dividends and the other Ancillary Rights are pledged pursuant to this Agreement, the Pledgor shall be entitled to (i) receive and retain all dividend payments and all other payments in respect of the Shares and (ii) receive, retain and exercise all other Ancillary Rightsunless an Event of Default has occurred, is continuing and the Administrative Agent would be entitled to enforce any of the Pledges pursuant to Clause 7 of this Agreement.. | ||
5.2 | Pledgees rights | |
Notwithstanding Clause 5.1 (Entitlement to receive dividend payments) above: |
(a) | dividends paid or payable other than in cash and other property received, receivable or otherwise distributed in respect of or in exchange for the Shares; | ||
(b) | dividends or other distributions paid or payable in cash in respect of the Shares in connection with (i) the partial or total liquidation; (ii) dissolution; or (iii) in connection with the reduction of capital ( Kapitalherabsetzung ); and | ||
(c) | cash paid, payable or otherwise distributed in respect of principal of, or in redemption of, or in exchange for the Shares, |
shall be made available and shall forthwith be delivered to the Administrative Agent for itself and for the Pledgees to be held as security for the Secured Claims and shall, if received by the Pledgor, be received as holder for the Pledgees and segregated from the other property or funds of the Pledgor and be forthwith delivered to the Administrative Agent for itself and for the Pledgees as security for the Secured Claims in the same form as so received (with any necessary endorsement). Any further reaching obligations of the Pledged Company and/or the Pledgor in respect of the use of profits and/or dividends shall not be affected by this Clause 5.2. |
6. | EXERCISE OF VOTING RIGHTS | |
6.1 | Voting Rights | |
The voting rights resulting from the Shares remain with the Pledgor. The Pledgor, however, shall at all times until the full and irrevocable satisfaction and discharge of all Secured Claims or the release of the Pledges be required, in exercising its voting rights, to act in good faith to ensure that the existence, validity or enforceability of the Pledges is not adversely affected. | ||
6.2 | Impairment | |
The Pledgor shall not take, or participate in, any action which can be reasonably be expected to impair, or to be for any other reason inconsistent with, the security interest of the Pledgees or the |
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security purpose as described in Clause 4 (Purpose of the Pledges) hereof or to defeat, impair or circumvent the rights of the Pledgees hereunder. | ||
6.3 | Information by the Pledgor | |
The Pledgor shall inform the Administrative Agent promptly ( unverzüglich ) of all other actions concerning the Pledged Company which could be reasonably expected to materially adversely affect the Pledges (or any part thereof). In particular, the Pledgor shall notify the Administrative Agent forthwith of: |
(a) | any shareholders meeting at which a resolution is intended to be adopted which could have a material adverse effect upon the Pledges. In any event, the Pledgor shall procure that the Administrative Agent will upon request promptly ( unverzüglich ) receive, as soon as they are available, a copy of the convocation notice for such ordinary or extraordinary shareholders meeting setting forth the agenda and all applications and decisions to be taken, and the minutes of any such shareholders meeting; and | ||
(b) | any resolution which is intended to be adopted outside a shareholders meeting and which could have a material adverse effect upon the Pledges and provide to the Administrative Agent a draft of any such resolution. In any event, the Administrative Agent shall upon request promptly ( unverzüglich ) receive, as soon as it is available, a copy of any such resolution. |
7. | ENFORCEMENT OF THE PLEDGES | |
7.1 | Pledgees rights | |
(a) | At any time after the occurrence and during the continuation of an Event of Default if, in addition, the requirements set forth in sections 1273, 1204 et seq. of the German Civil Code ( Bürgerliches Gesetzbuch ) with regard to the enforcement of pledges are met ( Pfandreife ), the Pledgees (or any of them) acting through the Administrative Agent shall be entitled to enforce the Pledges (or any part thereof) by way of public auction ( öffentliche Versteigerung ) and/or in any other way permitted under German law, in all cases notwithstanding section 1277 of the German Civil Code without any enforceable judgment or other instrument ( vollstreckbarer Titel ). | |
(b) | The Pledgees (or any of them) acting through the Administrative Agent shall notify the Pledgor of the intention to realise the Pledges (or any part thereof) not less than 1 (one) week before the date on which the Pledges (or any such part thereof) are intended to be enforced. Such notice period is not necessary if (i) the Pledgor has generally ceased to make payments, (ii) an application for the commencement of insolvency proceedings over the assets of the Pledgor is filed (and not withdrawn) by the Pledgor or by any third person and, in the latter case, it is not without delay established to the satisfaction of the Pledgees that the application is obviously frivolous or (iii) the observance of such notice period can reasonably be expected to adversely affect the enforceability of the Pledges (or any part thereof). The Pledgor hereby expressly agrees that 1 (one) weeks prior written notice to it of the place and time of any public auction held in accordance with Clause 7.1 (a) (Pledgees rights) above shall be sufficient. Such public auction may be held at any place in the Federal Republic of Germany which will be determined by the Administrative Agent. | |
(c) | If the Administrative Agent seeks to enforce the Pledges (or any part thereof) pursuant to, and in accordance with Clause 7.1(a) (Pledgees Rights) above, the Pledgor shall, at its own expense, render forthwith all assistance necessary in order to facilitate the prompt realisation of the Shares (or any of them) and/or the exercise by the Pledgees (or any of them) acting through the Administrative Agent of any other right a Pledgee may have pursuant to this Agreement or statutory German law. |
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(d) | In case of an enforcement of the Pledges or if the Pledgor pays or repays any of the Secured Claims owed by any other Obligor, section 1225 of the German Civil Code ( Bürgerliches Gesetzbuch ) (Legal subrogation of claims to a pledgor ( Forderungsübergang auf den Verpfänder )) shall not apply and no rights or claims of the Pledgees shall pass to the Pledgor until the full and irrevocable satisfaction and discharge of all Secured Claims. | |
(e) | The Pledgees (or any of them) acting through Administrative Agent may determine which part of the Security, if applicable, shall be used to satisfy the Secured Claims. |
7.2 | Dividends | |
Provided that the requirements for enforcement referred to under Clause 7.1(a) (Pledgees Rights) above are met and an enforcement notice has been served in accordance with Clause 7.1 (b), all dividends and all other payments based on similar ancillary rights attributed to the Shares may be applied by the Pledgees in satisfaction in whole or in part of the Secured Claims notwithstanding a Pledgees right to treat such payments as additional collateral. Any such payments which are made to the Pledgor after the time the Pledges have become enforceable must be paid to the Administrative Agent. | ||
7.3 | Voting rights | |
Even if the requirements for enforcement referred to under Clause 7.1(a) (Pledgees Rights) above are met, the Administrative Agent shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the Shares for itself or on behalf of any of the Pledgees. However, the Pledgor shall, upon the occurrence of an event which gives the Pledgees the right to enforce the Pledges (or any part thereof) pursuant to Clause 7.1, have the obligations and the Pledgees shall have the rights set forth in Clause 6.3 (Information by the Pledgor) of this Agreement regardless of which resolutions are intended to be adopted. | ||
7.4 | Application of proceeds | |
(a) | The proceeds resulting from the enforcement of the Pledges (or any part thereof) shall be applied by the Administrative Agent towards the satisfaction of the Secured Claims. | |
(b) | Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgees shall be entitled to treat all enforcement proceeds, held by the Administrative Agent separate from its assets on a separate trust account for the benefit of the Secured Parties and after the full and irrevocable satisfaction and discharge for the benefit of the Pledgor, as additional collateral for the Secured Claims, notwithstanding their right to seek satisfaction from such proceeds at any time. | |
(c) | After the full and irrevocable satisfaction and discharge of all Secured Claims any remaining proceeds resulting from the enforcement of the Pledges (or any part thereof) shall be transferred to the Pledgor at the cost and expense of the Pledgor. | |
8. | MAINTENANCE OF LIABLE CAPITAL | |
For the purpose of this Clause 8 (Maintenance of Liable Capital): | ||
Up-Stream and/or Cross-Stream German Pledge means in relation to a German Pledgor any Pledge directly or indirectly securing the obligations or liabilities of any member of the Relevant Group that is not a direct or indirect Relevant Subsidiary of such German Pledgor. |
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Relevant Group refers to a German Pledgor and any affiliated company ( verbundenes Unternehmen ) of such German Pledgor within the meaning of §§ 15 et. seq. of the German Stock Corporation Act ( Aktiengesetz ). | ||
Relevant Subsidiary means an entity of which a person owns directly or indirectly more than 50 percent (50%) of the voting capital or similar right of ownership. | ||
8.1 | Each of the Administrative Agent and the other Secured Parties agrees not to enforce the Pledge granted under this Agreement against any Pledgor incorporated in Germany (each, a German Pledgor ) irrespective of whether the relevant German Pledgor is at the time of enforcement incorporated as |
| a limited liability company ( Gesellschaft mit beschränkter Haftung ) (a German GmbH Pledgor ), or | ||
| a limited partnership ( Kommanditgesellschaft ) of which the general partner ( Komplementär ) is a limited liability company (a German GmbH & Co. KG Pledgor ), |
if and to the extent the Pledge granted under this Agreement is an Up-Stream and/or Cross-Stream German Pledge in relation to such German Pledgor, and (ii) if and to the extent the enforcement of such Up-Stream and/or Cross-Stream German Pledge would cause or constitute | |||
(a) | the German GmbH Pledgors, or in the case of the German GmbH & Co. KG Pledgor its general partners, net assets (the calculation of which shall take into account the captions reflected in § 266 (2) A, B and C of the German Commercial Code ( Handelsgesetzbuch )) less the German GmbH Pledgors, or in case of a German GmbH & Co. KG Pledgor its general partners, liabilities, provisions and liability reserves (the calculation of which shall take into account the captions reflected in § 266 (3) B, C and D of the German Commercial Code) (the Net Assets ) to be less than the registered share capital ( Stammkapital ) of the German GmbH Pledgor, or in the case of a German GmbH & Co. KG Pledgor of the registered share capital of its general partner ( Begründung einer Unterbilanz ); or | ||
(b) | an increase of a shortfall, if the Net Assets of the German GmbH Pledgor, or in the case of a German GmbH & Co. KG Pledgor, of its general partner, already fall short of the amount of the registered share capital ( Vertiefung einer Unterbilanz ); and/or | ||
(c) | a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ). |
8.2 | For the purposes of the calculation of the Net Assets in Clause 8.1 above the following items shall be adjusted as follows: |
(a) | the amount of an increase in the registered share capital of the German GmbH Pledgor, or in the case of a German GmbH & Co. KG Pledgor of its general partner, |
(i) | that has been effected out of retained earnings ( Kapitalerhöhung aus Gesellschaftsmitteln ) without the prior written consent of the Administrative Agent after the date of the Credit Agreement; or | ||
(ii) | any amount of an increase in the registered share capital if and to the extent that it has not been fully paid in, |
shall be deducted from the registered share capital; |
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(b) | any loans and other contractual liabilities incurred by the German GmbH Pledgor, or in the case of a German GmbH & Co. KG, its general partner in violation of the Credit Agreement after the date of the Credit Agreement shall be disregarded as liabilities; |
and |
(c) | the Net Assets shall take into account reasonable costs of the Auditors Determination (as defined below), either as a reduction of assets or an increase of liabilities. |
8.3 | Any German Pledgor, and in case of a German GmbH & Co. KG Pledgor its general partner, shall realise, to the extent legally permitted and commercially justifiable, in a situation where after enforcement of the Pledge the German GmbH Pledgor, or in the case of a German GmbH & Co. KG Pledgor its general partner, would not have Net Assets in excess of its respective registered share capital, any and all of its assets, and in case of a German GmbH & Co. KG Pledgor its general partners assets, that are shown in the respective balance sheet with a book value ( Buchwert ) that is significantly lower than the market value of the asset if such asset is not necessary for the relevant German Pledgors, and in case of a German GmbH & Co. KG Pledgor its general partners, business ( betriebsnotwendig ). | |
8.4 | Subject to Clause 8.1, after the receipt of a written demand by the Administrative Agent and/or any other Secured Party to make a payment under any Pledge granted under this Agreement (the Enforcement Notice ), a copy of the relevant determination shall be drawn up in good faith (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) and made available to the Administrative Agent by the relevant German Pledgor (the Management Determination ) within 10 (ten) Business Days of the German Pledgors receipt of the Enforcement Notice stating |
(a) | if and to what extent the Pledge granted hereunder is an Up-Stream and/or Cross-Stream German Pledge; | ||
(b) | which amount of such Up-Stream and/or Cross-Stream German Pledge can be enforced without causing the Net Assets of the relevant German Pledgor, or, where the Pledgor is a German GmbH & Co KG Pledgor, its general partner, to fall (or to fall further) below its respective registered share capital (taking into account the adjustments set out in Clauses 8.2 above and the value realisation pursuant to Clause 8.3 above), and | ||
(c) | which amount of such Up-Stream and/or Cross-Stream German Pledge can be enforced without constituting a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ), | ||
(such amount calculated according to (b) (c), the Recovery Amount ). Subject to Clause 8.6 below, the Secured Parties shall only be entitled to enforce the amount of any Up-Stream and/or Cross-Stream German Pledge up to the Recovery Amount. |
8.5 | Following the Administrative Agents receipt of a Management Determination, the relevant German Pledgor shall provide within 15 (fifteen) Business Days a determination by auditors of international standing and reputation appointed by the relevant German Pledgor or, in the case of a GmbH & Co. KG, its general partner (the Auditors Determination ) of (i) the Recovery Amount (such determination to take into account the adjustments set out in Clauses 8.2 and the value realisation pursuant to Clause 8.3 above) and (ii) an estimate of the liabilities, damages, costs, fees and expenses reasonably expected to result from a liquidation of the relevant German Pledgor, and such German Pledgor shall, not later than 10 (ten) Business Days after receipt by it of such Auditors |
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Determination, pay to the relevant Secured Parties the additional amount (if any) by which the Recovery Amount determined in the Auditors Determination exceeds the amount (if any) paid to any of the Secured Parties pursuant to Clause 8.4 above, and the Secured Parties shall repay any enforcement amount received in excess of the Recovery Amount determined in the Auditors Determination (if any) to the respective German Pledgor or, in the case of a German GmbH & Co. KG Pledgor, its general partner. | ||
8.6 | If (i) the Administrative Agent disagrees with the Auditors Determination or (ii) the relevant German Pledgor (or in the case of a German GmbH & Co KG Pledgor, its general partner) fails to deliver an Management Determination within 10 (ten) Business Days of the German Pledgors receipt of the Enforcement Notice or (iii) an Auditors Determination within 15 (fifteen) Business Days following the Administrative Agents receipt of a Management Determination, the Secured Parties shall be entitled to further pursue in court their payment claims under this Pledge granted by the respective German Pledgor in excess of the amounts paid or payable pursuant to Clauses 8.4 and 8.5 above, by claiming in court that demanding payment under the German Pledge against the relevant German Pledgor does not violate §§ 30, 31 of the German Limited Liability Companies Act and would not constitute a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ) (taking into account the calculation of the Net Assets as set out in Clause 8.1 and the adjustments as set out in Clause 8.2 and the value realisation pursuant to Clause 8.3 above). Notwithstanding the foregoing, and for the avoidance of doubt, no German Pledgor shall be obliged to pay any such amount on demand. | |
8.7 | The limitations set out in Clause 8.1 (a) and (b) and in Clause 8.4 (b) shall not apply if and to the extent the Pledge by the relevant German Pledgor secures any amounts borrowed under the Credit Agreement which are lent or on-lent to such German Pledgor or any of its direct or indirect owned Relevant Subsidiaries from time to time and have not been repaid. | |
8.8 | The limitations provided for in Clause 8.1 (a) and (b) and in Clause 8.4 (b) shall not apply so long as: |
(a) | the affected German Pledgor (or, in the case of a GmbH & Co. KG, its general partner) is a party to a profit and loss sharing agreement ( Gewinnabführungsvertrag ) and/or a domination agreement ( Beherrschungsvertrag ) where such German Pledgor (or, in the case of a GmbH & Co. KG, its general partner) is the dominated entity ( beherrschtes Unternehmen ) and/or the entity being obliged to share its profits with the other party of such profit and loss sharing agreement; it being understood that in such case the Secured Parties shall only be entitled to enforce the amount of any Up-Stream German Pledge and/or Cross-Stream German Pledge if and to the extent that it may reasonably be expected (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) that such German Pledgor (or, where the Pledgor is a German GmbH & Co KG Pledgor, its general partner) is able to recover the annual loss ( Jahresfehlbetrag ) which the dominating entity is obliged to pay pursuant to § 302 of the German Stock Corporation Act ( Aktiengesetz ). For the purpose of the determination of the amount to be recovered under this Clause 8.8, the provisions set forth under Clauses 8.4, 8.5 and 8.6 above shall apply mutatis mutandis ; and/or | ||
(b) | the relevant German Pledgors Pledge granted under this Agreement being covered by a valuable consideration or recourse claim ( vollwertiger Gegenleistungs- oder Rückgewähranspruch ) within the meaning of § 30 (1) Sentence 2 of the German Limited Liability Companies Act; and/or |
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(c) | the relevant German Pledgors payment under this Agreement discharges a shareholder loan or a claim of similar effect within the meaning of § 30 (1) Sentence 3 of the German Limited Liability Companies Act. |
8.9 | For the avoidance of doubt, any balance sheet to be prepared for the determination of the Net Assets shall be prepared in accordance with relevant accounting principles. | |
8.10 | Nothing in this Clause 8 (Maintenance of Liable Capital) shall be interpreted as a restriction or limitation of the enforcement of the Pledge granted under this Agreement if and to the extent the Pledge granted under this Agreement secures own obligations of the relevant German Pledgor or obligations of any of its direct or indirect Relevant Subsidiaries. | |
9. | NO DEFENCES OR RECOURSE | |
9.1 | The Pledgor hereby waives any rights of revocation ( Anfechtbarkeit ) and set-off ( Aufrechenbarkeit ) it may have pursuant to sections 1211 and 770(1) and (2) of the German Civil Code ( Bürgerliches Gesetzbuch ) save to the extent that the relevant Secured Claims can be discharged by way of set off against counterclaims which are undisputed ( unbestritten ) or ascertained by unappealable judgment ( rechtskräftig festgestellt ) and any defence of failure to pursue remedies ( Einrede der Vorausklage ) it may have. | |
9.2 | To the extent legally possible, the Pledgor hereby expressly waives the defences exercisable by it pursuant to section 1211 para. 1 sentence 1 alternative 1 of the German Civil Code ( Bürgerliches Gesetzbuch ) which the principal debtor of any Secured Claim has against any Secured Claim ( Einreden des Hauptschuldners ). | |
9.3 | In addition to Clause 7. 1(d) (Pledgees rights) of this Agreement, the Parties hereby agree that until the full and irrevocable satisfaction and discharge of all Secured Claims no rights and claims shall pass to or otherwise arise for the benefit of the Pledgor by subrogation ( gesetzlicher Übergang von Forderungen und Rechten ) or otherwise, including any recourse claims, indemnification claims, claims arising from unjust enrichment ( ungerechtfertigte Bereicherung ) and any right to demand the assignment and/or transfer of any Secured Claim and/or Security, against any Obligor, grantor of Security or Secured Party (as the case may be) which it may (but for this Clause 8) acquire as a result of: |
(i) | a payment or repayment by the Pledgor of any debt of any other Obligor under any of the Loan Documents; or | ||
(ii) | in case of enforcement of the Pledges (or any part thereof). |
Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgor furthermore undertakes not to exercise ( pactum de non petendo ), and not to purport to exercise, any such rights and claims which may pass to it or otherwise arise for its benefit notwithstanding this Clause 8 or would pass to it or otherwise arise for its benefit but for this Clause 8. | ||
The provisions under this Clause 8.3 shall not apply with regard to a recourse claim, if the parties agreed to allow such recourse of the Pledgor against any of the other Parties thereby taking at all times into account the terms of the Credit Agreement and any other Loan Document. | ||
10. | REPRESENTATIONS AND WARRANTIES | |
The Pledgor represents and warrants ( selbständiges Garantieversprechen im Sinne von § 311 Bürgerliches Gesetzbuch ) to the Pledgees that on the date of this Agreement: |
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(a) | both the Pledgor and the Pledged Company are validly existing and each of them is neither: |
(i) | unable to pay its debts when they fall due ( zahlungsunfähig ) within the meaning of section 17 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(ii) | in a state of imminent inability to pay its debts when they fall due ( drohende Zahlungsunfähigkeit ) within the meaning of section 18 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iii) | over-indebted ( überschuldet ) within the meaning of section 19 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iv) | subject to any insolvency proceedings ( Insolvenzverfahren ) (or other or similar proceedings under the laws of any other applicable jurisdiction) or any refusal of opening insolvency proceedings for insufficiency of assets ( Abweisung mangels Masse ) (within the meaning of section 26 of the German Insolvency Code ( Insolvenzordnung )); |
(b) | the Existing Share is the only share ( Geschäftsanteile ) in the Pledged Company in existence at the date hereof; | ||
(c) | the Pledgor is not subject to any restriction of any kind with regard to the transfer of, or the granting of a pledge in, or any other disposal of, the Existing Share, or with regard to the right to receive dividends on the Existing Share; | ||
(d) | the Pledgor is the sole legal and beneficial owner of the Shares and the Shares have not been transferred to or encumbered for the benefit of any third person and are not subject to any other rights of third parties (including, but not limited to, any pre-emption rights of third parties for shares in the Pledged Company); | ||
(e) | the Plegor is entitled to participate in the dividends of the Pledged Company free of any and all in-rem rights of others; | ||
(f) | all necessary corporate action has been taken to authorise the entry into and delivery of this Agreement; | ||
(g) | the Existing Share is fully paid and there is no obligation for a shareholder to make additional contributions ( keine Nachschusspflicht ); and | ||
(h) | no litigation, arbitration or administrative proceedings, which could reasonably be expected to have a material adverse effect, are presently in progress, pending or threatened which restrain, or threaten to restrain, the Pledgor in respect of the entry into, the performance of, or compliance with, any of its obligations pursuant to this Agreement. |
11. | UNDERTAKINGS | |
11.1 | General undertakings |
The Pledgor undertakes: |
(a) | if any amount in excess of US$100,000 payable or security transferrable under or in connection with this Agreement shall be or become evidenced by any authorisation, approval, licence and consent such authorisation, approval, licence and consent shall be |
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immediately delivered to the Administrative Agent, duly indorsed in a manner satisfactory to the Administrative Agent; |
(b) | to maintain the security interest created by this Agreement as a perfected security interest and to defend such security interest against the claims and demands of all persons whomsoever subject to the rights of the Pledgor under the Loan Documents to dispose of the Pledged Shares; | ||
(c) | at any time and from time to time, upon the written request of the Administrative Agent and at the sole expense of such Plegor, to promptly ( unverzüglich ) and duly execute and deliver, and have recorded such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, execute one or more collateral agreements (including assignments and releases) to obtain or preserve the security interest created by this Agreement in favour of the Administrative Agent and the other Secured Parties | ||
(d) | to notify the Administrative Agent promptly ( unverzüglich ) of any change in the shareholding in the Pledged Company or of any change in the shareholders agreement ( Gesellschaftsvertrag ); | ||
(e) | to inform the Administrative Agent promptly ( unverzüglich ) of any attachments ( Pfändung ) regarding any and all of the Shares or any other measures which can reasonably be expected to impair or jeopardise the Pledgees rights relating to the Shares. In the event of an attachment, the Pledgor undertakes to forward to the Administrative Agent promptly ( unverzüglich ) a copy of the attachment order ( Pfändungsbeschluss ), any third party debt order ( Überweisungsbeschluss ) and all other documents necessary for a defence against the attachment. The Pledgor shall inform the attaching creditor promptly ( unverzüglich ) about the Pledgees security interests; | ||
(f) | to fully pay up the Future Shares and to make all necessary additional contributions, and, if and to the extent the Existing Share is not fully paid up at the date hereof, to fully pay up the Existing Share promptly ( unverzüglich ) upon the execution of this Agreement and to procure that there will be no obligation for a shareholder to make additional contributions; | ||
(g) | not to create or permit to subsist any encumbrance over all or any of the Shares or any interest therein or otherwise sell, transfer or dispose of the whole or any part of the Shares or any interest therein; | ||
(h) | to refrain from any acts or omissions which can reasonably be expected have an adverse effect on the validity or enforceability of the Pledges (or any part thereof); and |
11.2 | Pledge over all Shares |
The Administrative Agent may at all times for itself and for the other Pledgees request to hold a pledge over all Shares held by the Pledgor (in particular, without limitation, in the case of a merger or conversion an equivalent security interest over the shares or interests in the surviving or, as the case may be, the new company) in accordance with all terms of this Agreement. |
12. | RELEASE | |
12.1 | Confirmation |
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After the full and irrevocable satisfaction and discharge of all Secured Claims the Administrative Agent shall confirm in writing to the Pledgor upon the Pledgors request that the Pledges have ceased to exist and/or, as applicable, the release of the Pledges ( Pfandaufgabe ), at the cost and expense of the Pledgor (if any). |
12.2 | Release of Security | |
Even prior to the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgees are obliged to release upon the Pledgors request, and at the Pledgors cost and expense, all or part of the Security insofar as the realisable value of the Security exceeds, not only temporarily, the Secured Claims by more than 10%. The Administrative Agent may, at its discretion, determine which part of the Security shall be released but shall reasonably take into account the legitimate interest of the Pledgor and the Pledged Company. | ||
13. | INDEMNITY | |
13.1 | Liability for Damages | |
Neither the Administrative Agent nor any of the other Pledgees shall be liable for any loss or damage suffered by the Pledgor save in respect of such loss or damage which is suffered as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent or any of the other Pledgees. | ||
13.2 | Indemnification | |
The Pledgor shall indemnify and hold the Administrative Agent and each of the other Pledgees harmless and keep them indemnified from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement, which may be incurred by or made against the Administrative Agent and/or any of the other Pledgees for anything done or omitted in the exercise or purported exercise of the powers contained in this Agreement, provided , that the Pledgor shall have no obligation hereunder to the extent that such liabilities, obligations, losses, damages, penalties, actions, judgments suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement are incurred by or made against the Administrative Agent or any of the other Pledgees as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent or any of the other Pledgees. | ||
Any reference in this paragraph to the Administrative Agent and/or the other Pledgees includes any officer, director, employee, agent, advisor (including any attorney) or other person appointed by the Administrative Agent or any other Pledgee in accordance with the provisions of this Agreement and the other Loan Documents. | ||
14. | DURATION AND INDEPENDENCE | |
14.1 | Duration | |
This Agreement shall remain in full force and effect until the full and irrevocable satisfaction and discharge of the Secured Claims. The Pledges shall not cease to exist if any payments made in satisfaction of the Secured Claims have only temporarily discharged the Secured Claims. |
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14.2 | Continuing Security | |
This Agreement shall create a continuing Security and no change or amendment whatsoever in any Loan Document or in any document or agreement related to it shall affect the validity or limit the scope of this Agreement or the obligations which are imposed on the Pledgor pursuant to it. | ||
The Pledgor hereby agrees that the Pledges shall not be affected by any assumption of liability ( Schuldübernahme ) in relation to any of the Secured Claims and hereby expressly consents ( willigt ein ) to any such transfer and/or assumption of liability within the meaning of section 418 para. 1 sentence 3 of the German Civil Code ( Bürgerliches Gesetzbuch ) (including when applied by analogy). | ||
14.3 | Independence | |
This Agreement and the Pledges are independent from all other security interests or guarantees which may have been or will be given to the Administrative Agent and/or any of the other Secured Parties with respect to any obligation of the Obligors (or any of them). None of such other security interests or guarantees shall in any way prejudice, or be prejudiced by, this Agreement or the Pledges. | ||
15. | COSTS AND EXPENSES | |
The Pledgor shall promptly ( unverzüglich ) pay or reimburse each Pledgee the amount of any and all costs, charges, fees and expenses (including fees for legal advisers) incurred by it in connection with the enforcement or preservation of any rights under this Agreement or any waiver in relation thereto, together in each case with any applicable value added tax or other taxes. Any notarial fees and expenses incurred in connection with this Agreement shall be borne by the Pledgor. | ||
16. | PARTIAL INVALIDITY; WAIVER | |
16.1 | Invalidity | |
If any provision of this Agreement or part thereof should be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions hereof. The invalid or unenforceable provision shall be replaced by that provision which best meets the intent of the replaced provision. This shall apply analogously with respect to anything which is accidentally not regulated in this Agreement ( Vertragslücke ). § 139 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall be waived hereby. | ||
In particular the Pledges shall not be affected and shall in any event extend to any and all of the Shares held by the Pledgor in the Pledged Company even if the number or nominal value of the Existing Share or the aggregate liable capital of the Pledged Company as stated in Clause 2.1(b) (Pledged Shares) are inaccurate and deviate from the actual facts. | ||
16.2 | Waiver | |
No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent or the other Pledgees (or any of them), any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies provided hereunder are cumulative and not exclusive of any rights or remedies provided by law. |
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a certified copy of this Agreement to the Pledged Company by registered mail (return receipt requested). |
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To the Pledgor:
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First Solar Holdings GmbH | |
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Rheinstr. 4B
55116 Mainz |
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Germany | |
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Attn.: Anja Lange | |
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David Brady
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Fax: +49(0)6131-1443-500 | |
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+1-602-414-9462
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Email: alange@firstsolar.com | |
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dbrady@firstsolar.com
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To the Administrative Agent:
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JPMorgan Chase Bank, N.A.
10 South Dearborn, 7 th Floor Chicago, IL 60603 |
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Attention: Creston Wren
Telecopy: 001 (312) 385-7097 Telephone: 001 (312) 385-7016 |
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With a copy to
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JPMorgan Chase Bank, N.A.
125 London Wall London EC2Y 5AJ |
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Attention: Lucy Chick
Telecopy: +44(0)20 7325 6835 Telephone: +44(0)20 7325 6926 |
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With a copy to
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JPMorgan Chase Bank, N.A.
201 North Central Avenue, Floor 21Phoenix, AZ 85004 |
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Attention: Mark Chambers
Telecopy: 001 (602) 221-1502 Telephone: 001 (602) 221-2290 |
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To the Pledged Company:
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First Solar GmbH | |
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Rheinstr. 4B
55116 Mainz |
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Germany | |
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Attn.: Anja Lange | |
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David Brady
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Fax: +49(0)6131-1443-500 | |
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+1-602-414-9462
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Email: alange@firstsolar.com | |
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dbrady@firstsolar.com
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Page | ||||||
Clause | ||||||
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1.
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Interpretation | 1 | ||||
2.
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Pledge | 6 | ||||
3.
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Independent Pledges | 7 | ||||
4.
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Purpose of the Pledges | 7 | ||||
5.
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Dividends and other payment claims | 7 | ||||
6.
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Exercise of voting rights | 7 | ||||
7.
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Enforcement of the Pledges | 8 | ||||
8.
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Maintenance of Liable Capital | 9 | ||||
9.
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No defences or recourse | 13 | ||||
10.
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Representations and warranties | 14 | ||||
11.
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Undertakings | 14 | ||||
12.
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Release | 16 | ||||
13.
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Indemnity | 16 | ||||
14.
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Duration and independence | 16 | ||||
15.
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Costs and expenses | 17 | ||||
16.
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Partial invalidity; Waiver | 17 | ||||
17.
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Amendments | 18 | ||||
18.
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Successors, assignments and transfers | 18 | ||||
19.
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Notices and their language | 18 | ||||
20.
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Applicable law; Jurisdiction | 18 | ||||
21.
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Notification | 19 | ||||
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Schedules | ||||||
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1.
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Original Lenders | 20 | ||||
2.
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Original Obligors | 21 | ||||
3.
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Addresses for notices | 22 |
FIRST SOLAR HOLDINGS GMBH, a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 40090 as pledgor (the Pledgor ) | ||
on one side; and | ||
(1) | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ as administrative agent (the Administrative Agent ). |
(A) | The Original Lenders (as defined below) have agreed to make available to the Borrowers (as defined below) certain revolving credit facilities and certain letters of credit on the terms of and subject to the Credit Agreement (as defined below). | |
(B) | It is a condition to the Original Lenders (as defined below) making the credit facilities available to the Borrowers (as defined below) that the Pledgor enters into this Agreement. |
1. | INTERPRETATION | |
1.1 | Definitions | |
In this Agreement: | ||
Additional Domestic Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Domestic Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Foreign Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Additional Foreign Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Agent means: |
(a) | the Syndication Agent; | ||
(b) | the Documentation Agent; and |
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(c) | the Administrative Agent. |
Ancillary Rights means: |
(a) | dividends, if any, payable on the Shares; | ||
(b) | liquidation proceeds ( Liquidationserlöse ), consideration for redemption ( Einziehungsentgelt ), repaid capital in case of a capital decrease ( Kapitalherabsetzung ), any compensation in case of termination ( Kündigung ) and/or withdrawal ( Austritt ) of a shareholder of the Pledged Company, the surplus in case of surrender ( Preisgabe ) and all other pecuniary claims associated with the Shares; | ||
(c) | the right to subscribe for newly issued shares. |
Assignment and Assumption Agreement means the assignment and assumption agreement, pursuant to which a Lender as assignor sells and assigns to a person as assignee , inter alia , any or all of the assignors rights and obligations in its capacity as a lender under the Credit Agreement. | ||
Borrower means any Domestic Borrower and any Foreign Borrower. | ||
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main, Germany. | ||
Company means First Solar, Inc., a corporation organised under the laws of Delaware, United States of America, having its business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America | ||
Credit Agreement means the New York law governed credit agreement dated on or about the date of this Agreement between the Company and the Original Foreign Borrowers on one side and, inter alia, the Administrative Agent and the Original Lenders together with each New Lender Supplement, and Assignment and Assumption Agreement relating thereto and any and each other agreement or instrument amending, modifying, extending, restating or supplementing it from time to time providing for an approximately $300,000,000 facility and an up to $100,000,000 Incremental Facility. | ||
Documentation Agent means The Royal Bank of Scotland plc. | ||
Dollar or $ means the lawful currency of the United States of America. | ||
Domestic Borrower means the Company and any Additional Domestic Borrower. | ||
Domestic Guarantor means any Original Domestic Guarantor and any Additional Domestic Guarantor. | ||
Euro, EUR or means the single currency of the participating member states of the European Union. | ||
Event of Default means an event (i) in which the commitments under the Credit Agreement will automatically immediately terminate and the amounts outstanding are immediately due and payable (ii) which would entitle the Administrative Agent (A) to, inter alia, prematurely terminate all or part of the total commitments under the Credit Agreement and/or (B) to declare that all or part of the amounts outstanding under the Credit Agreement are immediately due and payable or payable on |
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demand provided that any requirement for the giving of notice, the lapse of time or both has been satisfied. |
Existing Shares means the shares in the Pledged Company as set forth in Clause 2.1(b) (Pledged Shares) hereof. | ||
Foreign Borrower means any Original Foreign Borrower and any Additional Foreign Borrower. | ||
Foreign Guarantor means any Original Foreign Guarantor and any Additional Foreign Guarantor. | ||
Future Pledgee means any person or entity replacing the Administrative Agent in its function as administrative agent under the Credit Agreement. | ||
Future Shares means any and all shares in the capital of the Pledged Company issued in addition to the Existing Shares in whatever nominal value which the Pledgor may acquire in future in the event of an increase of the capital of the Pledged Company or otherwise. | ||
German Borrower means First Solar Manufacturing GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which becomes a borrower under the Credit Agreement after the date of the Credit Agreement. | ||
German Guarantor means First Solar GmbH and First Solar Holdings GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which is required to provide for a guarantee in connection with the Loan Documents after the date of the Credit Agreement. | ||
Group means the Company and its Subsidiaries from time to time. | ||
Guarantee and Collateral Agreement means the guarantee and collateral agreement dated on or about the date of this Agreement made between, inter alia , First Solar, Inc. and certain of its Subsidiaries in favour of the Administrative Agent which will be attached as Exhibit A to the Credit Agreement. | ||
Guarantor means any Domestic Guarantor and any Foreign Guarantor. | ||
Incremental Facility means any additional revolving loan provided either |
(i) | by a person that already is a lender under the Credit Agreement (defined as increasing lender therein) after having accepted an increase of its revolving commitment; or | ||
(ii) | by an assuming lender becoming a new lender under the Credit Agreement (defined as assuming lender therein) after having signed a New Lender Supplement, |
provided that the aggregate amount of the aggregate revolving loans will in no event exceed $400,000,000. | ||
Issuing Lender means the Original Issuing Lender and any other lender that has agreed in its sole discretion to issue a letter of credit to any Borrower or any other borrowing Subsidiary in connection with the Credit Agreement. | ||
Lender means an Original Lender and any person which becomes a lender under the Credit Agreement, including without limitation an assuming lender of an Incremental Facility, after |
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the date of this Agreement, unless, in each case, such person has ceased to be a lender under the Credit Agreement. |
Letter of Credit means any letter of credit issued or to be issued under the Credit Agreement, as such letter of credit may be amended, modified, restated, extended, renewed, increased, replaced or supplemented from time to time. | ||
Loan Document means |
(a) | the Credit Agreement; | ||
(b) | each Security Document; | ||
(c) | any Note; and | ||
(d) | any other document designated as such by the Administrative Agent and the Company. |
New Lender Supplement means a supplement to the Credit Agreement pursuant to which an assuming lender will become a party to the Credit Agreement with a revolving commitment in an amount agreed by such assuming lender. | ||
Note means any promissory note evidencing loans in accordance with the terms of the Credit Agreement, that may be amended, modified, supplemented, extended, renewed or replaced from time to time. | ||
Obligor means a Borrower and/or a Guarantor. | ||
Original Domestic Guarantors means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Domestic Guarantors. | ||
Original Foreign Borrower means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Borrowers. | ||
Original Foreign Guarantor means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Guarantors. | ||
Original Issuing Lender means JPMorgan Chase Bank, N.A. | ||
Original Lender means each of the financial institutions set out in Schedule 1 hereto in its capacity as original lender to the Company and the Original Foreign Borrowers. | ||
Original Pledgees means the Administrative Agent. | ||
Parties means the Pledgor, the Administrative Agent and the Pledgees. | ||
Person means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, any governmental authority or other entity of whatever nature. | ||
Pledged Company means First Solar Manufacturing GmbH, a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Frankfurt (Oder), Germany, under registration number HRB 11116. |
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Pledges means any and all pledges constituted pursuant to Clause 2.2 (a) of this Agreement. | ||
Pledgees means the Administrative Agent and any Future Pledgee. | ||
Secured Claims means all present and future rights and claims ( Ansprüche ) (whether actual or contingent and whether owned jointly or severally or in any other capacity whatsoever) (including claims from unjust enrichment ( ungerechtfertige Bereicherung ) and tort ( Delikt ))of any of the Secured Parties against any German Borrower and any German Guarantor under or in connection with the Loan Documents (or any of them) or any Letter of Credit, each as amended, varied, supplemented or novated from time to time, including without limitation, any increase of principal or interest, in each case together with all interest, costs, charges and expenses incurred by any Secured Party in connection with the protection and preservation or enforcement of its respective rights under the Loan Documents or any Letter of Credit. | ||
Secured Party means an Agent, the Lenders and any affiliate of any Lender to which any obligations under any Loan Document or under any Specified Swap Agreements are owed by any member of the Group, any Issuing Lender and any Swap Counterparty. | ||
Security means any and all collateral granted with a view to securing the Secured Claims. | ||
Security Document means |
(a) | the Guarantee and Collateral Agreement; and | ||
(b) | any other document evidencing or creating collateral over any asset of an Obligor to secure any obligation of an Obligor under or in connection with, inter alia , the Credit Agreement. |
Shares means the Existing Shares and the Future Shares. | ||
Specified Swap Agreement means any Swap Agreement entered into by the Company or any Guarantor and any lender or any affiliate of a lender in connection with the Credit Agreement . | ||
Subsidiary means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. And unless otherwise qualified, all references to a Subsidiary or to Subsidiaries in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company an entity of which a person owns directly or indirectly more than 50 percent (50%) of the voting capital or similar right of ownership. | ||
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; except for any phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any of its Subsidiaries. | ||
Swap Counterparty means any person or entity providing a Specified Swap Agreement. | ||
Syndication Agent means Credit Suisse, Cayman Islands Branch. |
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1.2 | Where the context so admits, the singular includes the plural and vice versa. | |
1.3 | The headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. | |
1.4 | Any reference in this Agreement to a defined document is a reference to that defined document as amended, varied, supplemented or novated from time to time. | |
1.5 | Any reference to a Party or other person (including any Obligor and any Secured Party) includes its respective successor(s) in law (including any universal successor ( Gesamtrechtsnachfolger ) of that person by way of merger ( Verschmelzung ), any other reorganisation contemplated in the German Transformation Act ( Umwandlungsgesetz ) or otherwise) and any assign(s) and transferee(s) of that person and, to the extent legally possible, any legal provision to the contrary is waived. | |
2. | PLEDGE | |
2.1 | Pledged Shares |
(a) | The Pledgor is at the date of this Agreement the sole shareholder of the Pledged Company. | ||
(b) | The total registered share capital ( Stammkapital ) of the Pledged Company amounts to EUR 25,000 (in words: twenty five thousand Euro). The registered share capital of the Pledged Company is represented by two shares: |
(i) | one share amounting to EUR 24,000 (in words: twenty four thousand euro) (the Existing Share 1 ), and | ||
(ii) | one share amounting to EUR 1,000 (in words: one thousand euro) (the Existing Share 2 ). |
which are both held by the Pledgor. |
The Existing Share 1 and the Existing Share 2 are hereinafter referred to together as the Existing Shares . At present, there are no other shares in the Pledged Company. |
(c) | The Existing Shares are fully paid up. As at the date hereof, there is no obligation for the Pledgor to make additional contributions to the Pledged Company. |
2.2 | Constitution of Pledge |
(a) | The Pledgor hereby pledges the Shares and any and all Ancillary Rights pertaining thereto to each of the Original Pledgees and to each Future Pledgee for their rateable and equally ranking interest as security. | ||
(b) | Each of the Original Pledgees hereby accepts the Pledges. In addition the Administrative Agent accepts the Pledges for and on behalf of each Future Pledgee hereunder as proxy without power of attorney ( Vertreter ohne Vertretungsmacht ). Each Future Pledgee ratifies and confirms such acceptance so made by the Administrative Agent on its behalf by accepting the transfer or assignment of any Secured Claim and/or by becoming a party to a Loan Document, thereby becoming a Pledgee. All Parties confirm that the validity of any of the Pledges constituted hereunder is not affected by the Administrative Agent acting as proxy without power of attorney for any Future Pledgee. For the avoidance of doubt, the |
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Parties agree that nothing in this Agreement shall exclude a transfer of all or part of the Pledges by operation of law. |
3. | INDEPENDENT PLEDGES | |
The validity and effect of each of the Pledges shall be independent from the validity and the effect of any of the other Pledges created hereunder. The Pledges to each of the Pledgees shall be separate and individual pledges. Each of the Pledges shall rank pari passu to each other Pledge created hereunder. | ||
4. | PURPOSE OF THE PLEDGES | |
The Pledges are constituted in order to secure the full and irrevocable satisfaction and discharge of any and all Secured Claims. | ||
The Parties hereby expressly agree that the provisions of section 1210 para 1 sentence 2 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall not apply to this Agreement and the Pledges. | ||
5. | DIVIDENDS AND OTHER PAYMENT CLAIMS | |
5.1 | Entitlement to receive dividend payments and to exercise other Ancillary Rights | |
Notwithstanding that the dividends and the other Ancillary Rights are pledged pursuant to this Agreement, the Pledgor shall be entitled to (i) receive and retain all dividend payments and all other payments in respect of the Shares and (ii) receive, retain and exercise all other Ancillary Rights unless an Event of Default has occurred, is continuing and the Administrative Agent would be entitled to enforce any of the Pledges pursuant to Clause 7 of this Agreement. | ||
5.2 | Pledgees rights | |
Notwithstanding Clause 5.1 (Entitlement to receive dividend payments) above: |
(a) | dividends paid or payable other than in cash and other property received, receivable or otherwise distributed in respect of or in exchange for the Shares; | ||
(b) | dividends or other distributions paid or payable in cash in respect of the Shares in connection with (i) the partial or total liquidation; (ii) dissolution; or (iii) in connection with the reduction of capital ( Kapitalherabsetzung ); and | ||
(c) | cash paid, payable or otherwise distributed in respect of principal of, or in redemption of, or in exchange for the Shares, |
shall be made available and shall forthwith be delivered to the Administrative Agent for itself and for the Pledgees to be held as security for the Secured Claims and shall, if received by the Pledgor, be received as holder for the Pledgees and segregated from the other property or funds of the Pledgor and be forthwith delivered to the Administrative Agent for itself and for the Pledgees as security for the Secured Claims in the same form as so received (with any necessary endorsement). Any further reaching obligations of the Pledged Company and/or the Pledgor in respect of the use of profits and/or dividends shall not be affected by this Clause 5.2. |
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6. | EXERCISE OF VOTING RIGHTS | |
6.1 | Voting Rights | |
The voting rights resulting from the Shares remain with the Pledgor. The Pledgor, however, shall at all times until the full and irrevocable satisfaction and discharge of all Secured Claims or the release of the Pledges be required, in exercising its voting rights, to act in good faith to ensure that the existence, validity or enforceability of the Pledges is not adversely affected. | ||
6.2 | Impairment | |
The Pledgor shall not take, or participate in, any action which can be reasonably be expected to impair, or to be for any other reason inconsistent with, the security interest of the Pledgees or the security purpose as described in Clause 4 (Purpose of the Pledges) hereof or to defeat, impair or circumvent the rights of the Pledgees hereunder. | ||
6.3 | Information by the Pledgor | |
The Pledgor shall inform the Administrative Agent promptly ( unverzüglich ) of all other actions concerning the Pledged Company which could be reasonably expected to materially adversely affect the Pledges (or any part thereof). In particular, the Pledgor shall notify the Administrative Agent forthwith of: |
(a) | any shareholders meeting at which a resolution is intended to be adopted which could have a material adverse effect upon the Pledges. In any event, the Pledgor shall procure that the Administrative Agent will upon request promptly ( unverzüglich ) receive, as soon as they are available, a copy of the convocation notice for such ordinary or extraordinary shareholders meeting setting forth the agenda and all applications and decisions to be taken, and the minutes of any such shareholders meeting; and | ||
(b) | any resolution which is intended to be adopted outside a shareholders meeting and which could have a material adverse effect upon the Pledges and provide to the Administrative Agent a draft of any such resolution. In any event, the Administrative Agent shall upon request promptly ( unverzüglich ) receive, as soon as it is available, a copy of any such resolution. |
7. | ENFORCEMENT OF THE PLEDGES | |
7.1 | Pledgees rights | |
(a) | At any time after the occurrence and during the continuation of an Event of Default if, in addition, the requirements set forth in sections 1273, 1204 et seq. of the German Civil Code ( Bürgerliches Gesetzbuch ) with regard to the enforcement of pledges are met ( Pfandreife ), the Pledgees (or any of them) acting through the Administrative Agent shall be entitled to enforce the Pledges (or any part thereof) by way of public auction ( öffentliche Versteigerung ) and/or in any other way permitted under German law, in all cases notwithstanding section 1277 of the German Civil Code without any enforceable judgment or other instrument ( vollstreckbarer Titel ). | |
(b) | The Pledgees (or any of them) acting through the Administrative Agent shall notify the Pledgor of the intention to realise the Pledges (or any part thereof) not less than 1 (one) week before the date on which the Pledges (or any such part thereof) are intended to be enforced. Such notice period is not necessary if (i) the Pledgor has generally ceased to make payments, (ii) an application for the commencement of insolvency proceedings over the assets of the Pledgor is filed (and not withdrawn) |
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by the Pledgor or by any third person and, in the latter case, it is not without delay established to the satisfaction of the Pledgees that the application is obviously frivolous or (iii) the observance of such notice period can reasonably be expected to adversely affect the enforceability of the Pledges (or any part thereof). The Pledgor hereby expressly agrees that 1 (one) weeks prior written notice to it of the place and time of any public auction held in accordance with Clause 7.1 (a) (Pledgees rights) above shall be sufficient. Such public auction may be held at any place in the Federal Republic of Germany which will be determined by the Administrative Agent. | ||
(c) | If the Administrative Agent seeks to enforce the Pledges (or any part thereof) pursuant to, and in accordance with Clause 7.1(a) (Pledgees Rights) above, the Pledgor shall, at its own expense, render forthwith all assistance necessary in order to facilitate the prompt realisation of the Shares (or any of them) and/or the exercise by the Pledgees (or any of them) acting through the Administrative Agent of any other right a Pledgee may have pursuant to this Agreement or statutory German law. |
(d) | In case of an enforcement of the Pledges or if the Pledgor pays or repays any of the Secured Claims owed by any other Obligor, section 1225 of the German Civil Code ( Bürgerliches Gesetzbuch ) (Legal subrogation of claims to a pledgor ( Forderungsübergang auf den Verpfänder )) shall not apply and no rights or claims of the Pledgees shall pass to the Pledgor until the full and irrevocable satisfaction and discharge of all Secured Claims. | |
(e) | The Pledgees (or any of them) acting through Administrative Agent may determine which part of the Security, if applicable, shall be used to satisfy the Secured Claims. | |
7.2 | Dividends | |
Provided that the requirements for enforcement referred to under Clause 7.1(a) (Pledgees Rights) above are met and an enforcement notice has been served in accordance with Clause 7.1 (b), all dividends and all other payments based on similar ancillary rights attributed to the Shares may be applied by the Pledgees in satisfaction in whole or in part of the Secured Claims notwithstanding a Pledgees right to treat such payments as additional collateral. Any such payments which are made to the Pledgor after the time the Pledges have become enforceable must be paid to the Administrative Agent. | ||
7.3 | Voting rights | |
Even if the requirements for enforcement referred to under Clause 7.1(a) (Pledgees Rights) above are met, the Administrative Agent shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the Shares for itself or on behalf of any of the Pledgees. However, the Pledgor shall, upon the occurrence of an event which gives the Pledgees the right to enforce the Pledges (or any part thereof) pursuant to Clause 7.1, have the obligations and the Pledgees shall have the rights set forth in Clause 6.3 (Information by the Pledgor) of this Agreement regardless of which resolutions are intended to be adopted. | ||
7.4 | Application of proceeds | |
(a) | The proceeds resulting from the enforcement of the Pledges (or any part thereof) shall be applied by the Administrative Agent towards the satisfaction of the Secured Claims. | |
(b) | Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgees shall be entitled to treat all enforcement proceeds, held by the Administrative Agent separate from its assets on a separate trust account for the benefit of the Secured Parties and after the full and irrevocable satisfaction and discharge for the benefit of the Pledgor, as additional collateral for the Secured Claims, notwithstanding their right to seek satisfaction from such proceeds at any time. |
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(c) | After the full and irrevocable satisfaction and discharge of all Secured Claims any remaining proceeds resulting from the enforcement of the Pledges (or any part thereof) shall be transferred to the Pledgor at the cost and expense of the Pledgor. | |
8. | MAINTENANCE OF LIABLE CAPITAL | |
For the purpose of this Clause 8 (Maintenance of Liable Capital): | ||
Up-Stream and/or Cross-Stream German Pledge means in relation to a German Pledgor any Pledge directly or indirectly securing the obligations or liabilities of any member of the Relevant Group that is not a direct or indirect Relevant Subsidiary of such German Pledgor. | ||
Relevant Group refers to a German Pledgor and any affiliated company ( verbundenes Unternehmen ) of such German Pledgor within the meaning of §§ 15 et. seq. of the German Stock Corporation Act ( Aktiengesetz ). | ||
Relevant Subsidiary means an entity of which a person owns directly or indirectly more than 50 percent (50%) of the voting capital or similar right of ownership. | ||
8.1 | Each of the Administrative Agent and the other Secured Parties agrees not to enforce the Pledge granted under this Agreement against any Pledgor incorporated in Germany (each, a German Pledgor ) irrespective of whether the relevant German Pledgor is at the time of enforcement incorporated as |
| a limited liability company ( Gesellschaft mit beschränkter Haftung ) (a German GmbH Pledgor ), or | ||
| a limited partnership ( Kommanditgesellschaft ) of which the general partner ( Komplementär ) is a limited liability company (a German GmbH & Co. KG Pledgor ), |
if and to the extent the Pledge granted under this Agreement is an Up-Stream and/or Cross-Stream German Pledge in relation to such German Pledgor, and (ii) if and to the extent the enforcement of such Up-Stream and/or Cross-Stream German Pledge would cause or constitute |
(a) | the German GmbH Pledgors, or in the case of the German GmbH & Co. KG Pledgor its general partners, net assets (the calculation of which shall take into account the captions reflected in § 266 (2) A, B and C of the German Commercial Code ( Handelsgesetzbuch )) less the German GmbH Pledgors, or in case of a German GmbH & Co. KG Pledgor its general partners, liabilities, provisions and liability reserves (the calculation of which shall take into account the captions reflected in § 266 (3) B, C and D of the German Commercial Code) (the Net Assets ) to be less than the registered share capital ( Stammkapital ) of the German GmbH Pledgor, or in the case of a German GmbH & Co. KG Pledgor of the registered share capital of its general partner ( Begründung einer Unterbilanz ); or | ||
(b) | an increase of a shortfall, if the Net Assets of the German GmbH Pledgor, or in the case of a German GmbH & Co. KG Pledgor, of its general partner, already fall short of the amount of the registered share capital ( Vertiefung einer Unterbilanz ); and/or | ||
(c) | a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ). |
8.2 | For the purposes of the calculation of the Net Assets in Clause 8.1 above the following items shall be adjusted as follows: |
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(a) | the amount of an increase in the registered share capital of the German GmbH Pledgor, or in the case of a German GmbH & Co. KG Pledgor of its general partner, |
(i) | that has been effected out of retained earnings ( Kapitalerhöhung aus Gesellschaftsmitteln ) without the prior written consent of the Administrative Agent after the date of the Credit Agreement; or | ||
(ii) | any amount of an increase in the registered share capital if and to the extent that it has not been fully paid in, |
shall be deducted from the registered share capital; |
(b) | any loans and other contractual liabilities incurred by the German GmbH Pledgor, or in the case of a German GmbH & Co. KG, its general partner in violation of the Credit Agreement after the date of the Credit Agreement shall be disregarded as liabilities; | ||
and | |||
(c) | the Net Assets shall take into account reasonable costs of the Auditors Determination (as defined below), either as a reduction of assets or an increase of liabilities. |
8.3 | Any German Pledgor, and in case of a German GmbH & Co. KG Pledgor its general partner, shall realise, to the extent legally permitted and commercially justifiable, in a situation where after enforcement of the Pledge the German GmbH Pledgor, or in the case of a German GmbH & Co. KG Pledgor its general partner, would not have Net Assets in excess of its respective registered share capital, any and all of its assets, and in case of a German GmbH & Co. KG Pledgor its general partners assets, that are shown in the respective balance sheet with a book value ( Buchwert ) that is significantly lower than the market value of the asset if such asset is not necessary for the relevant German Pledgors, and in case of a German GmbH & Co. KG Pledgor its general partners, business ( betriebsnotwendig ). | |
8.4 | Subject to Clause 8.1, after the receipt of a written demand by the Administrative Agent and/or any other Secured Party to make a payment under any Pledge granted under this Agreement (the Enforcement Notice ), a copy of the relevant determination shall be drawn up in good faith (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) and made available to the Administrative Agent by the relevant German Pledgor (the Management Determination ) within 10 (ten) Business Days of the German Pledgors receipt of the Enforcement Notice stating |
(a) | if and to what extent the Pledge granted hereunder is an Up-Stream and/or Cross-Stream German Pledge; | ||
(b) | which amount of such Up-Stream and/or Cross-Stream German Pledge can be enforced without causing the Net Assets of the relevant German Pledgor, or, where the Pledgor is a German GmbH & Co KG Pledgor, its general partner, to fall (or to fall further) below its respective registered share capital (taking into account the adjustments set out in Clauses 8.2 above and the value realisation pursuant to Clause 8.3 above), and | ||
(c) | which amount of such Up-Stream and/or Cross-Stream German Pledge can be enforced without constituting a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ), |
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(such amount calculated according to (b) (c), the Recovery Amount ). Subject to Clause 8.6 below, the Secured Parties shall only be entitled to enforce the amount of any Up-Stream and/or Cross-Stream German Pledge up to the Recovery Amount. | ||
8.5 | Following the Administrative Agents receipt of a Management Determination, the relevant German Pledgor shall provide within 15 (fifteen) Business Days a determination by auditors of international standing and reputation appointed by the relevant German Pledgor or, in the case of a GmbH & Co. KG, its general partner (the Auditors Determination ) of (i) the Recovery Amount (such determination to take into account the adjustments set out in Clauses 8.2 and the value realisation pursuant to Clause 8.3 above) and (ii) an estimate of the liabilities, damages, costs, fees and expenses reasonably expected to result from a liquidation of the relevant German Pledgor, and such German Pledgor shall, not later than 10 (ten) Business Days after receipt by it of such Auditors Determination, pay to the relevant Secured Parties the additional amount (if any) by which the Recovery Amount determined in the Auditors Determination exceeds the amount (if any) paid to any of the Secured Parties pursuant to Clause 8.4 above, and the Secured Parties shall repay any enforcement amount received in excess of the Recovery Amount determined in the Auditors Determination (if any) to the respective German Pledgor or, in the case of a German GmbH & Co. KG Pledgor, its general partner. | |
8.6 | If (i) the Administrative Agent disagrees with the Auditors Determination or (ii) the relevant German Pledgor (or in the case of a German GmbH & Co KG Pledgor, its general partner) fails to deliver an Management Determination within 10 (ten) Business Days of the German Pledgors receipt of the Enforcement Notice or (iii) an Auditors Determination within 15 (fifteen) Business Days following the Administrative Agents receipt of a Management Determination, the Secured Parties shall be entitled to further pursue in court their payment claims under this Pledge granted by the respective German Pledgor in excess of the amounts paid or payable pursuant to Clauses 8.4 and 8.5 above, by claiming in court that demanding payment under the German Pledge against the relevant German Pledgor does not violate §§ 30, 31 of the German Limited Liability Companies Act and would not constitute a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ) (taking into account the calculation of the Net Assets as set out in Clause 8.1 and the adjustments as set out in Clause 8.2 and the value realisation pursuant to Clause 8.3 above). Notwithstanding the foregoing, and for the avoidance of doubt, no German Pledgor shall be obliged to pay any such amount on demand. | |
8.7 | The limitations set out in Clause 8.1 (a) and (b) and in Clause 8.4 (b) shall not apply if and to the extent the Pledge by the relevant German Pledgor secures any amounts borrowed under the Credit Agreement which are lent or on-lent to such German Pledgor or any of its direct or indirect owned Relevant Subsidiaries from time to time and have not been repaid. | |
8.8 | The limitations provided for in Clause 8.1 (a) and (b) and in Clause 8.4 (b) shall not apply so long as: |
(a) | the affected German Pledgor (or, in the case of a GmbH & Co. KG, its general partner) is a party to a profit and loss sharing agreement ( Gewinnabführungsvertrag ) and/or a domination agreement ( Beherrschungsvertrag ) where such German Pledgor (or, in the case of a GmbH & Co. KG, its general partner) is the dominated entity ( beherrschtes Unternehmen ) and/or the entity being obliged to share its profits with the other party of such profit and loss sharing agreement; it being understood that in such case the Secured Parties shall only be entitled to enforce the amount of any Up-Stream German Pledge and/or Cross-Stream German Pledge if and to the extent that it may reasonably be expected (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) that such German Pledgor (or, where the Pledgor is a German GmbH & Co KG Pledgor, its general |
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partner) is able to recover the annual loss ( Jahresfehlbetrag ) which the dominating entity is obliged to pay pursuant to § 302 of the German Stock Corporation Act ( Aktiengesetz ). For the purpose of the determination of the amount to be recovered under this Clause 8.8, the provisions set forth under Clauses 8.4, 8.5 and 8.6 above shall apply mutatis mutandis ; and/or | |||
(b) | the relevant German Pledgors Pledge granted under this Agreement being covered by a valuable consideration or recourse claim ( vollwertiger Gegenleistungs- oder Rückgewähranspruch ) within the meaning of § 30 (1) Sentence 2 of the German Limited Liability Companies Act; and/or | ||
(c) | the relevant German Pledgors payment under this Agreement discharges a shareholder loan or a claim of similar effect within the meaning of § 30 (1) Sentence 3 of the German Limited Liability Companies Act. |
8.9 | For the avoidance of doubt, any balance sheet to be prepared for the determination of the Net Assets shall be prepared in accordance with relevant accounting principles. | |
8.10 | Nothing in this Clause 8 (Maintenance of Liable Capital) shall be interpreted as a restriction or limitation of the enforcement of the Pledge granted under this Agreement if and to the extent the Pledge granted under this Agreement secures own obligations of the relevant German Pledgor or obligations of any of its direct or indirect Relevant Subsidiaries. | |
9. | NO DEFENCES OR RECOURSE | |
9.1 | The Pledgor hereby waives any rights of revocation ( Anfechtbarkeit ) and set-off ( Aufrechenbarkeit ) it may have pursuant to sections 1211 and 770(1) and (2) of the German Civil Code ( Bürgerliches Gesetzbuch ) save to the extent that the relevant Secured Claims can be discharged by way of set off against counterclaims which are undisputed ( unbestritten ) or ascertained by unappealable judgment ( rechtskräftig festgestellt ) and any defence of failure to pursue remedies ( Einrede der Vorausklage ) it may have. | |
9.2 | To the extent legally possible, the Pledgor hereby expressly waives the defences exercisable by it pursuant to section 1211 para. 1 sentence 1 alternative 1 of the German Civil Code ( Bürgerliches Gesetzbuch ) which the principal debtor of any Secured Claim has against any Secured Claim ( Einreden des Hauptschuldners ). | |
9.3 | In addition to Clause 7. 1(d) (Pledgees rights) of this Agreement, the Parties hereby agree that until the full and irrevocable satisfaction and discharge of all Secured Claims no rights and claims shall pass to or otherwise arise for the benefit of the Pledgor by subrogation ( gesetzlicher Übergang von Forderungen und Rechten ) or otherwise, including any recourse claims, indemnification claims, claims arising from unjust enrichment ( ungerechtfertigte Bereicherung ) and any right to demand the assignment and/or transfer of any Secured Claim and/or Security, against any Obligor, grantor of Security or Secured Party (as the case may be) which it may (but for this Clause 8) acquire as a result of: |
(i) | a payment or repayment by the Pledgor of any debt of any other Obligor under any of the Loan Documents; or | ||
(ii) | in case of enforcement of the Pledges (or any part thereof). |
Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgor furthermore undertakes not to exercise ( pactum de non petendo ), and not to purport to exercise, any |
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such rights and claims which may pass to it or otherwise arise for its benefit notwithstanding this Clause 8 or would pass to it or otherwise arise for its benefit but for this Clause 8. | ||
The provisions under this Clause 8.3 shall not apply with regard to a recourse claim, if the parties agreed to allow such recourse of the Pledgor against any of the other Parties thereby taking at all times into account the terms of the Credit Agreement and any other Loan Document. |
10. | REPRESENTATIONS AND WARRANTIES | |
The Pledgor represents and warrants ( selbständiges Garantieversprechen im Sinne von § 311 Bürgerliches Gesetzbuch ) to the Pledgees that on the date of this Agreement: |
(a) | both the Pledgor and the Pledged Company are validly existing and each of them is neither: |
(i) | unable to pay its debts when they fall due ( zahlungsunfähig ) within the meaning of section 17 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(ii) | in a state of imminent inability to pay its debts when they fall due ( drohende Zahlungsunfähigkeit ) within the meaning of section 18 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iii) | over-indebted ( überschuldet ) within the meaning of section 19 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iv) | subject to any insolvency proceedings ( Insolvenzverfahren ) (or other or similar proceedings under the laws of any other applicable jurisdiction) or any refusal of opening insolvency proceedings for insufficiency of assets ( Abweisung mangels Masse ) (within the meaning of section 26 of the German Insolvency Code ( Insolvenzordnung )); |
(b) | the Existing Shares are the only shares ( Geschäftsanteile ) in the Pledged Company in existence at the date hereof; | ||
(c) | the Pledgor is not subject to any restriction of any kind with regard to the transfer of, or the granting of a pledge in, or any other disposal of, the Existing Shares, or with regard to the right to receive dividends on the Existing Shares; | ||
(d) | the Pledgor is the sole legal and beneficial owner of the Shares and the Shares have not been transferred to or encumbered for the benefit of any third person and are not subject to any other rights of third parties (including, but not limited to, any pre-emption rights of third parties for shares in the Pledged Company); | ||
(e) | the Plegor is entitled to participate in the dividends of the Pledged Company free of any and all in-rem rights of others; | ||
(f) | all necessary corporate action has been taken to authorise the entry into and delivery of this Agreement; | ||
(g) | the Existing Shares are fully paid and there is no obligation for a shareholder to make additional contributions ( keine Nachschusspflicht ); and | ||
(h) | no litigation, arbitration or administrative proceedings, which could reasonably be expected to have a material adverse effect, are presently in progress, pending or threatened which |
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restrain, or threaten to restrain, the Pledgor in respect of the entry into, the performance of, or compliance with, any of its obligations pursuant to this Agreement. |
11. | UNDERTAKINGS | |
11.1 | General undertakings | |
The Pledgor undertakes: |
(a) | if any amount in excess of US$100,000 payable or security transferrable under or in connection with this Agreement shall be or become evidenced by any authorisation, approval, licence and consent such authorisation, approval, licence and consent shall be promptly delivered to the Administrative Agent, duly indorsed in a manner satisfactory to the Administrative Agent; | ||
(b) | to maintain the security interest created by this Agreement as a perfected security interest and to defend such security interest against the claims and demands of all persons whomsoever subject to the rights of the Pledgor under the Loan Documents to dispose of the Pledged Shares; | ||
(c) | at any time and from time to time, upon the written request of the Administrative Agent and at the sole expense of such Plegor, to promptly ( unverzüglich ) and duly execute and deliver, and have recorded such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, execute one or more collateral agreements (including assignments and releases) to obtain or preserve the security interest created by this Agreement in favour of the Administrative Agent and the other Secured Parties | ||
(d) | to notify the Administrative Agent promptly ( unverzüglich ) of any change in the shareholding in the Pledged Company or of any change in the shareholders agreement ( Gesellschaftsvertrag ); | ||
(e) | to inform the Administrative Agent promptly ( unverzüglich ) of any attachments ( Pfändung ) regarding any and all of the Shares or any other measures which can reasonably be expected to impair or jeopardise the Pledgees rights relating to the Shares. In the event of an attachment, the Pledgor undertakes to forward to the Administrative Agent promptly ( unverzüglich ) a copy of the attachment order ( Pfändungsbeschluss ), any third party debt order ( Überweisungsbeschluss ) and all other documents necessary for a defence against the attachment. The Pledgor shall inform the attaching creditor promptly ( unverzüglich ) about the Pledgees security interests; | ||
(f) | to fully pay up the Future Shares and to make all necessary additional contributions, and, if and to the extent the Existing Shares are not fully paid up at the date hereof, to fully pay up the Existing Shares promptly ( unverzüglich ) upon the execution of this Agreement and to procure that there will be no obligation for a shareholder to make additional contributions; | ||
(g) | not to create or permit to subsist any encumbrance over all or any of the Shares or any interest therein or otherwise sell, transfer or dispose of the whole or any part of the Shares or any interest therein; | ||
(h) | to refrain from any acts or omissions which can reasonably be expected have an adverse effect on the validity or enforceability of the Pledges (or any part thereof); and |
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11.2 | Pledge over all Shares | |
The Administrative Agent may at all times for itself and for the other Pledgees request to hold a pledge over all Shares held by the Pledgor (in particular, without limitation, in the case of a merger or conversion an equivalent security interest over the shares or interests in the surviving or, as the case may be, the new company) in accordance with all terms of this Agreement. | ||
12. | RELEASE | |
12.1 | Confirmation | |
After the full and irrevocable satisfaction and discharge of all Secured Claims the Administrative Agent shall confirm in writing to the Pledgor upon the Pledgors request that the Pledges have ceased to exist and/or, as applicable, the release of the Pledges ( Pfandaufgabe ), at the cost and expense of the Pledgor (if any). | ||
12.2 | Release of Security | |
Even prior to the full and irrevocable satisfaction and discharge of all Secured Claims, the Pledgees are obliged to release upon the Pledgors request, and at the Pledgors cost and expense, all or part of the Security insofar as the realisable value of the Security exceeds, not only temporarily, the Secured Claims by more than 10%. The Administrative Agent may, at its discretion, determine which part of the Security shall be released but shall reasonably take into account the legitimate interest of the Pledgor and the Pledged Company. | ||
13. | INDEMNITY | |
13.1 | Liability for Damages | |
Neither the Administrative Agent nor any of the other Pledgees shall be liable for any loss or damage suffered by the Pledgor save in respect of such loss or damage which is suffered as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent or any of the other Pledgees. | ||
13.2 | Indemnification | |
The Pledgor shall indemnify and hold the Administrative Agent and each of the other Pledgees harmless and keep them indemnified from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement, which may be incurred by or made against the Administrative Agent and/or any of the other Pledgees for anything done or omitted in the exercise or purported exercise of the powers contained in this Agreement, provided , that the Pledgor shall have no obligation hereunder to the extent that such liabilities, obligations, losses, damages, penalties, actions, judgments suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement are incurred by or made against the Administrative Agent or any of the other Pledgees as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent or any of the other Pledgees. | ||
Any reference in this paragraph to the Administrative Agent and/or the other Pledgees includes any officer, director, employee, agent, advisor (including any attorney) or other person appointed by the |
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Administrative Agent or any other Pledgee in accordance with the provisions of this Agreement and the other Loan Documents. |
14. | DURATION AND INDEPENDENCE | |
14.1 | Duration | |
This Agreement shall remain in full force and effect until the full and irrevocable satisfaction and discharge of the Secured Claims. The Pledges shall not cease to exist if any payments made in satisfaction of the Secured Claims have only temporarily discharged the Secured Claims. | ||
14.2 | Continuing Security | |
This Agreement shall create a continuing Security and no change or amendment whatsoever in any Loan Document or in any document or agreement related to it shall affect the validity or limit the scope of this Agreement or the obligations which are imposed on the Pledgor pursuant to it. | ||
The Pledgor hereby agrees that the Pledges shall not be affected by any assumption of liability ( Schuldübernahme ) in relation to any of the Secured Claims and hereby expressly consents ( willigt ein ) to any such transfer and/or assumption of liability within the meaning of section 418 para. 1 sentence 3 of the German Civil Code ( Bürgerliches Gesetzbuch ) (including when applied by analogy). | ||
14.3 | Independence | |
This Agreement and the Pledges are independent from all other security interests or guarantees which may have been or will be given to the Administrative Agent and/or any of the other Secured Parties with respect to any obligation of the Obligors (or any of them). None of such other security interests or guarantees shall in any way prejudice, or be prejudiced by, this Agreement or the Pledges. | ||
15. | COSTS AND EXPENSES | |
The Pledgor shall promptly ( unverzüglich ) pay or reimburse each Pledgee the amount of any and all costs, charges, fees and expenses (including fees for legal advisers) incurred by it in connection with the enforcement or preservation of any rights under this Agreement or any waiver in relation thereto, together in each case with any applicable value added tax or other taxes. Any notarial fees and expenses incurred in connection with this Agreement shall be borne by the Pledgor. | ||
16. | PARTIAL INVALIDITY; WAIVER | |
16.1 | Invalidity | |
If any provision of this Agreement or part thereof should be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions hereof. The invalid or unenforceable provision shall be replaced by that provision which best meets the intent of the replaced provision. This shall apply analogously with respect to anything which is accidentally not regulated in this Agreement ( Vertragslücke ). § 139 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall be waived hereby. | ||
In particular the Pledges shall not be affected and shall in any event extend to any and all of the Shares held by the Pledgor in the Pledged Company even if the number or nominal value of the |
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Existing Shares or the aggregate liable capital of the Pledged Company as stated in Clause 2.1(b) (Pledged Shares) are inaccurate and deviate from the actual facts. |
16.2 | Waiver | |
No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent or the other Pledgees (or any of them), any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies provided hereunder are cumulative and not exclusive of any rights or remedies provided by law. | ||
17. | AMENDMENTS | |
Changes to and amendments of this Agreement including this Clause 17 must be made in writing. | ||
18. | SUCCESSORS, ASSIGNMENTS AND TRANSFERS | |
This Agreement shall be binding upon the Parties hereto and, to the extent legally possible, their respective successor(s) in law. Each Pledgee shall, to the extent legally possible, be entitled to assign or otherwise transfer (i) any and all of its rights and (ii) (only with regard to any person which becomes a lender or an administrative agent under the Credit Agreement after the date of this Agreement) any and all of its duties pursuant to this Agreement to third parties. The Pledgor is entitled to any such transfer with the prior written consent of the Pledgees (acting through the Administrative Agent, as the case may be) only. | ||
19. | NOTICES AND THEIR LANGUAGE | |
19.1 | Notices | |
Any notice or other communication under or in connection with this Agreement to the Pledgor or the Administrative Agent and/or any of the other Pledgees shall be in writing (unless notarisation is required) and shall be delivered personally, by post, email or fax and shall be sent to the address, email address or fax number of the party, and for the attention of the individual or department, as set forth in Schedule 3 hereto or such other address, email address or fax number as is notified in writing by that Party for this purpose to the Facility Agent, the Administrative Agent or, as the case may be, the Pledgor, from time to time. | ||
19.2 | Language | |
Save for the notice pursuant to section 1280 of the German Civil Code ( Bürgerliches Gesetzbuch ) and unless otherwise required by statutory German law or unless otherwise agreed in writing from time to time, any notice or other communication under or in connection with this Agreement shall be made in the English language or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail (unless the document is a statutory or other official document), except that where a German translation of a legal term appears in such text, the German translation shall prevail. | ||
20. | APPLICABLE LAW; JURISDICTION | |
20.1 | Governing Law | |
This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. |
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20.2 | Jurisdiction | |
The place of jurisdiction for all Parties shall be Frankfurt am Main, Federal Republic of Germany. The Administrative Agent and the other Pledgees, however, shall also be entitled to take legal action against the Pledgor before any other competent court of law having jurisdiction over the Pledgor or any of its assets. |
21. | NOTIFICATION | |
The Pledgor and the Pledgees hereby instruct and the Pledgor authorises the undersigned Notary Public to notify the Pledged Company in the Pledgors name of the Pledges by means of forwarding a certified copy of this Agreement to the Pledged Company by registered mail (return receipt requested). |
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To the Pledgor:
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First Solar Holdings GmbH | |
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Rheinstr. 4B
55116 Mainz |
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Germany | |
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Attn.: Anja Lange | |
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David Brady
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Fax: +49(0)6131-1443-500 | |
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+1-602-414-9462
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Email: alange@firstsolar.com | |
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dbrady@firstsolar.com
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To the Administrative Agent:
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JPMorgan Chase Bank, N.A.
10 South Dearborn, 7 th Floor Chicago, IL 60603 |
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Attention: Creston Wren
Telecopy: 001 (312) 385-7097 Telephone: 001 (312) 385-7016 |
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With a copy to
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JPMorgan Chase Bank, N.A.
125 London Wall London EC2Y 5AJ |
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Attention: Lucy Chick
Telecopy: +44(0)20 7325 6835 Telephone: +44(0)20 7325 6926 |
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With a copy to
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JPMorgan Chase Bank, N.A.
201 North Central Avenue, Floor 21Phoenix, AZ 85004 |
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Attention: Mark Chambers
Telecopy: 001 (602) 221-1502 Telephone: 001 (602) 221-2290 |
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Page | ||||||
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SECTION 1.
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DEFINED TERMS | 3 | ||||
1.1
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Definitions | 3 | ||||
1.2
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Other Definitional Provisions | 6 | ||||
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SECTION 2.
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GUARANTEE | 6 | ||||
2.1
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Guarantee of Company Obligations | 6 | ||||
2.2
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Guarantee of Borrowing Subsidiaries Obligations | 7 | ||||
2.3
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Right of Contribution | 7 | ||||
2.4
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No Subrogation | 8 | ||||
2.5
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Amendments, etc. with respect to the Company Obligations and the Borrowing Subsidiaries Obligations | 8 | ||||
2.6
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Guarantee Absolute and Unconditional | 9 | ||||
2.7
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Reinstatement | 9 | ||||
2.8
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Payments | 10 | ||||
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SECTION 3.
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GRANT OF SECURITY INTEREST | 10 | ||||
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SECTION 4.
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REPRESENTATIONS AND WARRANTIES | 10 | ||||
4.1
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Title; No Other Liens | 10 | ||||
4.2
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Perfected First Priority Liens | 10 | ||||
4.3
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Jurisdiction of Organization; Chief Executive Office | 11 | ||||
4.4
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Investment Property | 11 | ||||
4.5
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Intercompany Receivables | 11 | ||||
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SECTION 5.
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COVENANTS | 11 | ||||
5.1
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Delivery of Instruments, Certificated Securities and Chattel Paper | 11 | ||||
5.2
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Maintenance of Perfected Security Interest; Further Documentation | 11 | ||||
5.3
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Changes in Name, etc | 12 | ||||
5.4
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Pledged Securities | 12 | ||||
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SECTION 6.
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REMEDIAL PROVISIONS | 13 | ||||
6.1
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Certain Matters Relating to Intercompany Receivables | 13 | ||||
6.2
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Grantors Remain Liable | 13 | ||||
6.3
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Pledged Securities | 14 | ||||
6.4
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Application of Proceeds | 14 | ||||
6.5
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Code and Other Remedies | 15 | ||||
6.6
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Registration Rights | 16 | ||||
6.7
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Subordination | 16 | ||||
6.8
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Deficiency | 16 | ||||
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SECTION 7.
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THE ADMINISTRATIVE AGENT | 17 | ||||
7.1
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Administrative Agents Appointment as Attorney-in-Fact, etc | 17 | ||||
7.2
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Duty of Administrative Agent | 18 | ||||
7.3
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Execution of Financing Statements | 18 | ||||
7.4
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Authority of Administrative Agent | 18 | ||||
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SECTION 8.
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MISCELLANEOUS | 19 |
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Page | ||||||
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8.1
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Amendments in Writing | 19 | ||||
8.2
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Notices | 19 | ||||
8.3
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No Waiver by Course of Conduct; Cumulative Remedies | 19 | ||||
8.4
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Enforcement Expenses; Indemnification | 19 | ||||
8.5
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Successors and Assigns | 19 | ||||
8.6
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Set-Off | 19 | ||||
8.7
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Counterparts | 20 | ||||
8.8
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Severability | 20 | ||||
8.9
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Section Headings | 20 | ||||
8.10
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Integration | 20 | ||||
8.11
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GOVERNING LAW | 20 | ||||
8.12
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Submission To Jurisdiction; Waivers | 20 | ||||
8.13
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Acknowledgements | 21 | ||||
8.14
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Additional Grantors | 21 | ||||
8.15
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Releases | 21 | ||||
8.16
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WAIVER OF JURY TRIAL | 22 |
Schedule 1
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Notice Addresses | |
Schedule 2
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Investment Property | |
Schedule 3
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Perfection Matters | |
Schedule 4
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Jurisdictions of Organization and Chief Executive Offices |
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4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
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FIRST SOLAR, INC.
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By: | /S/ David Brady | |||
Name: | David Brady | |||
Title: | Corporate Treasurer | |||
Issuer | Class of Stock | Stock Certificate No. | No. of Shares | |||
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Issuer | Payee | Principal Amount | ||
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Jurisdiction of
Location of Chief
Grantor
Organization
Executive Office
Guarantee and Collateral Agreement
[ADDITIONAL GRANTOR]
By:
Name:
Title:
Assumption Agreement
Page | ||||||
Clause | ||||||
1.
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Definitions and Interpretation | 2 | ||||
2.
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Guarantee ( Garantie ) | 4 | ||||
3.
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Protective Provisions | 5 | ||||
4.
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Representations and Warranties | 7 | ||||
5.
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Payments | 7 | ||||
6.
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Costs | 7 | ||||
7.
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Limitation on Enforcement | 8 | ||||
8.
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Additional German Guarantors | 11 | ||||
9.
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Miscellaneous | 11 | ||||
10.
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Notices | 12 | ||||
11.
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Applicable law; Jurisdiction | 14 |
Schedule | ||||||
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1.
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Additional German Guarantor Accession Agreement | 15 | ||||
Signatories
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16 |
THIS GUARANTEE (the Guarantee ) is made on 8 September 2009 | ||
BY: | ||
(1) | FIRST SOLAR MANUFACTURING GMBH a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Frankfurt (Oder), Germany, under registration number HRB 11116 as assignor | |
( First Solar Manufacturing GmbH ); | ||
(2) | FIRST SOLAR HOLDINGS GMBH , a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 40090, | |
( First Solar Holdings GmbH ); and | ||
(3) | FIRST SOLAR GMBH , a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 8855, | |
( First Solar GmbH ), | ||
in favour of: | ||
(1) | JPMORGAN CHASE BANK, N.A. , , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ as assignee and administrative agent and trustee for the other Secured Parties (as defined below) (the Administrative Agent ); | |
and | ||
(2) | the other SECURED PARTIES (as defined below). | |
First Solar Manufacturing GmbH, First Solar Holdings GmbH and First Solar GmbH are hereinafter individually referred to as an Original German Guarantor and collectively referred to as the Original German Guarantors . | ||
The German Guarantors (as defined below), the Administrative Agent and the other Secured Parties (as defined below) are hereinafter collectively referred to as the Parties . | ||
WHEREAS: | ||
(A) | First Solar Inc. as company (the Company ) and, amongst others, First Solar Manufacturing GmbH as borrower entered into a New York law governed US$300,000,000 credit agreement dated 4 September 2009 (the Credit Agreement ) with the Administrative Agent and certain credit institutions as original lenders together with each new lender supplement, and assignment and assumption agreement relating thereto and any and each other agreement or instrument amending, modifying, extending, restating or supplementing it from time to time and providing for up to US$100,000,000 additional Incremental Facilities (as defined below). |
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(B) | The Company entered into a New York law governed guarantee and collateral agreement in favour of, amongst others, the Administrative Agent dated 4 September 2009 (the Guarantee and Collateral Agreement ) pursuant to which, inter alia, certain subsidiaries of the Company guaranteed prompt and complete payment of the Companys obligations under, inter alia, the Credit Agreement. | |
(C) | It is a condition to the Lenders (as defined in the Credit Agreement) making the credit facilities available to the Borrowers (as defined in the Credit Agreement) that the German Guarantors enter into this Guarantee. | |
IT IS AGREED as follows: | ||
1. | DEFINITIONS AND INTERPRETATION | |
1.1 | Definitions | |
In this Agreement: | ||
Additional German Guarantor shall have the meaning ascribed to that term in Clause 8 (Additional German Guarantors) below. | ||
Affiliate shall have the meaning ascribed to that term in the Credit Agreement. | ||
Agent means: |
(a) | the Syndication Agent; | ||
(b) | the Documentation Agent; and | ||
(c) | the Administrative Agent. |
Borrower shall have the meaning ascribed to that term in the Credit Agreement. | ||
Borrowing Subsidiaries Obligations shall have the meaning ascribed to that term in the Guarantee and Collateral Agreement. | ||
Borrowing Subsidiary shall have the meaning ascribed to that term in the Credit Agreement. | ||
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main, Germany. | ||
Company Obligation shall have the meaning ascribed to that term in the Guarantee and Collateral Agreement. | ||
Documentation Agent means The Royal Bank of Scotland plc. | ||
German Borrower means First Solar Manufacturing GmbH or any other person or entity that is organised under the laws of the Federal Republic of Germany that becomes a Borrowing Subsidiary under or in connection with the Credit Agreement. | ||
German Guarantor means any Original German Guarantor and any Additional German Guarantor. | ||
German Obligor means the German Borrower or any German Guarantor. |
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German Subsidiary Obligations means the collective reference to the unpaid principal of and interest on the Loans and Reimbursement Obligations and all other obligations and liabilities of the German Borrower, |
(a) | including, without limitation any obligation or liability of the German Borrower for any damage claim or claims resulting from unjust enrichment (or any equivalent in any jurisdiction) in connection with any cost, loss or liability incurred by any of the Secured Parties, if any of such obligations or liabilities of the German Borrower under or in connection with the Credit Agreement and/or any other Loan Document becomes unenforceable, invalid or illegal; and further | ||
(b) | including, without limitation, interest accruing at the then applicable rate provided in the Credit Agreement after the maturity of the Loans and Reimbursement Obligations and interest accruing at the then applicable rate provided in the Credit Agreement after the filing of any petition for commencement of insolvency proceedings, or the commencement of any insolvency, reorganization or like proceeding, relating to the German Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), |
to the Administrative Agent or any Lender (or, in the case of any Specified Swap Agreement, any Affiliate of any Lender) or any other Secured Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Credit Agreement, this Guarantee, the other Loan Documents, any Letter of Credit, any Specified Swap Agreement or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid by the German Borrower pursuant to the terms of any of the foregoing agreements). | ||
Guarantor Obligation shall have the meaning ascribed to that term in the Guarantee and Collateral Agreement. | ||
Incremental Facility means an incremental facility provided or to be provided by a Lender subject to and under the terms of the Credit Agreement in an aggregate amount of up to US$100,000,000. | ||
Lender shall have the meaning ascribed to that term in the Credit Agreement. | ||
Letter of Credit shall have the meaning ascribed to that term in the Credit Agreement. | ||
Loan shall have the meaning ascribed to that term in the Credit Agreement, including (without limitation) any Incremental Facility. | ||
Loan Document shall have the meaning ascribed to that term in the Credit Agreement. | ||
Loan Party shall have the meaning ascribed to that term in the Credit Agreement. | ||
Material Adverse Effect shall have the meaning ascribed to that term in the Credit Agreement. | ||
Person means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, any governmental authority or other entity of whatever nature. | ||
Reimbursement Obligation shall have the meaning ascribed to that term in the Credit Agreement. |
3
Secured Party means an Agent, the Lenders, any Affiliate of a Lender and the Issuing Lender and any Swap Counterparty to which Company Obligations, Borrowing Subsidiaries Obligations or Guarantor Obligations are owed. | ||
Specified Swap Agreement shall have the meaning ascribed to that term in the Credit Agreement. | ||
Subsidiary means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. And unless otherwise qualified, all references to a Subsidiary or to Subsidiaries in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company. | ||
Swap Counterparty means any party to a Specified Swap Agreement. | ||
Syndication Agent means Credit Suisse, Cayman Islands Branch. | ||
1.2 | Interpretation |
(a) | Where the context so admits, the singular includes the plural and vice versa . | ||
(b) | The headings in this Guarantee are for convenience only and are to be ignored in construing this Guarantee. | ||
(c) | Any reference in this Guarantee to a defined document is a reference to that defined document as amended, varied, novated or supplemented from time to time. | ||
(d) | Any reference to a Party or other person (including any Guarantor or Borrower or the German Borrower or any Loan Party and any Secured Party) includes its respective successor(s) in law (including any universal successor ( Gesamtrechtsnachfolger ) of that person by way of merger ( Verschmelzung ), any other reorganisation contemplated in the German Transformation Act ( Umwandlungsgesetz ) or otherwise) and any assign(s) and transferee(s) of that person and, to the extent legally possible, any legal provision to the contrary is waived. | ||
(e) | Unless otherwise defined herein or unless the context otherwise requires, terms defined or referred to in the Credit Agreement and/or the Guarantee and Collateral Agreement shall have the same meaning when used herein. In case of any discrepancy, the Credit Agreement shall prevail. |
2. | GUARANTEE ( GARANTIE ) | |
Each German Guarantor irrevocably and unconditionally jointly and severally ( gesamtschuldnerisch ) guarantees ( garantiert ) by way of an independent payment obligation ( selbständiges Zahlungsversprechen ) to each Secured Party to pay to that Secured Party within 5 (five) Business Days of receipt by it of a written demand by a Secured Party (or the Administrative Agent on its behalf) the amount of principal, interest, costs, expenses or other amounts demanded in such demand letter, which shall state that the sum demanded by such Secured Party under or in connection with any German Subsidiary Obligation has not been fully and irrevocably paid by a German Borrower. |
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3. | PROTECTIVE PROVISIONS | |
3.1 | Continuing and independent guarantee | |
This guarantee is independent and separate from the obligations of any Borrower and is a continuing guarantee which will extend and include any and all sums owing by any German Borrower under the Loan Documents, regardless of any intermediate payment or discharge in whole or in part. | ||
The guarantee shall extend to any additional obligations of a German Borrower resulting from any amendment, novation, supplement, extension, restatement or replacement of any Loan Document, including without limitation any extension of or increase in any facility or interest or the addition of any new facility under any Loan Document. | ||
3.2 | Reinstatement | |
If any payment made to or any discharge given by any German Obligor made to a Secured Party (whether in respect of the obligations of a Loan Party or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event: |
(a) | the liability of each German Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and | ||
(b) | each Secured Party shall be entitled to recover the value or amount of that security or payment from each German Obligor, as if the payment, discharge, avoidance or reduction had not occurred. |
3.3 | No defences |
(a) | The obligations of each German Guarantor under Clause 2 will not be affected by an act, omission, matter or thing which relates to the principal obligation (or purported obligation) of any German Borrower and which would reduce, release or prejudice any of its obligations under this Clause 2, including without limitation any personal defences of any German Borrower ( Einreden des Hauptschuldners ) or any right of revocation ( Anfechtung ) or set-off ( Aufrechnung ) of any German Borrower. Set-off may, however, affect the obligations of a German Guarantor, if such relevant German Guarantor is in the position to discharge its obligations under this Guarantee by way of set-off with claims which are undisputed ( unbestritten ) by the Secured Parties or which have been the subject of a final court judgment ( rechtskräftig ) vis-à-vis the Secured Parties. | ||
(b) | The obligations of each German Guarantor under this Clause 2 are independent from any other security or guarantee which may have been or will be given to the Secured Parties. In particular, the obligations of each German Guarantor under this Clause 2 will not be affected by any of the following: |
(i) | a release or any deferral ( Stundung ), waiver or consent granted to any other Loan Party from or in respect of its obligations under or in connection with any Loan Document, unless the relevant amount requested from a German Guarantor under this Guarantee relates to an amount owed by the German Borrower for which such release, deferral, waiver or consent has been granted, made or given.; | ||
(ii) | the taking, variation, compromise, exchange, renewal or release of or refusal or neglect to perfect, take up or enforce any rights against or security over assets of, |
5
any Loan Party or any other person or any failure to realise the full value of any security; | |||
(iii) | any incapacity or lack of power, authority or legal personality, dissolution or a deterioration of the financial condition of any other Loan Party; or | ||
(iv) | any unenforceability, illegality or invalidity of any obligation of any other Loan Party under any Loan Document. |
For the avoidance of doubt this guarantee does not constitute a guarantee upon first demand ( Garantie auf erstes Anfordern ) and nothing in this Clause 2 shall preclude any defences that any German Guarantor (in its capacity as guarantor only) may have against a Secured Party that the guarantee does not constitute its legal, valid, binding or enforceable obligations. | ||
3.4 | Immediate recourse | |
No Secured Party will be required to proceed against or enforce any other rights or security or claim payment from any person before claiming from that German Guarantor under Clause 2. This applies irrespective of any provision of a Loan Document to the contrary. | ||
3.5 | Appropriations | |
Until all amounts which may be or become payable by the German Obligors under or in connection with the Loan Documents have been irrevocably paid in full, each Secured Party may: |
(a) | refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no German Guarantor shall be entitled to the benefit of the same; and | ||
(b) | hold in an interest-bearing suspense account any moneys received from any German Guarantor or on account of any German Guarantors liability under Clause 2. |
3.6 | Deferral of German Guarantors rights | |
Until all amounts which may be or become payable by the German Obligors under or in connection with the Loan Documents have been irrevocably paid in full, unless the Administrative Agent otherwise directs, no German Guarantor will unless permitted under the Credit Agreement or any other Loan Document exercise any rights which it may have by reason of performance by it of its obligations under the Loan Documents: |
(a) | to be indemnified by a Loan Party; | ||
(b) | to claim any contribution from any other guarantor of any Loan Partys obligations under the Loan Documents; and/or | ||
(c) | to take the benefit (in whole or in part and whether by way of legal subrogation or otherwise) of any rights of the Secured Parties under the Loan Documents or of any other guarantee or security taken pursuant to, or in connection with, the Loan Documents by any German Obligor. |
Unless the Administrative Agent otherwise directs, if a German Guarantor receives any benefit, payment or distribution in relation to such rights other than in accordance with the Credit Agreement |
6
or any other Loan Document, it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by a German Borrower under or in connection with the Loan Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Administrative Agent or as the Administrative Agent may direct for application in accordance with the terms of this Guarantee and the Credit Agreement. | ||
3.7 | Additional security | |
This Guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Secured Party. | ||
4. | REPRESENTATIONS AND WARRANTIES | |
The representations and warranties set out in this Clause are made by each German Guarantor to the Secured Parties at the date hereof. | ||
4.1 | Status | |
It is a limited liability company, duly incorporated and validly existing under the laws of the Federal Republic of Germany. | ||
4.2 | Powers and authority | |
It has the power to enter into and perform, and has taken all necessary action to authorise the entry into and delivery of this Guarantee. | ||
4.3 | Non-conflict | |
The entry into and performance by it of this Guarantee do not conflict with: |
(a) | any law or regulation applicable to it; | ||
(b) | its constitutional documents; or | ||
(c) | any document which is binding upon it, |
provided that the relevant conflict is reasonably likely to have a Material Adverse Effect. | ||
5. | PAYMENTS | |
All payments by a German Guarantor under this Guarantee must be made without set-off (other than in case of claims of such German Guarantor which are undisputed ( unbestritten ) or which have been the subject of a final court judgment ( rechtskräftig ) or counterclaim and without any deduction or withholding, unless the deduction or withholding is required by law. If any deduction or withholding is required to be made, the amount of the payment due from a German Guarantor will be increased to an amount which (after making the deduction or withholding) leaves an amount equal to the payment which would have been due if no deduction or withholding had been required. | ||
6. | COSTS | |
Each German Guarantor must pay on demand: |
7
(a) | all costs, charges, fees and expenses (including legal fees of one counsel per jurisdiction) reasonably incurred by the Administrative Agent and any other Secured Party in connection with the preparation, negotiation, execution, amendment, enforcement of or the preservation of any rights under, this Guarantee; | ||
(b) | any stamp duties or other taxes in connection with this Guarantee; and | ||
(c) | any losses reasonably incurred by any of the Secured Parties flowing from any judgement or claim being payable in a different currency from that agreed under this Guarantee. |
7. | LIMITATION ON ENFORCEMENT | |
For the purpose of this Clause 7 (Limitation on Enforcement): | ||
Up-Stream and/or Cross-Stream German Guarantee means in relation to a German Guarantor any guarantee and/or indemnity granted under this Guarantee directly or indirectly securing the obligations or liabilities of any member of the Relevant Group that is not a direct or indirect Relevant Subsidiary of such German Guarantor. | ||
Relevant Group refers to a German Guarantor and any affiliated company ( verbundenes Unternehmen ) of such German Guarantor within the meaning of §§ 15 et. seq. of the German Stock Corporation Act ( Aktiengesetz ). | ||
Relevant Subsidiary means an entity of which a person owns directly or indirectly more than 50 percent (50%) of the voting capital or similar right of ownership. | ||
7.1 | Each of the Administrative Agent and the other Secured Parties agrees not to enforce the guarantee and/or any indemnity granted under this Guarantee against any Guarantor incorporated in Germany (each, a German Guarantor ) irrespective of whether the relevant German Guarantor is at the time of enforcement incorporated as |
| a limited liability company ( Gesellschaft mit beschränkter Haftung ) (a German GmbH Guarantor ), or | ||
| a limited partnership ( Kommanditgesellschaft ) of which the general partner ( Komplementär ) is a limited liability company (a German GmbH & Co. KG Guarantor ), |
if and to the extent the guarantee and/or any indemnity granted under this Guarantee is an Up-Stream and/or Cross-Stream German Guarantee in relation to such German Guarantor, and (ii) if and to the extent the enforcement of such Up-Stream and/or Cross-Stream German Guarantee would cause or constitute |
(a) | the German GmbH Guarantors, or in the case of the German GmbH & Co. KG Guarantor its general partners, net assets (the calculation of which shall take into account the captions reflected in § 266 (2) A, B and C of the German Commercial Code ( Handelsgesetzbuch )) less the German GmbH Guarantors, or in case of a German GmbH & Co. KG Guarantor its general partners, liabilities, provisions and liability reserves (the calculation of which shall take into account the captions reflected in § 266 (3) B, C and D of the German Commercial Code) (the Net Assets ) to be less than the registered share capital ( Stammkapital ) of the German GmbH Guarantor, or in the case of a German GmbH & Co. KG Guarantor of the registered share capital of its general partner ( Begründung einer Unterbilanz ); or |
8
(b) | an increase of a shortfall, if the Net Assets of the German GmbH Guarantor, or in the case of a German GmbH & Co. KG Guarantor, of its general partner, already fall short of the amount of the registered share capital ( Vertiefung einer Unterbilanz ); and/or | ||
(c) | an payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ). |
7.2 | For the purposes of the calculation of the Net Assets in Clause 7.1 above the following items shall be adjusted as follows: |
(a) | the amount of an increase in the registered share capital of the German GmbH Guarantor, or in the case of a German GmbH & Co. KG Guarantor of its general partner, |
(i) | that has been effected out of retained earnings ( Kapitalerhöhung aus Gesellschaftsmitteln ) without the prior written consent of the Administrative Agent after the date of this Agreement; or | ||
(ii) | any amount of an increase in the registered share capital if and to the extent that it has not been fully paid in, |
shall be deducted from the registered share capital; | |||
(b) | any loans and other contractual liabilities incurred by the German GmbH Guarantor, or in the case of a German GmbH & Co. KG, its general partner in violation of the Credit Agreement after the date of this Agreement shall be disregarded as liabilities; | ||
and | |||
(c) | the Net Assets shall take into account reasonable costs of the Auditors Determination (as defined below), either as a reduction of assets or an increase of liabilities. |
7.3 | Any German Guarantor, and in case of a German GmbH & Co. KG Guarantor its general partner, shall realise, to the extent legally permitted and commercially justifiable, in a situation where after enforcement of the guarantee the German GmbH Guarantor, or in the case of a German GmbH & Co. KG Guarantor its general partner, would not have Net Assets in excess of its respective registered share capital, any and all of its assets, and in case of a German GmbH & Co. KG Guarantor its general partners assets, that are shown in the respective balance sheet with a book value ( Buchwert ) that is significantly lower than the market value of the asset if such asset is not necessary for the relevant German Guarantors, and in case of a German GmbH & Co. KG Guarantor its general partners, business ( betriebsnotwendig ). | |
7.4 | Subject to Clause 7.1, after the receipt of a written demand by the Administrative Agent and/or any other Secured Party to make a payment under any guarantee granted under this Guarantee (the Enforcement Notice ), a copy of the relevant determination shall be drawn up in good faith (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) and made available to the Administrative Agent by the relevant German Guarantor (the Management Determination ) within 10 (ten) Business Days of the German Guarantors receipt of the Enforcement Notice stating |
(a) | if and to what extent the guarantee granted hereunder is an Up-Stream and/or Cross-Stream German Guarantee; |
9
(b) | which amount of such Up-Stream and/or Cross-Stream German Guarantee can be enforced without causing the Net Assets of the relevant German Guarantor, or, where the guarantor is a German GmbH & Co KG Guarantor, its general partner, to fall (or to fall further) below its respective registered share capital (taking into account the adjustments set out in Clauses 7.2 above and the value realisation pursuant to Clause 7.3 above), and | ||
(c) | which amount of such Up-Stream and/or Cross-Stream German Guarantee can be enforced without constituting an payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ), |
(such amount calculated according to (b) (c), the Recovery Amount ). Subject to Clause 7.6 below, the Secured Parties shall only be entitled to enforce the amount of any Up-Stream and/or Cross-Stream German Guarantee up to the Recovery Amount. | ||
7.5 | Following the Administrative Agents receipt of a Management Determination, the relevant German Guarantor shall provide within 15 (fifteen) Business Days a determination by auditors of international standing and reputation appointed by the relevant German Guarantor or, in the case of a GmbH & Co. KG, its general partner (the Auditors Determination ) of (i) the Recovery Amount (such determination to take into account the adjustments set out in Clauses 7.2 and the value realisation pursuant to Clause 7.3 above) and (ii) an estimate of the liabilities, damages, costs, fees and expenses reasonably expected to result from a liquidation of the relevant German Guarantor, and such German Guarantor shall, not later than 10 (ten) Business Days after receipt by it of such Auditors Determination, pay to the relevant Secured Parties the additional amount (if any) by which the Recovery Amount determined in the Auditors Determination exceeds the amount (if any) paid to any of the Secured Parties pursuant to Clause 7.4 above, and the Secured Parties shall repay any enforcement amount received in excess of the Recovery Amount determined in the Auditors Determination (if any) to the respective German Guarantor or, in the case of a German GmbH & Co. KG Guarantor, its general partner. | |
7.6 | If (i) the Administrative Agent disagrees with the Auditors Determination or (ii) the relevant German Guarantor (or in the case of a German GmbH & Co KG Guarantor, its general partner) fails to deliver an Management Determination within 10 (ten) Business Days of the German Guarantors receipt of the Enforcement Notice or (iii) an Auditors Determination within 15 (fifteen) Business Days following the Administrative Agents receipt of a Management Determination, the Secured Parties shall be entitled to further pursue in court their payment claims under this Guarantee granted by the respective German Guarantor in excess of the amounts paid or payable pursuant to Clauses 7.4 and 7.5 above, by claiming in court that demanding payment under the German Guarantee against the relevant German Guarantor does not violate §§ 30, 31 of the German Limited Liability Companies Act and would not constituting an payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ) (taking into account the calculation of the Net Assets as set out in Clause 7.1 and the adjustments as set out in Clause 7.2 and the value realisation pursuant to Clause 7.3 above). Notwithstanding the foregoing, and for the avoidance of doubt, no German Guarantor shall be obliged to pay any such amount on demand. | |
7.7 | The limitations set out in Clause 7.1 (a) and (b) and in Clause 7.4 (b) shall not apply if and to the extent the relevant German Guarantor guarantees any amounts borrowed under the Credit Agreement which are lent or on-lent to such German Guarantor or any of its direct or indirect owned Relevant Subsidiaries from time to time and have not been repaid. |
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7.8 | The limitations provided for in Clause 7.1 (a) and (b) and in Clause 7.4 (b) shall not apply so long as: |
(a) | the affected German Guarantor (or, in the case of a GmbH & Co. KG, its general partner) is a party to a profit and loss sharing agreement ( Gewinnabführungsvertrag ) and/or a domination agreement ( Beherrschungsvertrag ) where such German Guarantor (or, in the case of a GmbH & Co. KG, its general partner) is the dominated entity ( beherrschtes Unternehmen ) and/or the entity being obliged to share its profits with the other party of such profit and loss sharing agreement; it being understood that in such case the Secured Parties shall only be entitled to enforce the amount of any Up-Stream German Guarantee and/or Cross-Stream German Guarantee if and to the extent that it may reasonably be expected (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) that such German Guarantor (or, where the guarantor is a German GmbH & Co KG Guarantor, its general partner) is able to recover the annual loss ( Jahresfehlbetrag ) which the dominating entity is obliged to pay pursuant to § 302 of the German Stock Corporation Act ( Aktiengesetz ). For the purpose of the determination of the amount to be recovered under this Clause 7.8, the provisions set forth under Clauses 7.4, 7.5 and 7.6 above shall apply mutatis mutandis ; and/or | ||
(b) | the relevant German Guarantors guarantee granted under this Guarantee being covered by a valuable consideration or recourse claim ( vollwertiger Gegenleistungs- oder Rückgewähranspruch ) within the meaning of § 30 (1) Sentence 2 of the German Limited Liability Companies Act; and/or | ||
(c) | the relevant German Guarantors payment under this Guarantee discharges a shareholder loan or a claim of similar effect within the meaning of § 30 (1) Sentence 3 of the German Limited Liability Companies Act. |
7.9 | For the avoidance of doubt, any balance sheet to be prepared for the determination of the Net Assets shall be prepared in accordance with relevant accounting principles. | |
7.10 | Nothing in this Clause 7 (Limitation on Enforcement) shall be interpreted as a restriction or limitation of the enforcement of the guarantee and/or any indemnity granted under this Guarantee if and to the extent the guarantee and/or any indemnity granted under this Guarantee secures own obligations of the relevant German Guarantor or obligations of any of its direct or indirect Relevant Subsidiaries. | |
8. | ADDITIONAL GERMAN GUARANTORS | |
Each Subsidiary of the Company incorporated in the Federal Republic of Germany that is pursuant to Section 6.9 of the Credit Agreement required to provide for a guarantee in connection with the Loan Documents (an Additional German Guarantor ), then such Additional German Guarantor shall execute and deliver an accession agreement substantially in the form of Schedule 1 (the Additional German Guarantors Accession Agreement ) hereto. The Administrative Agent shall execute the Additional German Guarantors Accession Agreement for itself and on behalf of the other Secured Parties. Each of the Security Grantors herewith irrevocably consents to any New Additional German Guarantors Accession Agreement entered into in accordance with this Guarantee. |
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9. | MISCELLANEOUS |
(a) | Any determination made by the Administrative Agent, in each case in their reasonable discretion, of an amount under this Guarantee is, in the absence of fraud and manifest error, conclusive evidence of the matter to which it relates. | ||
(b) | The Administrative Agent or any other Secured Party may set off any matured obligation owed by a German Guarantor under this Guarantee against any satisfiable ( erfüllbare ) obligation with the meaning of § 387 of the German Civil Code ( Bürgerliches Gesetzbuch ) (whether or not matured) owed by that Secured Party to such German Guarantor. | ||
(c) | The rights of the Administrative Agent or any other Secured Party under this Guarantee: |
(i) | may be exercised as often as necessary; | ||
(ii) | are cumulative and not exclusive of its rights under the general law; and | ||
(iii) | may be waived only in writing and specifically. |
Delay in exercising or non-exercise of any right is not a waiver of that right. |
10. | NOTICES | |
10.1 | In writing | |
Any communication in connection with this Guarantee must be in writing and, unless otherwise stated, may be given in person, by post or by fax. Unless it is agreed to the contrary, any consent or agreement required under this Guarantee must be given in writing. | ||
10.2 | Addresses |
(a) | The contact details of the German Guarantors are: | ||
First Solar Holdings GmbH | |||
Rheinstr. 4B
55116 Mainz |
|
Attn.: | Anja Lange | ||
|
David Brady | |||
|
||||
|
Fax: | +49(0)6131-1443-500 | ||
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+1-602-414-9462 | |||
|
||||
|
Email: | alange@firstsolar.com | ||
|
dbrady@firstsolar.com |
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First Solar GmbH | ||||
Rheinstr. 4B | ||||
55116 Mainz | ||||
|
||||
Germany | ||||
|
||||
|
Attn.: | Anja Lange | ||
|
David Brady | |||
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||||
|
Fax: | +49(0)6131-1443-500 | ||
|
+1-602-414-9462 | |||
|
||||
|
Email: | alange@firstsolar.com | ||
|
dbrady@firstsolar.com |
First Solar Manufacturing GmbH | ||||
|
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Marie-Curie-Str. 3 | ||||
15236 Frankfurt (Oder) | ||||
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GermanyGermany | ||||
|
||||
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Attn.: | Anja Lange | ||
|
David Brady | |||
|
||||
|
Fax: | +49(0)6131-1443-500 | ||
|
+1-602-414-9462 | |||
|
||||
|
Email: | alange@firstsolar.com | ||
|
dbrady@firstsolar.com |
(b) | The contact details of the Administrative Agent and the other Secured Parties are: |
|
To the Administrative Agent: | JPMorgan Chase Bank, N.A. | ||
|
10 South Dearborn, 7th Floor | |||
|
Chicago, IL 60603 | |||
|
||||
|
Attention: Creston Wren | |||
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Telecopy: 001 (312) 385-7097 | |||
|
Telephone: 001 (312) 385-7016 | |||
|
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With a copy to | JPMorgan Chase Bank, N.A. | ||
|
125 London Wall | |||
|
London | |||
|
EC2Y 5AJ | |||
|
||||
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Attention: Lucy Chick | |||
|
Telecopy: +44(0)20 7325 6835 | |||
|
Telephone: +44(0)20 7325 6926 |
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|
With a copy to | JPMorgan Chase Bank, N.A. | ||
|
201 North Central Avenue, Floor
21Phoenix, AZ 85004 |
|||
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||||
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Attention: Mark Chambers | |||
|
Telecopy: 001 (602) 221-1502 | |||
|
Telephone: 001 (602) 221-2290 |
(c) | When a Party nominates a particular department or officer to receive a notice, a notice will not be effective if it fails to specify that department or officer. |
10.3 | Effectiveness |
(a) | Except as provided below, any notice in connection with this Guarantee will be deemed to be given as follows: |
(i) | if delivered in person, at the time of the delivery; | ||
(ii) | if posted, five Business Days after being deposited in the post, postage prepaid, in a correctly addressed envelope; and | ||
(iii) | if by fax, when received in legible form. |
(b) | A communication given under paragraph (a) above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place. |
10.4 | Invalidity |
If any provision of this Guarantee or part thereof should be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions hereof. The invalid or unenforceable provision shall be replaced by that provision which best meets the intent of the replaced provision. This shall apply analogously with respect to anything which is accidentally not regulated in this Guarantee ( Vertragslücke ). § 139 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall be waived hereby. |
10.5 | Amendments | |
Changes to and amendments of this Agreement, including this Clause 9.5, must be made in writing. | ||
11. | APPLICABLE LAW; JURISDICTION | |
11.1 | Governing Law | |
This Guarantee and any non-contractual obligations arising out of or in connection with this Guarantee shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. |
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11.2 | Jurisdiction | |
The place of jurisdiction for all Parties shall be Frankfurt am Main, Federal Republic of Germany. The Administrative Agent and the other Secured Parties, however, shall also be entitled to take legal action against a German Guarantor before any other competent court of law having jurisdiction over the German Guarantor or any of its assets. |
15
|
||
[Acceding Additional German Guarantor]
|
[the Administrative Agent for itself and for and on behalf of the other Secured Parties] |
16
/s/ David Brady | ||||
David Brady | ||||
Authorized Officer (Prokurist) | ||||
/s/ David Brady | ||||
David Brady | ||||
Authorized Officer (Prokurist) | ||||
/s/ David Brady | ||||
David Brady | ||||
Authorized Officer (Prokurist) | ||||
/s/ Stefan Kuhm | ||||
Stefan Kuhm | ||||
Attorney-In-Fact | ||||
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Page | ||||||
Clause | ||||||
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1.
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Interpretation | 1 | ||||
2.
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Assignment | 6 | ||||
3.
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Purpose of the Assignment | 6 | ||||
4.
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List of claims | 7 | ||||
5.
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Disclosure and notification | 7 | ||||
6.
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Assignment of claims against conditional vendors | 8 | ||||
7.
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The Assignors rights | 8 | ||||
8.
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Book-keeping and data-processing | 8 | ||||
9.
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Enforcement and collection | 9 | ||||
10.
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Maintenance of liable capital | 10 | ||||
11.
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No recourse | 13 | ||||
12.
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Representations and warranties | 14 | ||||
13.
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Undertakings | 14 | ||||
14.
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Release and reassignment | 15 | ||||
15.
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Indemnity | 16 | ||||
16.
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Duration and independence | 17 | ||||
17.
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The Security Trust Agreement | 17 | ||||
18.
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Costs and expenses | 17 | ||||
19.
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Partial invalidity; Waiver | 17 | ||||
20.
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Amendments | 18 | ||||
21.
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Successors, assignments and transfers | 18 | ||||
22.
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Notices and their language | 18 | ||||
23.
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Applicable law; Jurisdiction | 18 | ||||
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Schedules | ||||||
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1.
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Original Lenders | 20 | ||||
2.
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Original Obligors | 21 | ||||
3.
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Forms | 22 | ||||
4.
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Addresses for notices | 25 | ||||
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Signatories | 26 |
(1) | FIRST SOLAR HOLDINGS GMBH a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 40090 as assignor | |
(the Assignor ); and | ||
(2) | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ as assignee and administrative agent and trustee for the other Secured Parties (as defined below) | |
(the Administrative Agent ). |
(A) | The Original Lenders (as defined below) have agreed to make available to the Borrowers (as defined below) certain revolving credit facilities and certain letters of credit on the terms of and subject to the Credit Agreement (as defined below). | |
(B) | It is a condition to the Original Lenders (as defined below) making the credit facilities available to the Borrowers (as defined below) that the Assignor enters into this Agreement. | |
(C) | The other Secured Parties (as defined below) have appointed the Administrative Agent to act as their security trustee under German law ( Treuhänder ) pursuant to and in accordance with the Security Trust Agreement (as defined below) in relation to the security provided hereunder. |
1. | INTERPRETATION | |
1.1 | Definitions | |
In this Agreement: | ||
Additional Domestic Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Domestic Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Foreign Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Additional Foreign Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. |
1
Agent means: |
(a) | the Syndication Agent; | ||
(b) | the Documentation Agent; and | ||
(c) | the Administrative Agent. |
Assignment means each and any assignment of a Claim and of any other right and claim to the Administrative Agent for security purposes ( Sicherungsabtretung ) constituted pursuant to this Agreement. | ||
Assignment and Assumption Agreement means the assignment and assumption agreement, accepted by the Administrative Agent whereby a Lender (defined as assignor therein) sells and assigns to a person (defined as assignee therein) (such assignee becoming a Lender by the purchase and assumption arranged for thereunder), inter alia , any or all of the assignors rights and obligations in its capacity as a Lender under the Credit Agreement to the assignee. | ||
Borrower means any Domestic Borrower and any Foreign Borrower. | ||
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main, Germany. | ||
Claims means all present and future monetary receivables and claims which the Assignor holds or will hold ( Forderungsinhaber ) against any other member of the Group, including any such receivables and claims arising under or in connection with (i) any loan granted by the Assignor to any other member of the Group, or (ii) any promissory note evidencing loans or advances made to any other member of the Group (the Intercompany Receivables ), | ||
including, without limitation,: |
(A) | any right to payment held by the Assignor for goods sold or leased or for services rendered or funds advanced to any other member of the Group, whether or not such right is evidenced by any instrument or chattel paper and whether or not it has been earned by performance; | ||
(B) | claims resulting from any domination agreement ( Beherrschungsvertrag ) or any profit and loss sharing agreement ( Gewinnabführungsvertrag ) (excluding, however, such amount that the Assignor needs to be able to recover the annual loss ( Jahresfehlbetrag ); | ||
(C) | all ancillary rights ( Neben-, Hilfs- und Gestaltungsrechte ) pertaining thereto and/or to the respective underlying contractual relationship (other than ancillary relates pertaining to any Intercompany Receivable or its underlying contractual relationship); | ||
(D) | damage claims ( Schadensersatzansprüche ) and claims resulting from unjust enrichment ( ungerechtfertigte Bereicherung ) and any similar claims under any other applicable law; and | ||
(E) | where the Assignor maintains a genuine or non-genuine current account arrangement ( echtes oder unechtes Kontokorrentverhältnis ) with regard to any of such receivables or claims, all claims which arise from any existing or future current account balances, the right to determine the net balance and the right to terminate the current account relationship. |
To the extent that such Claims are in existence or outstanding at the time this Agreement comes into force, such Claims are referred to as the Existing Claims , and if such Claims will only come into existence in the future they are referred to as the Future Claims . |
2
Company means First Solar, Inc., a corporation organised under the laws of Delaware, United States of America, having its business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America. | ||
Credit Agreement means the New York law governed credit agreement dated on or about the date of this Agreement between the Company and the Original Foreign Borrowers on one side and, inter alia, the Administrative Agent and the Original Lenders together with each new lender supplement, and assignment and assumption agreement relating thereto and any and each other agreement or instrument amending, modifying, extending, restating or supplementing it from time to time providing for an approximately $300,000,000 facility and an up to $100,000,000 Incremental Facility. | ||
Debtor means each debtor in respect of a Claim and Debtors means all such debtors. | ||
Default means a default as defined under the Credit Agreement. | ||
Documentation Agent means The Royal Bank of Scotland plc. | ||
Dollar or $ means the lawful currency of the United States of America. | ||
Domestic Borrower means the Company and any Additional Domestic Borrower. | ||
Domestic Guarantor means any Original Domestic Guarantor and any Additional Domestic Guarantor. | ||
Event of Default means an event (i) in which the commitments will automatically immediately terminate and the amounts outstanding are immediately due and payable (ii) which would entitle the Administrative Agent to, inter alia, prematurely terminate all or part of the total commitments under the Credit Agreement and/or to declare that all or part of the amounts outstanding under the Credit Agreement are immediately due and payable or payable on demand provided that any requirement for the giving of notice, the lapse of time or both has been satisfied. | ||
Foreign Borrower means any Original Foreign Borrower and any Additional Foreign Borrower. | ||
Foreign Guarantor means any Original Foreign Guarantor and any Additional Foreign Guarantor. | ||
German Borrower means First Solar Manufacturing GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which becomes a borrower under the Credit Agreement after the date of the Credit Agreement. | ||
German Guarantor means First Solar GmbH and First Solar Holdings GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which is required to provide for a guarantee in connection with the Loan Documents after the date of the Credit Agreement. | ||
Group means the Company and its Subsidiaries from time to time. | ||
Guarantee and Collateral Agreement means the guarantee and collateral agreement dated on or about the date of this Agreement made between, inter alia , First Solar, Inc. and certain of its Subsidiaries in favour of the Administrative Agent which will be attached as Exhibit A to the Credit Agreement. | ||
Guarantor means any Domestic Guarantor and any Foreign Guarantor. |
3
Incremental Facility means any additional revolving loan provided either |
(i) | by a person that already is a lender under the Credit Agreement (defined as increasing lender therein) after having accepted an increase of its revolving commitment; or | ||
(ii) | by an assuming lender becoming a new lender under the Credit Agreement (defined as assuming lender therein) after having signed a New Lender Supplement, |
provided that the aggregate amount of the aggregate revolving loans will in no event exceed $400,000,000. | ||
Issuing Lender means the Original Issuing Lender and any other lender that has agreed in its sole discretion to issue a letter of credit to any Borrower or any other borrowing Subsidiary in connection with the Credit Agreement. | ||
Lender means an Original Lender and any person which becomes a lender under the Credit Agreement, including without limitation as a assuming lender of an Incremental Facility, after the date of this Agreement, unless, in each case, such person has ceased to be a lender under the Credit Agreement. | ||
Letter of Credit means any letter of credit issued or to be issued under the Credit Agreement, as such letter of credit may be amended, modified, restated, extended, renewed, increased, replaced or supplemented from time to time. | ||
Loan Document means |
(a) | the Credit Agreement; | ||
(b) | each Security Document; | ||
(c) | any Note; and | ||
(d) | any other document designated as such by the Administrative Agent and the Company. |
New Lender Supplement means a supplement to the Credit Agreement pursuant to which an assuming lender will become a party to the Credit Agreement with a revolving commitment in an amount agreed by such assuming lender. | ||
Note means any promissory note evidencing loans in accordance with the terms of the Credit Agreement, that may be amended, modified, supplemented, extended, renewed or replaced from time to time. | ||
Obligor means a Borrower and/or a Guarantor. | ||
Original Domestic Guarantors means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Guarantors. | ||
Original Foreign Borrower means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Borrowers. | ||
Original Foreign Guarantor means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Guarantors. | ||
Original Issuing Lender means JPMorgan Chase Bank, N.A. |
4
Original Lender means each of the financial institutions set out in Schedule 1 hereto in its capacity as original lender to the Company and the Original Foreign Borrowers. | ||
Parties means the Assignor and the Administrative Agent. | ||
Person means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, any governmental authority or other entity of whatever nature. | ||
Secured Claims means all present and future rights and claims ( Ansprüche ) (whether actual or contingent and whether owned jointly or severally or in any other capacity whatsoever) (including claims from unjust enrichment ( ungerechtfertige Bereicherung ) and tort ( Delikt )) of any of the Secured Parties against any German Borrower and any German Guarantor under or in connection with the Loan Documents (or any of them) or any Letter of Credit, each as amended, varied, supplemented or novated from time to time, including without limitation, any increase of principal or interest, in each case together with all interest, costs, charges and expenses incurred by any Secured Party in connection with the protection and preservation or enforcement of its respective rights under the Loan Documents or any Letter of Credit. | ||
Secured Party means an Agent, the Lenders and any affiliate of any Lender to which any obligations under any Loan Document or under any Specified Swap Agreements are owed by any member of the Group, any Issuing Lender and any Swap Counterparty | ||
Security means any and all collateral granted with a view to securing the Secured Claims. | ||
Security Trust Agreement means the security trust agreement dated on or about the date hereof between, amongst others, the Administrative Agent and the Original Lenders pursuant to which the Administrative Agent has been granted certain rights and has assumed certain obligations in relation to certain Security Documents governed by German law. | ||
Security Document means |
(a) | the Guarantee and Collateral Agreement; and | ||
(b) | any other document evidencing or creating collateral over any asset of an Obligor to secure any obligation of an Obligor to a Secured Party under or in connection with, inter alia , the Credit Agreement. |
Specified Swap Agreement means any Swap Agreement entered into by the Company or any Guarantor and any lender or any affiliate of a lender in connection with any Loan Document. | ||
Subsidiary means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. And unless otherwise qualified, all references to a Subsidiary or to Subsidiaries in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company. | ||
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing |
5
indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; except for any phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any of its Subsidiaries. | ||
Swap Counterparty means any person or entity providing a Specified Swap Agreement. | ||
Syndication Agent means Credit Suisse, Cayman Islands Branch. | ||
1.2 | Where the context so admits, the singular includes the plural and vice versa. | |
1.3 | The headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. | |
1.4 | Any reference in this Agreement to a defined document is a reference to that defined document as amended, varied, supplemented or novated from time to time. | |
1.5 | Any reference to a Party or other person (including any Obligor and any Secured Party) includes its respective successor(s) in law (including any universal successor ( Gesamtrechtsnachfolger ) of that person by way of merger ( Verschmelzung ), any other reorganisation contemplated in the German Transformation Act ( Umwandlungsgesetz ) or otherwise) and any assign(s) and transferee(s) of that person and, to the extent legally possible, any legal provision to the contrary is waived. | |
1.6 | Unless otherwise defined herein or unless the context otherwise requires, terms defined or referred to in the Credit Agreement shall have the same meaning when used herein. | |
2. | ASSIGNMENT | |
2.1 | The Assignor hereby assigns for security purposes ( Sicherungsabtretung ) all of the Claims to the Administrative Agent. | |
2.2 | The Existing Claims shall pass over to the Administrative Agent upon execution of this Agreement, and any Future Claims shall pass over to the Administrative Agent on the date such Future Claims arise. | |
2.3 | The Assignor hereby assigns and transfers all rights and claims in respect any kind of cheques ( Schecks ), bills of exchange ( Wechsel ), notes or commercial papers the Assignor receives for the settlement of any assigned Claim to the Administrative Agent. | |
2.4 | The Claims are assigned to the Administrative Agent together with all security interests securing the Claims (or any of them). To the extent that any such security interest is not assigned or transferred to the Administrative Agent as a matter of law, the Assignor hereby assigns or, as applicable, transfers each such security interest to the Administrative Agent. | |
2.5 | The Administrative Agent hereby accepts all such assignments and transfers referred to in this Clause 2. | |
3. | PURPOSE OF THE ASSIGNMENT | |
The Assignment is constituted in order to secure the full and irrevocable satisfaction and discharge of any and all Secured Claims. The Assignor hereby expressly agrees that the Assignment shall also secure any future extension or increase of the Secured Claims and the Secured Claims as extended or increased from time to time. |
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4. | LIST OF CLAIMS | |
4.1 | The Assignor shall provide to the Administrative Agent from time to time statements and schedules further identifying and describing the Claims and such other reports in connection therewith as the Administrative Agent may reasonably request, all in reasonable detail. | |
4.2 | At any time after a Default or an Event of Default has occurred and is continuing, at the Administrative Agents request, the Assignor shall provide to the Administrative Agent promptly ( unverzüglich ) an up-to-date list of all outstanding Claims (each such list a List of Claims ). | |
4.3 | Unless otherwise agreed between the Parties in writing, each List of Claims shall include the names and addresses of the Debtors as well as the outstanding amounts including the due dates for payment and (if applicable) the invoice date and number. The Assignor shall also |
(a) | specify which Claims are subject to: |
(i) | an assignment pursuant to an extended retention of title ( verlängerter Eigentumsvorbehalt ), and the name of the relevant seller retaining title ( Eigentumsvorbehaltsverkäufer ); | ||
(ii) | any prohibition on assignment ( Abtretungsverbot ) or any limitation of assignability (and specify the nature of such prohibition or limitation); and |
(b) | specify if, in relation to which Claims and in which aggregate amounts counterclaims are held, or have been asserted by, any Debtors as well as the legal basis ( Rechtsgrund ) of each such counterclaim. |
4.4 | The Assignor shall have the right to deliver the Lists of Claims (or the statements, schedules and reports under clause 4.1 and 4.2) on a readable and compatible disk or other electronic data storage medium. The Administrative Agent will contact the Assignor from time to time with a view to agreeing the necessary details. | |
4.5 | For the avoidance of doubt, the Administrative Agent shall also be entitled to any and all Claims if for any reason whatsoever any Claims are not or incompletely contained in any List of Claims. | |
5. | DISCLOSURE AND NOTIFICATION | |
5.1 | The Assignor shall promptly notify any Debtor of this Agreement by delivering a signed notification letter in the form of Schedule 3 Part 1 to this Agreement via registered mail with return receipt requested ( Einschreiben mit Rückschein ), with a copy to the Administrative Agent, or, as appropriate, by courier (with a delivery confirmation) and use its best efforts to procure that the respective Debtor executes an acknowledgement of notification substantially in the form of Schedule 3 Part 1 to this Agreement addressed to the Administrative Agent. | |
5.2 | The Assignor shall promptly deliver to the Administrative Agent copies of the aforementioned notification letters and the return receipts ( Rückschein ) or, if sent by courier, confirmation of delivery and if received by the Assignor, upon receipt, copies of the acknowledgements by the Debtors. |
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5.3 | Clauses 5.1 and 5.2 shall not apply to those Debtors that acknowledge receipt of the notification letter by signing the notification letter in the form of Schedule 3 Part 1, as long as the signed acknowledgement is send to the Administration Agent via pdf on or about the day this Agreement is signed. | |
6. | ASSIGNMENT OF CLAIMS AGAINST CONDITIONAL VENDORS | |
6.1 | If a Claim is subject to an assignment pursuant to an extended retention of title ( verlängerter Eigentumsvorbehalt ) arrangement with any supplier of the Assignor, the Assignment of such Claim to the Administrative Agent pursuant to this Agreement shall only become effective upon the extinction of such extended retention of title. As long as the supplier is only partly entitled to a Claim, the assignment of such Claim to the Administrative Agent hereunder shall be limited to the part of the Claim to which the Assignor is entitled. The other part of such Claim will be transferred to the Administrative Agent at such time as that part is no longer affected by any extended retention of title. | |
6.2 | The Assignor hereby assigns to the Administrative Agent its right to reassignment of the Claims assigned to a supplier by reason of an extended retention of title ( verlängerter Eigentumsvorbehalt ) as well as any contingent claims to the transfer of all proceeds paid out to the supplier, together with all rights pertaining thereto. The same applies to any possible inchoate right ( Anwartschaftsrecht ) with respect to the assignment of any Claims which are subject to a dissolving condition ( auflösende Bedingung ). The Administrative Agent hereby accepts each such assignment. | |
6.3 | The Administrative Agent is entitled (but not obliged) to extinguish the extended retention of title ( verlängerter Eigentumsvorbehalt ) by itself satisfying the supplier. | |
7. | THE ASSIGNORS RIGHTS | |
The Assignor shall be entitled to collect (including enforce) and exercise the Claims and any ancillary rights and claims assigned or otherwise transferred to the Administrative Agent pursuant to this Agreement in its ordinary course of business or otherwise in line with past practice until the Administrative Agent gives notice to the contrary which the Administrative Agent shall be entitled to do upon the occurrence of an Event of Default (so long as such Event of Default is continuing). | ||
8. | BOOK-KEEPING AND DATA-PROCESSING | |
The following rights may only be exercised in line with the Credit Agreement: | ||
8.1 | If the Assignor employs a third party for its bookkeeping and/or data-processing, the Assignor hereby authorises the Administrative Agent to obtain the statements and schedules provided according to Clause 4.1 and the Lists of Claims provided according to Clause 4.2 directly from such third party at the Assignors expense. | |
8.2 | If proof or documents necessary to assert the Claims have been handed over by the Assignor to a third party (in particular a bookkeeping firm or a tax consultant) the Assignor hereby assigns to the Administrative Agent its right to demand from such third party the return of the information and documents. The Administrative Agent hereby accepts such assignment. The Assignor hereby undertakes to instruct the third party to provide the Administrative Agent upon its demand with such information and documents which are necessary to assert the relevant Claims. | |
8.3 | If the relevant Claims have been stored in an electronic data-processing system and a third party handles the electronic processing of data, the Assignor hereby assigns to the Administrative Agent all rights against such third party relating to these services, and instructs such third party to handle |
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the processing of data for the Administrative Agent upon its instructions as it did for the relevant Assignor. The Administrative Agent hereby accepts such assignment. | ||
8.4 | The Assignment in Clauses 8.2 or 8.3 shall not hinder the Assignor to demand the information and documents or data from third party handling these information, documents or data and the Assignor is hereby authorised to exercise all rights assigned to the Administrative Agent pursuant to Clause 8.2 and/or clause 8.3. | |
9. | ENFORCEMENT AND COLLECTION | |
9.1 | The Administrative Agents rights |
(a) | The Administrative Agent shall be entitled to realise any and all of the Claims (together with any and all other rights and claims transferred or assigned to the Administrative Agent pursuant to this Agreement) at any time after the occurrence of an Event of Default so long as such Event of Default is continuing if, in addition, any Foreign Borrower or Foreign Guarantor has failed to meet all or part of its payment obligations in respect of any of the Secured Claims. | ||
(b) | The Administrative Agent shall notify the Assignor of its intention to realise the Claims by giving 1 (one) weeks prior written notice to the Assignor. Such notice period is not necessary if (i) the Assignor has generally ceased to make payments, (ii) an application for the commencement of insolvency proceedings over the assets of the Assignor is filed (and not withdrawn) by the Assignor or by any third person and, in the latter case, it is not without delay established to the satisfaction of the Administrative Agent that the application is obviously frivolous or (iii) the observance of such notice period can reasonably be expected to adversely affect the enforceability of the security interests constituted pursuant to this Agreement (or any of them). | ||
(c) | Upon becoming entitled to enforce, pursuant to this Clause 9.1, the security interests constituted pursuant to this Agreement, the Administrative Agent may (i) collect, or arrange for the collection of, the Claims (or any of them) in its own name or for its own account, and/or (ii) exercise any and all rights and claims transferred or assigned to the Administrative Agent pursuant to this Agreement to the extent necessary to satisfy any outstanding Secured Claim. If no Event of Default is outstanding, the Administrative Agents right to collect the Claims shall cease and the Administrative Agent shall pay over to the Assignor all moneys received in connection with such collection and retained by it save to the extent any such moneys have been applied in payment of any of the Secured Claims. | ||
(d) | If and to the extent the Administrative Agent collects any Claims pursuant to this Clause 9.1, it may take all measures and enter into all agreements with such Debtors which it considers to be expedient. | ||
(e) | If and to the extent the Administrative Agent is entitled to collect the Claims pursuant to this Clause 9.1, he may request that copies of all documents relating to the Claims be handed over to the Administrative Agent and the Assignor hereby agrees to comply promptly with any such request. If no Event of Default is outstanding, the Administrative Agents shall return such copies received. | ||
(f) | The Administrative Agent may determine which part of the Security, if applicable, shall be used to satisfy the Secured Claims. |
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9.2 | Application of proceeds |
(a) | The proceeds resulting from the enforcement of the security interests constituted pursuant to this Agreement shall be applied by the Administrative Agent towards payment of the Secured Claims in accordance with the relevant provisions of the Credit Agreement. | ||
(b) | After the full and irrevocable satisfaction and discharge of all Secured Claims any remaining proceeds resulting from the enforcement of the security interests constituted pursuant to this Agreement shall be transferred to the Assignor at the cost and expense of the Assignor. |
10. | MAINTENANCE OF LIABLE CAPITAL | |
For the purpose of this Clause 10 (Maintenance of Liable Capital): | ||
Up-Stream and/or Cross-Stream German Assignment means in relation to a German Assignor any security interest granted under this Agreement directly or indirectly securing the obligations or liabilities of any member of the Relevant Group that is not a direct or indirect Relevant Subsidiary of such German Assignor. | ||
Relevant Group refers to a German Assignor and any affiliated company ( verbundenes Unternehmen ) of such German Assignor within the meaning of §§ 15 et. seq. of the German Stock Corporation Act ( Aktiengesetz ). | ||
Relevant Subsidiary means an entity of which a person owns directly or indirectly more than 50 percent (50%) of the voting capital or similar right of ownership | ||
10.1 | The Administrative Agent agrees not to enforce the Assignment granted under this Agreement against any Assignor incorporated in Germany (each, a German Assignor ) irrespective of whether the relevant German Assignor is at the time of enforcement incorporated as |
| a limited liability company ( Gesellschaft mit beschränkter Haftung ) (a German GmbH Assignor ), or | ||
| a limited partnership ( Kommanditgesellschaft ) of which the general partner ( Komplementär ) is a limited liability company (a German GmbH & Co. KG Assignor ), |
if and to the extent the Assignment granted under this Agreement is an Up-Stream and/or Cross-Stream German Assignment in relation to such German Assignor, and (ii) if and to the extent the enforcement of such Up-Stream and/or Cross-Stream German Assignment would cause or constitute |
(a) | the German GmbH Assignors, or in the case of the German GmbH & Co. KG Assignor its general partners, net assets (the calculation of which shall take into account the captions reflected in § 266 (2) A, B and C of the German Commercial Code ( Handelsgesetzbuch )) less the German GmbH Assignors, or in case of a German GmbH & Co. KG Assingor its general partners, liabilities, provisions and liability reserves (the calculation of which shall take into account the captions reflected in § 266 (3) B, C and D of the German Commercial Code) (the Net Assets ) to be less than the registered share capital ( Stammkapital ) of the German GmbH Assignor, or in the case of a German GmbH & Co. KG Assignor of the registered share capital of its general partner ( Begründung einer Unterbilanz ); or | ||
(b) | an increase of a shortfall, if the Net Assets of the German GmbH Assingor, or in the case of a German GmbH & Co. KG Assignor, of its general partner, already fall short of the amount of the registered share capital ( Vertiefung einer Unterbilanz ); and/or |
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(c) | a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ). |
10.2 | For the purposes of the calculation of the Net Assets in Clause 10.1 above the following items shall be adjusted as follows: |
(a) | the amount of an increase in the registered share capital of the German GmbH Assignor, or in the case of a German GmbH & Co. KG Assignor of its general partner, |
(i) | that has been effected out of retained earnings ( Kapitalerhöhung aus Gesellschaftsmitteln ) without the prior written consent of the Administrative Agent after the date of the Credit Agreement; or | ||
(ii) | any amount of an increase in the registered share capital if and to the extent that it has not been fully paid in, |
shall be deducted from the registered share capital; | |||
(b) | any loans and other contractual liabilities incurred by the German GmbH Assignor, or in the case of a German GmbH & Co. KG, its general partner in violation of the Credit Agreement after the date of the Credit Agreement shall be disregarded as liabilities; | ||
and | |||
(c) | the Net Assets shall take into account reasonable costs of the Auditors Determination (as defined below), either as a reduction of assets or an increase of liabilities. |
10.3 | Any German Assignor, and in case of a German GmbH & Co. KG Assignor its general partner, shall realise, to the extent legally permitted and commercially justifiable, in a situation where after enforcement of the Assignment the German GmbH Assignor, or in the case of a German GmbH & Co. KG Assignor its general partner, would not have Net Assets in excess of its respective registered share capital, any and all of its assets, and in case of a German GmbH & Co. KG Assignor its general partners assets, that are shown in the respective balance sheet with a book value ( Buchwert ) that is significantly lower than the market value of the asset if such asset is not necessary for the relevant German Assignors, and in case of a German GmbH & Co. KG Assignor its general partners, business ( betriebsnotwendig ). | |
10.4 | Subject to Clause 10.1, after the receipt of a written demand by the Administrative Agent to make a payment under any Assignment granted under this Agreement (the Enforcement Notice ), a copy of the relevant determination shall be drawn up in good faith (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) and made available to the Administrative Agent by the relevant German Assignor (the Management Determination ) within 10 (ten) Business Days of the German Assignors receipt of the Enforcement Notice stating |
(a) | if and to what extent the Assignment granted hereunder is an Up-Stream and/or Cross-Stream German Assignment; | ||
(b) | which amount of such Up-Stream and/or Cross-Stream German Assignment can be enforced without causing the Net Assets of the relevant German Assignor, or, where the Assignor is a German GmbH & Co KG Assignor, its general partner, to fall (or to fall further) below its respective registered share capital (taking into account the adjustments set out in Clauses 10.2 above and the value realisation pursuant to Clause 10.3 above), and |
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(c) | which amount of such Up-Stream and/or Cross-Stream German Assignment can be enforced without constituting a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ), |
(such amount calculated according to (b) (c), the Recovery Amount ). Subject to Clause 10.6 below, the Administrative Agent shall only be entitled to enforce the amount of any Up-Stream and/or Cross-Stream German Assignment up to the Recovery Amount. | ||
10.5 | Following the Administrative Agents receipt of a Management Determination, the relevant German Assignor shall provide within 15 (fifteen) Business Days a determination by auditors of international standing and reputation appointed by the relevant German Assignor or, in the case of a GmbH & Co. KG, its general partner (the Auditors Determination ) of (i) the Recovery Amount (such determination to take into account the adjustments set out in Clauses 10.2 and the value realisation pursuant to Clause 10.3 above) and (ii) an estimate of the liabilities, damages, costs, fees and expenses reasonably expected to result from a liquidation of the relevant German Assignor, and such German Assignor shall, not later than 10 (ten) Business Days after receipt by it of such Auditors Determination, pay to the Administrative Agent the additional amount (if any) by which the Recovery Amount determined in the Auditors Determination exceeds the amount (if any) paid to any of the Administrative Agent pursuant to Clause 10.4 above, and the Administrative Agent shall repay any enforcement amount received in excess of the Recovery Amount determined in the Auditors Determination (if any) to the respective German Assignor or, in the case of a German GmbH & Co. KG Assignor, its general partner. | |
10.6 | If (i) the Administrative Agent disagrees with the Auditors Determination or (ii) the relevant German Assignor (or in the case of a German GmbH & Co KG Assignor, its general partner) fails to deliver an Management Determination within 10 (ten) Business Days of the German Assignors receipt of the Enforcement Notice or (iii) an Auditors Determination within 15 (fifteen) Business Days following the Administrative Agents receipt of a Management Determination, the Administrative Agent shall be entitled to further pursue in court its payment claims under this Assignment granted by the respective German Assignor in excess of the amounts paid or payable pursuant to Clauses 10.4 and 10.5 above, by claiming in court that demanding payment under the German Assignment against the relevant German Assignor does not violate §§ 30, 31 of the German Limited Liability Companies Act and would not constituting a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ) (taking into account the calculation of the Net Assets as set out in Clause 10.1 and the adjustments as set out in Clause 10.2 and the value realisation pursuant to Clause 10.3 above). Notwithstanding the foregoing, and for the avoidance of doubt, no German Assignor shall be obliged to pay any such amount on demand. | |
10.7 | The limitations set out in Clause 10.1 (a) and (b) and in Clause 10.4 (b) shall not apply if and to the extent the Assignment by the relevant German Assignor secures any amounts borrowed under the Credit Agreement which are lent or on-lent to such German Assignor or any of its direct or indirect owned Relevant Subsidiaries from time to time and have not been repaid. | |
10.8 | The limitations provided for in Clause 10.1 (a) and (b) and in Clause 10.4 (b) shall not apply so long as: |
(a) | the affected German Assignor (or, in the case of a GmbH & Co. KG, its general partner) is a party to a profit and loss sharing agreement ( Gewinnabführungsvertrag ) and/or a domination agreement ( Beherrschungsvertrag ) where such German Assignor (or, in the case of a GmbH & Co. KG, its general partner) is the dominated entity ( beherrschtes Unternehmen ) and/or the entity being obliged to share its profits with the other party of such profit and loss |
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sharing agreement; it being understood that in such case the Administrative Agent shall only be entitled to enforce the amount of any Up-Stream German Assignment and/or Cross-Stream German Assignment if and to the extent that it may reasonably be expected (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) that such German Assignor (or, where the Assignor is a German GmbH & Co KG Assignor, its general partner) is able to recover the annual loss ( Jahresfehlbetrag ) which the dominating entity is obliged to pay pursuant to § 302 of the German Stock Corporation Act ( Aktiengesetz ). For the purpose of the determination of the amount to be recovered under this Clause 10.8, the provisions set forth under Clauses 10.4, 10.5 and 10.6 above shall apply mutatis mutandis ; and/or | |||
(b) | the relevant German Assignors Assignment granted under this Agreement being covered by a valuable consideration or recourse claim ( vollwertiger Gegenleistungs- oder Rückgewähranspruch ) within the meaning of § 30 (1) Sentence 2 of the German Limited Liability Companies Act; and/or | ||
(c) | the relevant German Assignors payment under this Assignment discharges a shareholder loan or a claim of similar effect within the meaning of § 30 (1) Sentence 3 of the German Limited Liability Companies Act. |
10.9 | For the avoidance of doubt, any balance sheet to be prepared for the determination of the Net Assets shall be prepared in accordance with relevant accounting principles. | |
10.10 | Nothing in this Clause 10 (Maintenance of Liable Capital) shall be interpreted as a restriction or limitation of the enforcement of the Assignment granted under this Agreement if and to the extent the Assignment granted under this Agreement secures own obligations of the relevant German Assignor or obligations of any of its direct or indirect Relevant Subsidiaries. | |
11. | NO RECOURSE | |
The Parties hereby agree that until the full and irrevocable satisfaction and discharge of all Secured Claims no rights and claims shall pass to or otherwise arise for the benefit of the Assignor by subrogation ( gesetzlicher Übergang von Forderungen und Rechten ) or otherwise, including any recourse claims, indemnification claims, claims arising from unjust enrichment ( ungerechtfertigte Bereicherung ) and any right to demand the assignment and/or transfer of any Secured Claim and/or Security, against any Obligor or grantor of Security which it may (but for this Clause 11) acquire as a result of: |
(i) | a payment or repayment by the Assignor of any debt of any other Obligor under any of the Loan Documents; or | ||
(ii) | in case of enforcement of the security constituted pursuant to this Agreement. |
Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Assignor furthermore undertakes not to exercise ( pactum de non petendo ), and not to purport to exercise, any such rights and claims which may pass to it or otherwise arise for its benefit notwithstanding this Clause 11 or would pass to it or otherwise arise for its benefit but for this Clause 11. | ||
The provisions under this Clause 11 shall not apply with regard to a recourse claim, if the parties agreed to allow such recourse of the Assignor against any of the other Parties thereby taking at all times into account the terms of the Credit Agreement and any other Loan Document. |
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12. | REPRESENTATIONS AND WARRANTIES | |
The Assignor represents and warrants ( selbständiges Garantieversprechen im Sinne von § 311 Bürgerliches Gesetzbuch ) to the Administrative Agent that on the date of this Agreement subject to any liens, third party rights and restrictions permitted to exist under the Credit Agreement: |
(a) | it is validly existing and is neither: |
(i) | unable to pay its debts when they fall due ( zahlungsunfähig ) within the meaning of section 17 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(ii) | in a state of imminent inability to pay its debts when they fall due ( drohende Zahlungsunfähigkeit ) within the meaning of section 18 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iii) | over-indebted ( überschuldet ) within the meaning of section 19 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iv) | subject to any insolvency proceedings ( Insolvenzverfahren ) (or other or similar proceedings under the laws of any other applicable jurisdiction) or any refusal of opening insolvency proceedings for insufficiency of assets ( Abweisung mangels Masse ) (within the meaning of section 26 of the German Insolvency Code ( Insolvenzordnung )); |
(b) | it is the sole legal, record and beneficial owner ( Forderungs- bzw. Rechtsinhaber ) of the Existing Claims and the other rights and claims transferred or assigned (or to be transferred or assigned) pursuant to this Agreement; | ||
(c) | it has the right to freely dispose ( verfügen ) of the Existing Claims and the other rights and claims transferred or assigned (or to be transferred or assigned) pursuant to this Agreement and is not subject to any restrictions on assignment and such disposition does not violate the rights of any third person, any contractual undertaking of the Assignor to a third person or any regulatory orders; | ||
(d) | the Claims are not in any way encumbered nor subject to any rights of third persons; and | ||
(e) | no litigation, arbitration or administrative proceedings, which could reasonably be expected to have a material adverse effect, are presently in progress, pending or threatened which restrain, or threaten to restrain, the Assignor in respect of the entry into, the performance of or compliance with any of its obligations pursuant to this Agreement. |
13. | UNDERTAKINGS | |
The Assignor undertakes: |
(a) | if any amount in excess of US$100,000 payable or security transferrable under or in connection with this Agreement shall be or become evidenced by any authorisation, approval, licence and consent such authorisation, approval, licence and consent shall be promptly delivered to the Administrative Agent, duly indorsed in a manner satisfactory to the Administrative Agent; | ||
(b) | other than in case of Claims which are not governed by German law, to maintain the security interest created by this Agreement as a perfected security interest and to defend such security |
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interest against the claims and demands of all persons whomsoever subject to the rights of the Assignor under the Credit Agreement to dispose of the Claims; | |||
(c) | other than in case of Claims which are not governed by German law, at any time and from time to time, upon the written request of the Administrative Agent and at the sole expense of such Assignor, to promptly ( unverzüglich ) and duly execute and deliver, and have recorded such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, execute one or more collateral agreements (including assignments and releases) to obtain or preserve the security interest created by this Agreement in favour of the Administrative Agent and the other Secured Parties | ||
(d) | to inform the Administrative Agent promptly ( unverzüglich ) of any attachments ( Pfändung ) regarding any and all of the Claims or any other measures which can reasonably be expected to impair or jeopardise the Administrative Agents rights relating to the Claims. In the event of an attachment, the Assignor undertakes to forward to the Administrative Agent promptly ( unverzüglich ) a copy of the attachment order ( Pfändungsbeschluss ), the garnishee order ( Überweisungsbeschluss ) and all other documents necessary for a defence against the attachment. The Assignor shall inform the attaching creditor promptly ( unverzüglich ) about the Administrative Agents security interests pursuant to this Agreement; | ||
(e) | not to assign (or purport to assign), encumber or sell any of the Claims to any third person without the Administrative Agents prior written consent unless already permitted or so authorised pursuant to this Agreement or the Credit Agreement; | ||
(f) | to refrain from any acts or omissions which can reasonably be expected to have an adverse effect on the validity or enforceability of this Agreement or the security interests constituted thereunder (or any of them); and | ||
(g) | to notify any future Debtor promptly ( unverzüglich ) of this Agreement in accordance with Clause 5 (Disclosure and Notification). |
14. | RELEASE AND REASSIGNMENT | |
14.1 | Reassignment | |
After the full and irrevocable satisfaction and discharge of all Secured Claims, the Administrative Agent shall, at the cost and expense of the Assignor, reassign to the Assignor the Claims (together with any and all other rights and claims transferred or assigned to the Administrative Agent pursuant to this Agreement) and confirm in writing to the Assignor upon the Assignors request that the Assignments have ceased to exist. The Administrative Agent will, however, assign any Claims (together with any other right and claim transferred or assigned pursuant to this Agreement pertaining to them) to a third person to the extent that it is obliged to do so. | ||
14.2 | Release of Security | |
Even prior to the full and irrevocable satisfaction and discharge of all Secured Claims, the Administrative Agent is obliged to release, upon the Assignors request, and at the Assignors cost and expense, all or part of the Security insofar as the realisable value of the Security exceeds, not only temporarily, the Secured Claims by more than 10 %. The Administrative Agent may, at its discretion, determine which part of the Security shall be released but shall reasonably take into account the legitimate interest of the Assignor. |
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14.3 | Evaluation | |
For the purpose of calculating the realisable value of the Claims the following shall be deducted from the nominal value of all Claims: |
(a) | Claims which cannot be assigned, or can be assigned only with the consent of a Debtor who has not consented; | ||
(b) | Claims which can be set off with an existing counterclaim; | ||
(c) | Claims which are subject to defences or objections due to the fact that the underlying services or performances have not been (fully) rendered; | ||
(d) | Claims which have not been assigned to the Administrative Agent by reason of an extended retention of title pursuant to Clause 6 (Assignment of claims against conditional vendors); and | ||
(e) | Claims the assignment of which is not valid due to the governing law and the Debtors domicile or principal place of business. |
A further security deduction of 10 per cent. in order to take into account the risk of distress of a Claim shall then be deducted from the nominal value calculated in accordance with this Clause 14.3. | ||
14.4 | Adjustment | |
Each of the Parties has the right to demand an adjustment of the security deduction different from that specified above, if the previously agreed security deduction turns out to be too high or too low because of subsequent changes occurring after the date of this Agreement. | ||
15. | INDEMNITY | |
15.1 | Liability for Damages | |
The Administrative Agent shall not be liable for any loss or damage suffered by the Assignor save in respect of such loss or damage which is suffered as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent. | ||
15.2 | Indemnification | |
The Assignor shall indemnify and hold the Administrative Agent harmless and keep the Administrative Agent indemnified from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement which may be incurred by or made against the Administrative Agent for anything done or omitted in the exercise or purported exercise of the powers contained in this Agreement provided , that the Pledgor shall have no obligation hereunder to the extent that such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement are incurred by or made against the Administrative Agent as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent. |
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17
Agreement ( Vertragslücke ). § 139 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall be waived hereby. | ||
19.2 | Waiver | |
No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies provided hereunder are cumulative and not exclusive of any rights or remedies provided by law. | ||
20. | AMENDMENTS | |
Changes to and amendments of this Agreement, including this Clause 20, must be made in writing. | ||
21. | SUCCESSORS, ASSIGNMENTS AND TRANSFERS | |
This Agreement shall be binding upon the Parties hereto and, to the extent legally possible, their respective successor(s) in law. The Administrative Agent shall be entitled to assign or otherwise transfer (i) any and all of its rights and (ii) (only with regard to any person which becomes a lender or an administrative agent under the Credit Agreement after the date of this Agreement) any and all of its duties pursuant to this Agreement to third parties. The Assignor is entitled to any such transfer with the prior written consent of the Administrative Agent only. | ||
22. | NOTICES AND THEIR LANGUAGE | |
22.1 | Notices | |
Any notice or other communication under or in connection with this Agreement to the Assignor or the Administrative Agent shall be in writing and shall be delivered personally, by post, email or fax and shall be sent to the address, email address or fax number of the party, and for the attention of the individual or department as set forth in Schedule 4 hereto or such other address, email address or fax number as is notified in writing by that party for this purpose to the Administrative Agent or, as the case may be, the Assignor, from time to time. | ||
22.2 | Language | |
Unless otherwise required by statutory German law or unless otherwise agreed in writing from time to time, any notice or other communication under or in connection with this Agreement shall be made in the English language or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail (unless the document is a statutory or other official document), except that where a German translation of a legal term appears in such text, the German translation shall prevail. | ||
23. | APPLICABLE LAW; JURISDICTION | |
23.1 | Governing Law | |
This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. |
18
23.2 | Jurisdiction | |
The place of jurisdiction for all Parties shall be Frankfurt am Main, Federal Republic of Germany. The Administrative Agent, however, shall also be entitled to take legal action against the Assignor in any other competent court of law having jurisdiction over the Assignor or any of its assets. |
19
20
21
[ insert date and place ] | [ Datum und Ort einfügen ] | |
|
||
Dear Sirs,
|
Sehr geehrte Damen und Herren, | |
|
||
We hereby give you notice that
pursuant to a assignment agreement
entered into by us in favour of
JPMorgan Chase Bank, N.A. (the
Administrative Agent
) dated
[
insert date of the assignment
agreement
], we have assigned to the
Administrative Agent by way of
security assignment all our present
and future claims against you
together with all ancillary rights
and claims pertaining thereto. We
are authorised by the Administrative
Agent to collect the assigned claims
in our own name and for our own
account and to exercise any rights
and claims in the ordinary course of
trading until and unless you receive
a notification from the
Administrative Agent or ourselves to
the contrary. Please see attached as
Annex 1 a copy of the assignment
agreement.
Please acknowledge receipt of this notice and your agreement with the terms hereof by countersigning this letter and returning the same to us. |
Wir teilen Ihnen hierdurch mit,
dass wir mit Abtretungsvertrag
(Zessionsvertrag) vom [
Datum des
Abtretungsvertrages einfügen
]
sämtliche bestehenden und künftigen
Forderungen mit allen
dazugehörenden Rechten und
Ansprüchen gegen Sie an JPMorgan
Chase Bank, N.A. (der
Sicherheitentreuhänder
) im Wege
der Sicherungsabtretung abgetreten
haben. Wir sind vom
Sicherheitentreuhänder ermächtigt,
alle Zahlungen betreffend die
abgetretenen Forderungen im eigenen
Namen und für eigene Rechnung
einzuziehen und entgegenzunehmen
und unsere Rechte im Rahmen des
gewöhnlichen Geschäftsbetriebs
auszuüben, wenn und soweit sie
keine anderslautende Mitteilung des
Sicherheitentreuhänders oder durch
uns erhalten. Als Anlage 1 erhalten Sie eine Kopie des Abtretungsvertrages.
Bitte bestätigen Sie den Erhalt dieser Benachrichtigung und Ihr Einverständnis mit den hierin enthaltenen Bestimmungen durch Gegenzeichnung dieser Benachrichtigung und Rücksendung an uns. |
|
|
||
Yours faithfully,
|
Mit freundlichen Grüßen, | |
|
||
First Solar Holdings GmbH
By:
Name:
|
First Solar Holdings GmbH
|
|
Title:
|
Titel: | |
|
||
Acknowledgement of the debtor
|
Bestätigung des Drittschuldners | |
We acknowledge receipt of this
notification letter and confirm our
agreement with the terms thereof.
|
Wir bestätigen den Erhalt der Benachrichtigung und erklären unser Einverständnis mit den darin enthaltenen Bestimmungen. |
22
[
insert full name of the debtor
]
By:
Name:
Title:
Date:
|
[
den vollständigen Namen des
Drittschuldners einfügen
]
Titel: Datum: |
23
24
To the Assignor:
|
First Solar Holdings GmbH | |
|
||
|
Rheinstr. 4B
55116 Mainz |
|
|
||
|
Germany |
Attn.: |
Anja Lange
David Brady |
||
Fax: |
+49(0)6131-1443-500
+1-602-414-9462 |
||
Email: |
alange@firstsolar.com
dbrady@firstsolar.com |
To the Administrative Agent:
|
JPMorgan Chase Bank, N.A.
10 South Dearborn, 7 th Floor Chicago, IL 60603 |
|
|
||
|
Attention: Creston Wren
Telecopy: 001 (312) 385-7097 Telephone: 001 (312) 385-7016 |
|
|
||
With a copy to
|
JPMorgan Chase Bank, N.A.
125 London Wall London EC2Y 5AJ |
|
|
||
|
Attention: Lucy Chick
Telecopy: +44(0)20 7325 6835 Telephone: +44(0)20 7325 6926 |
|
|
||
With a copy to
|
JPMorgan Chase Bank, N.A.
201 North Central Avenue, Floor 21Phoenix, AZ 85004 |
|
|
||
|
Attention: Mark Chambers
Telecopy: 001 (602) 221-1502 Telephone: 001 (602) 221-2290 |
25
The Assignor
First Solar Holdings GmbH |
||||
/s/ David Brady | ||||
Name: | David Brady | |||
Function: Authorized Officer (Prokurist) | ||||
The Administrative Agent
JPMorgan Chase Bank, N.A. |
||||
/s/ Stefan Kuhm | ||||
Name: | Stefan Kuhm | |||
Function: Attorney-In-Fact | ||||
26
Page | |||||||
Clause |
|
||||||
|
|||||||
1. |
Interpretation
|
1 | |||||
2. |
Assignment
|
6 | |||||
3. |
Purpose of the Assignment
|
6 | |||||
4. |
List of claims
|
6 | |||||
5. |
Disclosure and notification
|
7 | |||||
6. |
Assignment of claims against conditional vendors
|
7 | |||||
7. |
The Assignors rights
|
8 | |||||
8. |
Book-keeping and data-processing
|
8 | |||||
9. |
Enforcement and collection
|
9 | |||||
10. |
Maintenance of liable capital
|
10 | |||||
11. |
No recourse
|
13 | |||||
12. |
Representations and warranties
|
13 | |||||
13. |
Undertakings
|
14 | |||||
14. |
Release and reassignment
|
15 | |||||
15. |
Indemnity
|
16 | |||||
16. |
Duration and independence
|
16 | |||||
17. |
The Security Trust Agreement
|
17 | |||||
18. |
Costs and expenses
|
17 | |||||
19. |
Partial invalidity; Waiver
|
17 | |||||
20. |
Amendments
|
17 | |||||
21. |
Successors, assignments and transfers
|
18 | |||||
22. |
Notices and their language
|
18 | |||||
23. |
Applicable law; Jurisdiction
|
18 | |||||
|
|||||||
Schedules | |||||||
|
|||||||
1. |
Original Lenders
|
19 | |||||
2. |
Original Obligors
|
20 | |||||
3. |
Forms
|
21 | |||||
4. |
Addresses for notices
|
24 | |||||
|
|||||||
Signatories | 25 |
(1) | FIRST SOLAR GMBH a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 8855 as assignor | |
(the Assignor ); and | ||
(2) | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ as assignee and administrative agent and trustee for the other Secured Parties (as defined below) | |
(the Administrative Agent ). |
(A) | The Original Lenders (as defined below) have agreed to make available to the Borrowers (as defined below) certain revolving credit facilities and certain letters of credit on the terms of and subject to the Credit Agreement (as defined below). | |
(B) | It is a condition to the Original Lenders (as defined below) making the credit facilities available to the Borrowers (as defined below) that the Assignor enters into this Agreement. | |
(C) | The other Secured Parties (as defined below) have appointed the Administrative Agent to act as their security trustee under German law ( Treuhänder ) pursuant to and in accordance with the Security Trust Agreement (as defined below) in relation to the security provided hereunder. |
1. | INTERPRETATION | |
1.1 | Definitions | |
In this Agreement: | ||
Additional Domestic Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Domestic Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Foreign Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Additional Foreign Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. |
1
(a) | the Syndication Agent; | ||
(b) | the Documentation Agent; and | ||
(c) | the Administrative Agent. |
(A) | any right to payment held by the Assignor for goods sold or leased or for services rendered or funds advanced to any other member of the Group, whether or not such right is evidenced by any instrument or chattel paper and whether or not it has been earned by performance; | ||
(B) | all ancillary rights ( Neben-, Hilfs- und Gestaltungsrechte ) pertaining thereto and/or to the respective underlying contractual relationship (other than ancillary relates pertaining to any Intercompany Receivable or its underlying contractual relationship); | ||
(C) | damage claims ( Schadensersatzansprüche ) and claims resulting from unjust enrichment ( ungerechtfertigte Bereicherung ) and any similar claims under any other applicable law; and | ||
(D) | where the Assignor maintains a genuine or non-genuine current account arrangement ( echtes oder unechtes Kontokorrentverhältnis ) with regard to any of such receivables or claims, all claims which arise from any existing or future current account balances, the right to determine the net balance and the right to terminate the current account relationship. |
2
(i) | by a person that already is a lender under the Credit Agreement (defined as increasing lender therein) after having accepted an increase of its revolving commitment; or |
3
(ii) | by an assuming lender becoming a new lender under the Credit Agreement (defined as assuming lender therein) after having signed a New Lender Supplement, |
4
(a) | the Guarantee and Collateral Agreement; and | ||
(b) | any other document evidencing or creating collateral over any asset of an Obligor to secure any obligation of an Obligor to a Secured Party under or in connection with, inter alia , the Credit Agreement. |
5
1.2 | Where the context so admits, the singular includes the plural and vice versa. | |
1.3 | The headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. | |
1.4 | Any reference in this Agreement to a defined document is a reference to that defined document as amended, varied, supplemented or novated from time to time. | |
1.5 | Any reference to a Party or other person (including any Obligor and any Secured Party) includes its respective successor(s) in law (including any universal successor ( Gesamtrechtsnachfolger ) of that person by way of merger ( Verschmelzung ), any other reorganisation contemplated in the German Transformation Act ( Umwandlungsgesetz ) or otherwise) and any assign(s) and transferee(s) of that person and, to the extent legally possible, any legal provision to the contrary is waived. | |
1.6 | Unless otherwise defined herein or unless the context otherwise requires, terms defined or referred to in the Credit Agreement shall have the same meaning when used herein. | |
2. | ASSIGNMENT | |
2.1 | The Assignor hereby assigns for security purposes ( Sicherungsabtretung ) all of the Claims to the Administrative Agent. | |
2.2 | The Existing Claims shall pass over to the Administrative Agent upon execution of this Agreement, and any Future Claims shall pass over to the Administrative Agent on the date such Future Claims arise. | |
2.3 | The Assignor hereby assigns and transfers all rights and claims in respect any kind of cheques ( Schecks ), bills of exchange ( Wechsel ), notes or commercial papers the Assignor receives for the settlement of any assigned Claim to the Administrative Agent. | |
2.4 | The Claims are assigned to the Administrative Agent together with all security interests securing the Claims (or any of them). To the extent that any such security interest is not assigned or transferred to the Administrative Agent as a matter of law, the Assignor hereby assigns or, as applicable, transfers each such security interest to the Administrative Agent. | |
2.5 | The Administrative Agent hereby accepts all such assignments and transfers referred to in this Clause 2. | |
3. | PURPOSE OF THE ASSIGNMENT |
6
4. | LIST OF CLAIMS | |
4.1 | The Assignor shall provide to the Administrative Agent from time to time statements and schedules further identifying and describing the Claims and such other reports in connection therewith as the Administrative Agent may reasonably request, all in reasonable detail. | |
4.2 | At any time after a Default or an Event of Default has occurred and is continuing, at the Administrative Agents request, the Assignor shall provide to the Administrative Agent promptly ( unverzüglich ) an up-to-date list of all outstanding Claims (each such list a List of Claims ). | |
4.3 | Unless otherwise agreed between the Parties in writing, each List of Claims shall include the names and addresses of the Debtors as well as the outstanding amounts including the due dates for payment and (if applicable) the invoice date and number. The Assignor shall also |
(a) | specify which Claims are subject to: |
(i) | an assignment pursuant to an extended retention of title ( verlängerter Eigentumsvorbehalt ), and the name of the relevant seller retaining title ( Eigentumsvorbehaltsverkäufer ); | ||
(ii) | any prohibition on assignment ( Abtretungsverbot ) or any limitation of assignability (and specify the nature of such prohibition or limitation); and |
(b) | specify if, in relation to which Claims and in which aggregate amounts counterclaims are held, or have been asserted by, any Debtors as well as the legal basis ( Rechtsgrund ) of each such counterclaim. |
4.4 | The Assignor shall have the right to deliver the Lists of Claims (or the statements, schedules and reports under clause 4.1 and 4.2) on a readable and compatible disk or other electronic data storage medium. The Administrative Agent will contact the Assignor from time to time with a view to agreeing the necessary details. | |
4.5 | For the avoidance of doubt, the Administrative Agent shall also be entitled to any and all Claims if for any reason whatsoever any Claims are not or incompletely contained in any List of Claims. | |
5. | DISCLOSURE AND NOTIFICATION | |
5.1 | The Assignor shall promptly notify any Debtor of this Agreement by delivering a signed notification letter in the form of Schedule 3 Part 1 to this Agreement via registered mail with return receipt requested ( Einschreiben mit Rückschein ), with a copy to the Administrative Agent, or, as appropriate, by courier (with a delivery confirmation) and use its best efforts to procure that the respective Debtor executes an acknowledgement of notification substantially in the form of Schedule 3 Part 1 to this Agreement addressed to the Administrative Agent. | |
5.2 | The Assignor shall promptly deliver to the Administrative Agent copies of the aforementioned notification letters and the return receipts ( Rückschein ) or, if sent by courier, confirmation of delivery and if received by the Assignor, upon receipt, copies of the acknowledgements by the Debtors. |
7
5.3 | Clauses 5.1 and 5.2 shall not apply to those Debtors that acknowledge receipt of the notification letter by signing the notification letter in the form of Schedule 3 Part 1, as long as the signed acknowledgement is send to the Administration Agent via pdf on or about the day this Agreement is signed. | |
6. | ASSIGNMENT OF CLAIMS AGAINST CONDITIONAL VENDORS | |
6.1 | If a Claim is subject to an assignment pursuant to an extended retention of title ( verlängerter Eigentumsvorbehalt ) arrangement with any supplier of the Assignor, the Assignment of such Claim to the Administrative Agent pursuant to this Agreement shall only become effective upon the extinction of such extended retention of title. As long as the supplier is only partly entitled to a Claim, the assignment of such Claim to the Administrative Agent hereunder shall be limited to the part of the Claim to which the Assignor is entitled. The other part of such Claim will be transferred to the Administrative Agent at such time as that part is no longer affected by any extended retention of title. | |
6.2 | The Assignor hereby assigns to the Administrative Agent its right to reassignment of the Claims assigned to a supplier by reason of an extended retention of title ( verlängerter Eigentumsvorbehalt ) as well as any contingent claims to the transfer of all proceeds paid out to the supplier, together with all rights pertaining thereto. The same applies to any possible inchoate right ( Anwartschaftsrecht ) with respect to the assignment of any Claims which are subject to a dissolving condition ( auflösende Bedingung ). The Administrative Agent hereby accepts each such assignment. | |
6.3 | The Administrative Agent is entitled (but not obliged) to extinguish the extended retention of title ( verlängerter Eigentumsvorbehalt ) by itself satisfying the supplier. | |
7. | THE ASSIGNORS RIGHTS | |
The Assignor shall be entitled to collect (including enforce) and exercise the Claims and any ancillary rights and claims assigned or otherwise transferred to the Administrative Agent pursuant to this Agreement in its ordinary course of business or otherwise in line with past practice until the Administrative Agent gives notice to the contrary which the Administrative Agent shall be entitled to do upon the occurrence of an Event of Default (so long as such Event of Default is continuing). | ||
8. | BOOK-KEEPING AND DATA-PROCESSING | |
The following rights may only be exercised in line with the Credit Agreement: | ||
8.1 | If the Assignor employs a third party for its bookkeeping and/or data-processing, the Assignor hereby authorises the Administrative Agent to obtain the statements and schedules provided according to Clause 4.1 and the Lists of Claims provided according to Clause 4.2 directly from such third party at the Assignors expense. | |
8.2 | If proof or documents necessary to assert the Claims have been handed over by the Assignor to a third party (in particular a bookkeeping firm or a tax consultant) the Assignor hereby assigns to the Administrative Agent its right to demand from such third party the return of the information and documents. The Administrative Agent hereby accepts such assignment. The Assignor hereby undertakes to instruct the third party to provide the Administrative Agent upon its demand with such information and documents which are necessary to assert the relevant Claims. | |
8.3 | If the relevant Claims have been stored in an electronic data-processing system and a third party handles the electronic processing of data, the Assignor hereby assigns to the Administrative Agent all rights against such third party relating to these services, and instructs such third party to handle |
8
the processing of data for the Administrative Agent upon its instructions as it did for the relevant Assignor. The Administrative Agent hereby accepts such assignment. |
8.4 | The Assignment in Clauses 8.2 or 8.3 shall not hinder the Assignor to demand the information and documents or data from third party handling these information, documents or data and the Assignor is hereby authorised to exercise all rights assigned to the Administrative Agent pursuant to Clause 8.2 and/or clause 8.3. | |
9. | ENFORCEMENT AND COLLECTION | |
9.1 | The Administrative Agents rights |
(a) | The Administrative Agent shall be entitled to realise any and all of the Claims (together with any and all other rights and claims transferred or assigned to the Administrative Agent pursuant to this Agreement) at any time after the occurrence of an Event of Default so long as such Event of Default is continuing if, in addition, any Foreign Borrower or Foreign Guarantor has failed to meet all or part of its payment obligations in respect of any of the Secured Claims. | ||
(b) | The Administrative Agent shall notify the Assignor of its intention to realise the Claims by giving 1 (one) weeks prior written notice to the Assignor. Such notice period is not necessary if (i) the Assignor has generally ceased to make payments, (ii) an application for the commencement of insolvency proceedings over the assets of the Assignor is filed (and not withdrawn) by the Assignor or by any third person and, in the latter case, it is not without delay established to the satisfaction of the Administrative Agent that the application is obviously frivolous or (iii) the observance of such notice period can reasonably be expected to adversely affect the enforceability of the security interests constituted pursuant to this Agreement (or any of them). | ||
(c) | Upon becoming entitled to enforce, pursuant to this Clause 9.1, the security interests constituted pursuant to this Agreement, the Administrative Agent may (i) collect, or arrange for the collection of, the Claims (or any of them) in its own name or for its own account, and/or (ii) exercise any and all rights and claims transferred or assigned to the Administrative Agent pursuant to this Agreement to the extent necessary to satisfy any outstanding Secured Claim. If no Event of Default is outstanding, the Administrative Agents right to collect the Claims shall cease and the Administrative Agent shall pay over to the Assignor all moneys received in connection with such collection and retained by it save to the extent any such moneys have been applied in payment of any of the Secured Claims. | ||
(d) | If and to the extent the Administrative Agent collects any Claims pursuant to this Clause 9.1, it may take all measures and enter into all agreements with such Debtors which it considers to be expedient. | ||
(e) | If and to the extent the Administrative Agent is entitled to collect the Claims pursuant to this Clause 9.1, he may request that copies of all documents relating to the Claims be handed over to the Administrative Agent and the Assignor hereby agrees to comply promptly with any such request. If no Event of Default is outstanding, the Administrative Agents shall return such copies received. | ||
(f) | The Administrative Agent may determine which part of the Security, if applicable, shall be used to satisfy the Secured Claims. |
9
9.2 | Application of proceeds |
(a) | The proceeds resulting from the enforcement of the security interests constituted pursuant to this Agreement shall be applied by the Administrative Agent towards payment of the Secured Claims in accordance with the relevant provisions of the Credit Agreement. | ||
(b) | After the full and irrevocable satisfaction and discharge of all Secured Claims any remaining proceeds resulting from the enforcement of the security interests constituted pursuant to this Agreement shall be transferred to the Assignor at the cost and expense of the Assignor. |
10. | MAINTENANCE OF LIABLE CAPITAL |
10.1 | The Administrative Agent agrees not to enforce the Assignment granted under this Agreement against any Assignor incorporated in Germany (each, a German Assignor ) irrespective of whether the relevant German Assignor is at the time of enforcement incorporated as |
| a limited liability company ( Gesellschaft mit beschränkter Haftung ) (a German GmbH Assignor ), or | ||
| a limited partnership ( Kommanditgesellschaft ) of which the general partner ( Komplementär ) is a limited liability company (a German GmbH & Co. KG Assignor ), |
(a) | the German GmbH Assignors, or in the case of the German GmbH & Co. KG Assignor its general partners, net assets (the calculation of which shall take into account the captions reflected in § 266 (2) A, B and C of the German Commercial Code ( Handelsgesetzbuch )) less the German GmbH Assignors, or in case of a German GmbH & Co. KG Assingor its general partners, liabilities, provisions and liability reserves (the calculation of which shall take into account the captions reflected in § 266 (3) B, C and D of the German Commercial Code) (the Net Assets ) to be less than the registered share capital ( Stammkapital ) of the German GmbH Assignor, or in the case of a German GmbH & Co. KG Assignor of the registered share capital of its general partner ( Begründung einer Unterbilanz ); or | ||
(b) | an increase of a shortfall, if the Net Assets of the German GmbH Assingor, or in the case of a German GmbH & Co. KG Assignor, of its general partner, already fall short of the amount of the registered share capital ( Vertiefung einer Unterbilanz ); and/or |
10
(c) | a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ). |
10.2 | For the purposes of the calculation of the Net Assets in Clause 10.1 above the following items shall be adjusted as follows: |
(a) | the amount of an increase in the registered share capital of the German GmbH Assignor, or in the case of a German GmbH & Co. KG Assignor of its general partner, |
(i) | that has been effected out of retained earnings ( Kapitalerhöhung aus Gesellschaftsmitteln ) without the prior written consent of the Administrative Agent after the date of the Credit Agreement; or | ||
(ii) | any amount of an increase in the registered share capital if and to the extent that it has not been fully paid in, |
(b) | any loans and other contractual liabilities incurred by the German GmbH Assignor, or in the case of a German GmbH & Co. KG, its general partner in violation of the Credit Agreement after the date of the Credit Agreement shall be disregarded as liabilities; | ||
and | |||
(c) | the Net Assets shall take into account reasonable costs of the Auditors Determination (as defined below), either as a reduction of assets or an increase of liabilities. |
10.3 | Any German Assignor, and in case of a German GmbH & Co. KG Assignor its general partner, shall realise, to the extent legally permitted and commercially justifiable, in a situation where after enforcement of the Assignment the German GmbH Assignor, or in the case of a German GmbH & Co. KG Assignor its general partner, would not have Net Assets in excess of its respective registered share capital, any and all of its assets, and in case of a German GmbH & Co. KG Assignor its general partners assets, that are shown in the respective balance sheet with a book value ( Buchwert ) that is significantly lower than the market value of the asset if such asset is not necessary for the relevant German Assignors, and in case of a German GmbH & Co. KG Assignor its general partners, business ( betriebsnotwendig ). | |
10.4 | Subject to Clause 10.1, after the receipt of a written demand by the Administrative Agent to make a payment under any Assignment granted under this Agreement (the Enforcement Notice ), a copy of the relevant determination shall be drawn up in good faith (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) and made available to the Administrative Agent by the relevant German Assignor (the Management Determination ) within 10 (ten) Business Days of the German Assignors receipt of the Enforcement Notice stating |
(a) | if and to what extent the Assignment granted hereunder is an Up-Stream and/or Cross-Stream German Assignment; | ||
(b) | which amount of such Up-Stream and/or Cross-Stream German Assignment can be enforced without causing the Net Assets of the relevant German Assignor, or, where the Assignor is a German GmbH & Co KG Assignor, its general partner, to fall (or to fall further) below its respective registered share capital (taking into account the adjustments set out in Clauses 10.2 above and the value realisation pursuant to Clause 10.3 above), and |
11
(c) | which amount of such Up-Stream and/or Cross-Stream German Assignment can be enforced without constituting a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ), |
10.5 | Following the Administrative Agents receipt of a Management Determination, the relevant German Assignor shall provide within 15 (fifteen) Business Days a determination by auditors of international standing and reputation appointed by the relevant German Assignor or, in the case of a GmbH & Co. KG, its general partner (the Auditors Determination ) of (i) the Recovery Amount (such determination to take into account the adjustments set out in Clauses 10.2 and the value realisation pursuant to Clause 10.3 above) and (ii) an estimate of the liabilities, damages, costs, fees and expenses reasonably expected to result from a liquidation of the relevant German Assignor, and such German Assignor shall, not later than 10 (ten) Business Days after receipt by it of such Auditors Determination, pay to the Administrative Agent the additional amount (if any) by which the Recovery Amount determined in the Auditors Determination exceeds the amount (if any) paid to any of the Administrative Agent pursuant to Clause 10.4 above, and the Administrative Agent shall repay any enforcement amount received in excess of the Recovery Amount determined in the Auditors Determination (if any) to the respective German Assignor or, in the case of a German GmbH & Co. KG Assignor, its general partner. | |
10.6 | If (i) the Administrative Agent disagrees with the Auditors Determination or (ii) the relevant German Assignor (or in the case of a German GmbH & Co KG Assignor, its general partner) fails to deliver an Management Determination within 10 (ten) Business Days of the German Assignors receipt of the Enforcement Notice or (iii) an Auditors Determination within 15 (fifteen) Business Days following the Administrative Agents receipt of a Management Determination, the Administrative Agent shall be entitled to further pursue in court its payment claims under this Assignment granted by the respective German Assignor in excess of the amounts paid or payable pursuant to Clauses 10.4 and 10.5 above, by claiming in court that demanding payment under the German Assignment against the relevant German Assignor does not violate §§ 30, 31 of the German Limited Liability Companies Act and would not constituting a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ) (taking into account the calculation of the Net Assets as set out in Clause 10.1 and the adjustments as set out in Clause 10.2 and the value realisation pursuant to Clause 10.3 above). Notwithstanding the foregoing, and for the avoidance of doubt, no German Assignor shall be obliged to pay any such amount on demand. | |
10.7 | The limitations set out in Clause 10.1 (a) and (b) and in Clause 10.4 (b) shall not apply if and to the extent the Assignment by the relevant German Assignor secures any amounts borrowed under the Credit Agreement which are lent or on-lent to such German Assignor or any of its direct or indirect owned Relevant Subsidiaries from time to time and have not been repaid. | |
10.8 | The limitations provided for in Clause 10.1 (a) and (b) and in Clause 10.4 (b) shall not apply so long as: |
(a) | the affected German Assignor (or, in the case of a GmbH & Co. KG, its general partner) is a party to a profit and loss sharing agreement ( Gewinnabführungsvertrag ) and/or a domination agreement ( Beherrschungsvertrag ) where such German Assignor (or, in the case of a GmbH & Co. KG, its general partner) is the dominated entity ( beherrschtes Unternehmen ) and/or the entity being obliged to share its profits with the other party of such profit and loss |
12
sharing agreement; it being understood that in such case the Administrative Agent shall only be entitled to enforce the amount of any Up-Stream German Assignment and/or Cross-Stream German Assignment if and to the extent that it may reasonably be expected (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) that such German Assignor (or, where the Assignor is a German GmbH & Co KG Assignor, its general partner) is able to recover the annual loss ( Jahresfehlbetrag ) which the dominating entity is obliged to pay pursuant to § 302 of the German Stock Corporation Act ( Aktiengesetz ). For the purpose of the determination of the amount to be recovered under this Clause 10.8, the provisions set forth under Clauses 10.4, 10.5 and 10.6 above shall apply mutatis mutandis ; and/or |
(b) | the relevant German Assignors Assignment granted under this Agreement being covered by a valuable consideration or recourse claim ( vollwertiger Gegenleistungs- oder Rückgewähranspruch ) within the meaning of § 30 (1) Sentence 2 of the German Limited Liability Companies Act; and/or | ||
(c) | the relevant German Assignors payment under this Assignment discharges a shareholder loan or a claim of similar effect within the meaning of § 30 (1) Sentence 3 of the German Limited Liability Companies Act. |
10.9 | For the avoidance of doubt, any balance sheet to be prepared for the determination of the Net Assets shall be prepared in accordance with relevant accounting principles. | |
10.10 | Nothing in this Clause 10 (Maintenance of Liable Capital) shall be interpreted as a restriction or limitation of the enforcement of the Assignment granted under this Agreement if and to the extent the Assignment granted under this Agreement secures own obligations of the relevant German Assignor or obligations of any of its direct or indirect Relevant Subsidiaries. | |
11. | NO RECOURSE | |
The Parties hereby agree that until the full and irrevocable satisfaction and discharge of all Secured Claims no rights and claims shall pass to or otherwise arise for the benefit of the Assignor by subrogation ( gesetzlicher Übergang von Forderungen und Rechten ) or otherwise, including any recourse claims, indemnification claims, claims arising from unjust enrichment ( ungerechtfertigte Bereicherung ) and any right to demand the assignment and/or transfer of any Secured Claim and/or Security, against any Obligor or grantor of Security which it may (but for this Clause 11) acquire as a result of: |
(i) | a payment or repayment by the Assignor of any debt of any other Obligor under any of the Loan Documents; or | ||
(ii) | in case of enforcement of the security constituted pursuant to this Agreement. |
13
12. | REPRESENTATIONS AND WARRANTIES |
(a) | it is validly existing and is neither: |
(i) | unable to pay its debts when they fall due ( zahlungsunfähig ) within the meaning of section 17 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(ii) | in a state of imminent inability to pay its debts when they fall due ( drohende Zahlungsunfähigkeit ) within the meaning of section 18 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iii) | over-indebted ( überschuldet ) within the meaning of section 19 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iv) | subject to any insolvency proceedings ( Insolvenzverfahren ) (or other or similar proceedings under the laws of any other applicable jurisdiction) or any refusal of opening insolvency proceedings for insufficiency of assets ( Abweisung mangels Masse ) (within the meaning of section 26 of the German Insolvency Code ( Insolvenzordnung )); |
(b) | it is the sole legal, record and beneficial owner ( Forderungs- bzw. Rechtsinhaber ) of the Existing Claims and the other rights and claims transferred or assigned (or to be transferred or assigned) pursuant to this Agreement; | ||
(c) | it has the right to freely dispose ( verfügen ) of the Existing Claims and the other rights and claims transferred or assigned (or to be transferred or assigned) pursuant to this Agreement and is not subject to any restrictions on assignment and such disposition does not violate the rights of any third person, any contractual undertaking of the Assignor to a third person or any regulatory orders; | ||
(d) | the Claims are not in any way encumbered nor subject to any rights of third persons; and | ||
(e) | no litigation, arbitration or administrative proceedings, which could reasonably be expected to have a material adverse effect, are presently in progress, pending or threatened which restrain, or threaten to restrain, the Assignor in respect of the entry into, the performance of or compliance with any of its obligations pursuant to this Agreement. |
13. | UNDERTAKINGS |
(a) | if any amount in excess of US$100,000 payable or security transferrable under or in connection with this Agreement shall be or become evidenced by any authorisation, approval, licence and consent such authorisation, approval, licence and consent shall be promptly delivered to the Administrative Agent, duly indorsed in a manner satisfactory to the Administrative Agent; | ||
(b) | other than in case of Claims which are not governed by German law, to maintain the security interest created by this Agreement as a perfected security interest and to defend such security |
14
interest against the claims and demands of all persons whomsoever subject to the rights of the Assignor under the Credit Agreement to dispose of the Claims; |
(c) | other than in case of Claims which are not governed by German law, at any time and from time to time, upon the written request of the Administrative Agent and at the sole expense of such Assignor, to promptly ( unverzüglich ) and duly execute and deliver, and have recorded such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, execute one or more collateral agreements (including assignments and releases) to obtain or preserve the security interest created by this Agreement in favour of the Administrative Agent and the other Secured Parties | ||
(d) | to inform the Administrative Agent promptly ( unverzüglich ) of any attachments ( Pfändung ) regarding any and all of the Claims or any other measures which can reasonably be expected to impair or jeopardise the Administrative Agents rights relating to the Claims. In the event of an attachment, the Assignor undertakes to forward to the Administrative Agent promptly ( unverzüglich ) a copy of the attachment order ( Pfändungsbeschluss ), the garnishee order ( Überweisungsbeschluss ) and all other documents necessary for a defence against the attachment. The Assignor shall inform the attaching creditor promptly ( unverzüglich ) about the Administrative Agents security interests pursuant to this Agreement; | ||
(e) | not to assign (or purport to assign), encumber or sell any of the Claims to any third person without the Administrative Agents prior written consent unless already permitted or so authorised pursuant to this Agreement or the Credit Agreement; | ||
(f) | to refrain from any acts or omissions which can reasonably be expected to have an adverse effect on the validity or enforceability of this Agreement or the security interests constituted thereunder (or any of them); and | ||
(g) | to notify any future Debtor promptly ( unverzüglich ) of this Agreement in accordance with Clause 5 (Disclosure and Notification). |
14. | RELEASE AND REASSIGNMENT | |
14.1 | Reassignment | |
After the full and irrevocable satisfaction and discharge of all Secured Claims, the Administrative Agent shall, at the cost and expense of the Assignor, reassign to the Assignor the Claims (together with any and all other rights and claims transferred or assigned to the Administrative Agent pursuant to this Agreement) and confirm in writing to the Assignor upon the Assignors request that the Assignments have ceased to exist. The Administrative Agent will, however, assign any Claims (together with any other right and claim transferred or assigned pursuant to this Agreement pertaining to them) to a third person to the extent that it is obliged to do so. | ||
14.2 | Release of Security | |
Even prior to the full and irrevocable satisfaction and discharge of all Secured Claims, the Administrative Agent is obliged to release, upon the Assignors request, and at the Assignors cost and expense, all or part of the Security insofar as the realisable value of the Security exceeds, not only temporarily, the Secured Claims by more than 10 %. The Administrative Agent may, at its discretion, determine which part of the Security shall be released but shall reasonably take into account the legitimate interest of the Assignor. |
15
14.3 | Evaluation |
(a) | Claims which cannot be assigned, or can be assigned only with the consent of a Debtor who has not consented; | ||
(b) | Claims which can be set off with an existing counterclaim; | ||
(c) | Claims which are subject to defences or objections due to the fact that the underlying services or performances have not been (fully) rendered; | ||
(d) | Claims which have not been assigned to the Administrative Agent by reason of an extended retention of title pursuant to Clause 6 (Assignment of claims against conditional vendors); and | ||
(e) | Claims the assignment of which is not valid due to the governing law and the Debtors domicile or principal place of business. |
14.4 | Adjustment | |
Each of the Parties has the right to demand an adjustment of the security deduction different from that specified above, if the previously agreed security deduction turns out to be too high or too low because of subsequent changes occurring after the date of this Agreement. | ||
15. | INDEMNITY | |
15.1 | Liability for Damages | |
The Administrative Agent shall not be liable for any loss or damage suffered by the Assignor save in respect of such loss or damage which is suffered as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent. | ||
15.2 | Indemnification | |
The Assignor shall indemnify and hold the Administrative Agent harmless and keep the Administrative Agent indemnified from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement which may be incurred by or made against the Administrative Agent for anything done or omitted in the exercise or purported exercise of the powers contained in this Agreement provided , that the Pledgor shall have no obligation hereunder to the extent that such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement are incurred by or made against the Administrative Agent as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent. |
16
17
Agreement ( Vertragslücke ). § 139 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall be waived hereby. |
19.2 | Waiver | |
No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies provided hereunder are cumulative and not exclusive of any rights or remedies provided by law. | ||
20. | AMENDMENTS | |
Changes to and amendments of this Agreement, including this Clause 20, must be made in writing. | ||
21. | SUCCESSORS, ASSIGNMENTS AND TRANSFERS | |
This Agreement shall be binding upon the Parties hereto and, to the extent legally possible, their respective successor(s) in law. The Administrative Agent shall be entitled to assign or otherwise transfer (i) any and all of its rights and (ii) (only with regard to any person which becomes a lender or an administrative agent under the Credit Agreement after the date of this Agreement) any and all of its duties pursuant to this Agreement to third parties. The Assignor is entitled to any such transfer with the prior written consent of the Administrative Agent only. | ||
22. | NOTICES AND THEIR LANGUAGE | |
22.1 | Notices | |
Any notice or other communication under or in connection with this Agreement to the Assignor or the Administrative Agent shall be in writing and shall be delivered personally, by post, email or fax and shall be sent to the address, email address or fax number of the party, and for the attention of the individual or department as set forth in Schedule 4 hereto or such other address, email address or fax number as is notified in writing by that party for this purpose to the Administrative Agent or, as the case may be, the Assignor, from time to time. | ||
22.2 | Language | |
Unless otherwise required by statutory German law or unless otherwise agreed in writing from time to time, any notice or other communication under or in connection with this Agreement shall be made in the English language or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail (unless the document is a statutory or other official document), except that where a German translation of a legal term appears in such text, the German translation shall prevail. | ||
23. | APPLICABLE LAW; JURISDICTION | |
23.1 | Governing Law | |
This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. |
18
23.2 | Jurisdiction |
19
20
21
[ insert date and place ] | [ Datum und Ort einfügen ] | |
|
||
Dear Sirs,
|
Sehr geehrte Damen und Herren, | |
|
||
We hereby give you notice that
pursuant to a assignment agreement
entered into by us in favour of
JPMorgan Chase Bank, N.A. (the
Administrative Agent
) dated
[
insert date of the assignment
agreement
], we have assigned to the
Administrative Agent by way of
security assignment all our present
and future claims against you
together with all ancillary rights
and claims pertaining thereto. We
are authorised by the Administrative
Agent to collect the assigned claims
in our own name and for our own
account and to exercise any rights
and claims in the ordinary course of
trading until and unless you receive
a notification from the
Administrative Agent or ourselves to
the contrary. Please see attached as
Annex 1 a copy of the assignment
agreement.
|
Wir teilen Ihnen hierdurch mit,
dass wir mit Abtretungsvertrag
(Zessionsvertrag) vom [
Datum des
Abtretungsvertrages einfügen
]
sämtliche bestehenden und künftigen
Forderungen mit allen
dazugehörenden Rechten und
Ansprüchen gegen Sie an JPMorgan
Chase Bank, N.A. (der
Sicherheitentreuhänder
) im Wege
der Sicherungsabtretung abgetreten
haben. Wir sind vom
Sicherheitentreuhänder ermächtigt,
alle Zahlungen betreffend die
abgetretenen Forderungen im eigenen
Namen und für eigene Rechnung
einzuziehen und entgegenzunehmen
und unsere Rechte im Rahmen des
gewöhnlichen Geschäftsbetriebs
auszuüben, wenn und soweit sie
keine anderslautende Mitteilung des
Sicherheitentreuhänders oder durch
uns erhalten. Als Anlage 1 erhalten
Sie eine Kopie des
Abtretungsvertrages.
|
|
Please acknowledge receipt of this
notice and your agreement with the
terms hereof by countersigning this
letter and returning the same to us.
|
Bitte bestätigen Sie den Erhalt dieser Benachrichtigung und Ihr Einverständnis mit den hierin enthaltenen Bestimmungen durch Gegenzeichnung dieser Benachrichtigung und Rücksendung an uns. | |
|
||
Yours faithfully,
|
Mit freundlichen Grüßen, | |
|
||
First Solar GmbH
|
First Solar GmbH | |
By:
|
||
|
|
|
Title:
|
Titel: | |
|
||
Acknowledgement of the debtor
|
Bestätigung des Drittschuldners | |
We acknowledge receipt of this
notification letter and confirm our
agreement with the terms thereof.
|
Wir bestätigen den Erhalt der Benachrichtigung und erklären unser Einverständnis mit den darin enthaltenen Bestimmungen. |
22
[
insert full name of the debtor
]
By: |
[ den vollständigen Namen des Drittschuldners einfügen ] | |
|
|
|
Title:
|
Titel: | |
Date:
|
Datum: |
23
24
To the Assignor:
|
First Solar GmbH | |
|
||
|
Rheinstr. 4B | |
|
55116 Mainz | |
|
||
|
Germany |
Attn.: |
Anja Lange
David Brady |
||
Fax: |
+49(0)6131-1443-500
+1-602-414-9462 |
||
Email: |
alange@firstsolar.com
dbrady@firstsolar.com |
To the Administrative Agent:
|
JPMorgan Chase Bank, N.A. | |
|
10 South Dearborn, 7 th Floor | |
|
Chicago, IL 60603 | |
|
||
|
Attention: Creston Wren | |
|
Telecopy: 001 (312) 385-7097 | |
|
Telephone: 001 (312) 385-7016 | |
|
||
With a copy to
|
JPMorgan Chase Bank, N.A. | |
|
125 London Wall | |
|
London | |
|
EC2Y 5AJ | |
|
||
|
Attention: Lucy Chick | |
|
Telecopy: +44(0)20 7325 6835 | |
|
Telephone: +44(0)20 7325 6926 | |
|
||
With a copy to
|
JPMorgan Chase Bank, N.A. | |
|
201 North Central Avenue, Floor
21Phoenix, AZ 85004 |
|
|
||
|
Attention: Mark Chambers | |
|
Telecopy: 001 (602) 221-1502 | |
|
Telephone: 001 (602) 221-2290 |
25
The Assignor
First Solar GmbH |
||||
/s/ David Brady | ||||
Name: | David Brady | |||
Function: Authorized Officer (Prokurist) | ||||
The Administrative Agent
JPMorgan Chase Bank, N.A. |
||||
/s/ Stefan Kuhm | ||||
Name: | Stefan Kuhm | |||
Function: Attorney-In-Fact | ||||
26
Page | ||||||
Clause | ||||||
|
||||||
1.
|
Interpretation | 1 | ||||
2.
|
Assignment | 6 | ||||
3.
|
Purpose of the Assignment | 6 | ||||
4.
|
List of claims | 7 | ||||
5.
|
Disclosure and notification | 7 | ||||
6.
|
Assignment of claims against conditional vendors | 8 | ||||
7.
|
The Assignors rights | 8 | ||||
8.
|
Book-keeping and data-processing | 8 | ||||
9.
|
Enforcement and collection | 9 | ||||
10.
|
Maintenance of liable capital | 10 | ||||
11.
|
No recourse | 13 | ||||
12.
|
Representations and warranties | 14 | ||||
13.
|
Undertakings | 14 | ||||
14.
|
Release and reassignment | 15 | ||||
15.
|
Indemnity | 16 | ||||
16.
|
Duration and independence | 17 | ||||
17.
|
The Security Trust Agreement | 17 | ||||
18.
|
Costs and expenses | 17 | ||||
19.
|
Partial invalidity; Waiver | 17 | ||||
20.
|
Amendments | 18 | ||||
21.
|
Successors, assignments and transfers | 18 | ||||
22.
|
Notices and their language | 18 | ||||
23.
|
Applicable law; Jurisdiction | 18 | ||||
|
||||||
Schedules | ||||||
|
||||||
1.
|
Original Lenders | 20 | ||||
2.
|
Original Obligors | 21 | ||||
3.
|
Forms | 22 | ||||
4.
|
Addresses for notices | 25 | ||||
|
||||||
Signatories | 26 |
(1) | FIRST SOLAR MANUFACTURING GMBH a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Frankfurt (Oder), Germany, under registration number HRB 11116 as assignor | |
(the Assignor ); and | ||
(2) | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ as assignee and administrative agent and trustee for the other Secured Parties (as defined below) | |
(the Administrative Agent ). |
(A) | The Original Lenders (as defined below) have agreed to make available to the Borrowers (as defined below) certain revolving credit facilities and certain letters of credit on the terms of and subject to the Credit Agreement (as defined below). | |
(B) | It is a condition to the Original Lenders (as defined below) making the credit facilities available to the Borrowers (as defined below) that the Assignor enters into this Agreement. | |
(C) | The other Secured Parties (as defined below) have appointed the Administrative Agent to act as their security trustee under German law ( Treuhänder ) pursuant to and in accordance with the Security Trust Agreement (as defined below) in relation to the security provided hereunder. |
1. | INTERPRETATION | |
1.1 | Definitions | |
In this Agreement: | ||
Additional Domestic Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Domestic Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Foreign Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Additional Foreign Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. |
1
Agent means: |
(a) | the Syndication Agent; | ||
(b) | the Documentation Agent; and | ||
(c) | the Administrative Agent. |
Assignment means each and any assignment of a Claim and of any other right and claim to the Administrative Agent for security purposes ( Sicherungsabtretung ) constituted pursuant to this Agreement. | ||
Assignment and Assumption Agreement means the assignment and assumption agreement, accepted by the Administrative Agent whereby a Lender (defined as assignor therein) sells and assigns to a person (defined as assignee therein) (such assignee becoming a Lender by the purchase and assumption arranged for thereunder), inter alia , any or all of the assignors rights and obligations in its capacity as a Lender under the Credit Agreement to the assignee. | ||
Borrower means any Domestic Borrower and any Foreign Borrower. | ||
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main, Germany. | ||
Claims means all present and future monetary receivables and claims which the Assignor holds or will hold ( Forderungsinhaber ) against any other member of the Group, including any such receivables and claims arising under or in connection with (i) any loan granted by the Assignor to any other member of the Group, or (ii) any promissory note evidencing loans or advances made to any other member of the Group (the Intercompany Receivables ), | ||
including, without limitation,: |
(A) | any right to payment held by the Assignor for goods sold or leased or for services rendered or funds advanced to any other member of the Group, whether or not such right is evidenced by any instrument or chattel paper and whether or not it has been earned by performance; | ||
(B) | claims resulting from any domination agreement ( Beherrschungsvertrag ) or any profit and loss sharing agreement ( Gewinnabführungsvertrag ) (excluding, however, such amount that the Assignor needs to be able to recover the annual loss ( Jahresfehlbetrag ); | ||
(C) | all ancillary rights ( Neben-, Hilfs- und Gestaltungsrechte ) pertaining thereto and/or to the respective underlying contractual relationship (other than ancillary relates pertaining to any Intercompany Receivable or its underlying contractual relationship); | ||
(D) | damage claims ( Schadensersatzansprüche ) and claims resulting from unjust enrichment ( ungerechtfertigte Bereicherung ) and any similar claims under any other applicable law; and | ||
(E) | where the Assignor maintains a genuine or non-genuine current account arrangement ( echtes oder unechtes Kontokorrentverhältnis ) with regard to any of such receivables or claims, all claims which arise from any existing or future current account balances, the right to determine the net balance and the right to terminate the current account relationship. |
To the extent that such Claims are in existence or outstanding at the time this Agreement comes into force, such Claims are referred to as the Existing Claims , and if such Claims will only come into existence in the future they are referred to as the Future Claims . |
2
Company means First Solar, Inc., a corporation organised under the laws of Delaware, United States of America, having its business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America. | ||
Credit Agreement means the New York law governed credit agreement dated 4 September 2009 between the Company and the Original Foreign Borrowers on one side and, inter alia, the Administrative Agent and the Original Lenders together with each new lender supplement, and assignment and assumption agreement relating thereto and any and each other agreement or instrument amending, modifying, extending, restating or supplementing it from time to time providing for an approximately $300,000,000 facility and an up to $100,000,000 Incremental Facility. | ||
Debtor means each debtor in respect of a Claim and Debtors means all such debtors. | ||
Default means a default as defined under the Credit Agreement. | ||
Documentation Agent means The Royal Bank of Scotland plc. | ||
Dollar or $ means the lawful currency of the United States of America. | ||
Domestic Borrower means the Company and any Additional Domestic Borrower. | ||
Domestic Guarantor means any Original Domestic Guarantor and any Additional Domestic Guarantor. | ||
Event of Default means an event (i) in which the commitments will automatically immediately terminate and the amounts outstanding are immediately due and payable (ii) which would entitle the Administrative Agent to, inter alia, prematurely terminate all or part of the total commitments under the Credit Agreement and/or to declare that all or part of the amounts outstanding under the Credit Agreement are immediately due and payable or payable on demand provided that any requirement for the giving of notice, the lapse of time or both has been satisfied. | ||
Foreign Borrower means any Original Foreign Borrower and any Additional Foreign Borrower. | ||
Foreign Guarantor means any Original Foreign Guarantor and any Additional Foreign Guarantor. | ||
German Borrower means First Solar Manufacturing GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which becomes a borrower under the Credit Agreement after the date of the Credit Agreement. | ||
German Guarantor means First Solar GmbH and First Solar Holdings GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which is required to provide for a guarantee in connection with the Loan Documents after the date of the Credit Agreement. | ||
Group means the Company and its Subsidiaries from time to time. | ||
Guarantee and Collateral Agreement means the guarantee and collateral agreement dated on or about the date of this Agreement made between, inter alia , First Solar, Inc. and certain of its Subsidiaries in favour of the Administrative Agent which will be attached as Exhibit A to the Credit Agreement. | ||
Guarantor means any Domestic Guarantor and any Foreign Guarantor. |
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Incremental Facility means any additional revolving loan provided either |
(i) | by a person that already is a lender under the Credit Agreement (defined as increasing lender therein) after having accepted an increase of its revolving commitment; or | ||
(ii) | by an assuming lender becoming a new lender under the Credit Agreement (defined as assuming lender therein) after having signed a New Lender Supplement, |
provided that the aggregate amount of the aggregate revolving loans will in no event exceed $400,000,000. | ||
Issuing Lender means the Original Issuing Lender and any other lender that has agreed in its sole discretion to issue a letter of credit to any Borrower or any other borrowing Subsidiary in connection with the Credit Agreement. | ||
Lender means an Original Lender and any person which becomes a lender under the Credit Agreement, including without limitation as a assuming lender of an Incremental Facility, after the date of this Agreement, unless, in each case, such person has ceased to be a lender under the Credit Agreement. | ||
Letter of Credit means any letter of credit issued or to be issued under the Credit Agreement, as such letter of credit may be amended, modified, restated, extended, renewed, increased, replaced or supplemented from time to time. | ||
Loan Document means |
(a) | the Credit Agreement; | ||
(b) | each Security Document; | ||
(c) | any Note; and | ||
(d) | any other document designated as such by the Administrative Agent and the Company. |
New Lender Supplement means a supplement to the Credit Agreement pursuant to which an assuming lender will become a party to the Credit Agreement with a revolving commitment in an amount agreed by such assuming lender. | ||
Note means any promissory note evidencing loans in accordance with the terms of the Credit Agreement, that may be amended, modified, supplemented, extended, renewed or replaced from time to time. | ||
Obligor means a Borrower and/or a Guarantor. | ||
Original Domestic Guarantors means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Guarantors. | ||
Original Foreign Borrower means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Borrowers. | ||
Original Foreign Guarantor means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Guarantors. | ||
Original Issuing Lender means JPMorgan Chase Bank, N.A. |
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Original Lender means each of the financial institutions set out in Schedule 1 hereto in its capacity as original lender to the Company and the Original Foreign Borrowers. | ||
Parties means the Assignor and the Administrative Agent. | ||
Person means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, any governmental authority or other entity of whatever nature. | ||
Secured Claims means all present and future rights and claims ( Ansprüche ) (whether actual or contingent and whether owned jointly or severally or in any other capacity whatsoever) (including claims from unjust enrichment ( ungerechtfertige Bereicherung ) and tort ( Delikt )) of any of the Secured Parties against any German Borrower and any German Guarantor under or in connection with the Loan Documents (or any of them) or any Letter of Credit, each as amended, varied, supplemented or novated from time to time, including without limitation, any increase of principal or interest, in each case together with all interest, costs, charges and expenses incurred by any Secured Party in connection with the protection and preservation or enforcement of its respective rights under the Loan Documents or any Letter of Credit. | ||
Secured Party means an Agent, the Lenders and any affiliate of any Lender to which any obligations under any Loan Document or under any Specified Swap Agreements are owed by any member of the Group, any Issuing Lender and any Swap Counterparty | ||
Security means any and all collateral granted with a view to securing the Secured Claims. | ||
Security Trust Agreement means the security trust agreement dated on or about the date hereof between, amongst others, the Administrative Agent and the Original Lenders pursuant to which the Administrative Agent has been granted certain rights and has assumed certain obligations in relation to certain Security Documents governed by German law. | ||
Security Document means |
(a) | the Guarantee and Collateral Agreement; and | ||
(b) | any other document evidencing or creating collateral over any asset of an Obligor to secure any obligation of an Obligor to a Secured Party under or in connection with, inter alia , the Credit Agreement. |
Specified Swap Agreement means any Swap Agreement entered into by the Company or any Guarantor and any lender or any affiliate of a lender in connection with any Loan Document. | ||
Subsidiary means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. And unless otherwise qualified, all references to a Subsidiary or to Subsidiaries in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company. | ||
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing |
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indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; except for any phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any of its Subsidiaries. |
Swap Counterparty means any person or entity providing a Specified Swap Agreement. | ||
Syndication Agent means Credit Suisse, Cayman Islands Branch. | ||
1.2 | Where the context so admits, the singular includes the plural and vice versa. | |
1.3 | The headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. | |
1.4 | Any reference in this Agreement to a defined document is a reference to that defined document as amended, varied, supplemented or novated from time to time. | |
1.5 | Any reference to a Party or other person (including any Obligor and any Secured Party) includes its respective successor(s) in law (including any universal successor ( Gesamtrechtsnachfolger ) of that person by way of merger ( Verschmelzung ), any other reorganisation contemplated in the German Transformation Act ( Umwandlungsgesetz ) or otherwise) and any assign(s) and transferee(s) of that person and, to the extent legally possible, any legal provision to the contrary is waived. | |
1.6 | Unless otherwise defined herein or unless the context otherwise requires, terms defined or referred to in the Credit Agreement shall have the same meaning when used herein. | |
2. | ASSIGNMENT | |
2.1 | The Assignor hereby assigns for security purposes ( Sicherungsabtretung ) all of the Claims to the Administrative Agent. | |
2.2 | The Existing Claims shall pass over to the Administrative Agent upon execution of this Agreement, and any Future Claims shall pass over to the Administrative Agent on the date such Future Claims arise. | |
2.3 | The Assignor hereby assigns and transfers all rights and claims in respect any kind of cheques ( Schecks ), bills of exchange ( Wechsel ), notes or commercial papers the Assignor receives for the settlement of any assigned Claim to the Administrative Agent. | |
2.4 | The Claims are assigned to the Administrative Agent together with all security interests securing the Claims (or any of them). To the extent that any such security interest is not assigned or transferred to the Administrative Agent as a matter of law, the Assignor hereby assigns or, as applicable, transfers each such security interest to the Administrative Agent. | |
2.5 | The Administrative Agent hereby accepts all such assignments and transfers referred to in this Clause 2. | |
3. | PURPOSE OF THE ASSIGNMENT | |
The Assignment is constituted in order to secure the full and irrevocable satisfaction and discharge of any and all Secured Claims. The Assignor hereby expressly agrees that the Assignment shall also secure any future extension or increase of the Secured Claims and the Secured Claims as extended or increased from time to time. |
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4. | LIST OF CLAIMS | |
4.1 | The Assignor shall provide to the Administrative Agent from time to time statements and schedules further identifying and describing the Claims and such other reports in connection therewith as the Administrative Agent may reasonably request, all in reasonable detail. | |
4.2 | At any time after a Default or an Event of Default has occurred and is continuing, at the Administrative Agents request, the Assignor shall provide to the Administrative Agent promptly ( unverzüglich ) an up-to-date list of all outstanding Claims (each such list a List of Claims ). | |
4.3 | Unless otherwise agreed between the Parties in writing, each List of Claims shall include the names and addresses of the Debtors as well as the outstanding amounts including the due dates for payment and (if applicable) the invoice date and number. The Assignor shall also |
(a) | specify which Claims are subject to: |
(i) | an assignment pursuant to an extended retention of title ( verlängerter Eigentumsvorbehalt ), and the name of the relevant seller retaining title ( Eigentumsvorbehaltsverkäufer ); | ||
(ii) | any prohibition on assignment ( Abtretungsverbot ) or any limitation of assignability (and specify the nature of such prohibition or limitation); and |
(b) | specify if, in relation to which Claims and in which aggregate amounts counterclaims are held, or have been asserted by, any Debtors as well as the legal basis ( Rechtsgrund ) of each such counterclaim. |
4.4 | The Assignor shall have the right to deliver the Lists of Claims (or the statements, schedules and reports under clause 4.1 and 4.2) on a readable and compatible disk or other electronic data storage medium. The Administrative Agent will contact the Assignor from time to time with a view to agreeing the necessary details. | |
4.5 | For the avoidance of doubt, the Administrative Agent shall also be entitled to any and all Claims if for any reason whatsoever any Claims are not or incompletely contained in any List of Claims. | |
5. | DISCLOSURE AND NOTIFICATION | |
5.1 | The Assignor shall promptly notify any Debtor of this Agreement by delivering a signed notification letter in the form of Schedule 3 Part 1 to this Agreement via registered mail with return receipt requested ( Einschreiben mit Rückschein ), with a copy to the Administrative Agent, or, as appropriate, by courier (with a delivery confirmation) and use its best efforts to procure that the respective Debtor executes an acknowledgement of notification substantially in the form of Schedule 3 Part 1 to this Agreement addressed to the Administrative Agent. | |
5.2 | The Assignor shall promptly deliver to the Administrative Agent copies of the aforementioned notification letters and the return receipts ( Rückschein ) or, if sent by courier, confirmation of delivery and if received by the Assignor, upon receipt, copies of the acknowledgements by the Debtors. |
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5.3 | Clauses 5.1 and 5.2 shall not apply to those Debtors that acknowledge receipt of the notification letter by signing the notification letter in the form of Schedule 3 Part 1, as long as the signed acknowledgement is send to the Administration Agent via pdf on or about the day this Agreement is signed. | |
6. | ASSIGNMENT OF CLAIMS AGAINST CONDITIONAL VENDORS | |
6.1 | If a Claim is subject to an assignment pursuant to an extended retention of title ( verlängerter Eigentumsvorbehalt ) arrangement with any supplier of the Assignor, the Assignment of such Claim to the Administrative Agent pursuant to this Agreement shall only become effective upon the extinction of such extended retention of title. As long as the supplier is only partly entitled to a Claim, the assignment of such Claim to the Administrative Agent hereunder shall be limited to the part of the Claim to which the Assignor is entitled. The other part of such Claim will be transferred to the Administrative Agent at such time as that part is no longer affected by any extended retention of title. | |
6.2 | The Assignor hereby assigns to the Administrative Agent its right to reassignment of the Claims assigned to a supplier by reason of an extended retention of title ( verlängerter Eigentumsvorbehalt ) as well as any contingent claims to the transfer of all proceeds paid out to the supplier, together with all rights pertaining thereto. The same applies to any possible inchoate right ( Anwartschaftsrecht ) with respect to the assignment of any Claims which are subject to a dissolving condition ( auflösende Bedingung ). The Administrative Agent hereby accepts each such assignment. | |
6.3 | The Administrative Agent is entitled (but not obliged) to extinguish the extended retention of title ( verlängerter Eigentumsvorbehalt ) by itself satisfying the supplier. | |
7. | THE ASSIGNORS RIGHTS | |
The Assignor shall be entitled to collect (including enforce) and exercise the Claims and any ancillary rights and claims assigned or otherwise transferred to the Administrative Agent pursuant to this Agreement in its ordinary course of business or otherwise in line with past practice until the Administrative Agent gives notice to the contrary which the Administrative Agent shall be entitled to do upon the occurrence of an Event of Default (for so long as such Event of Default is continuing). | ||
8. | BOOK-KEEPING AND DATA-PROCESSING | |
The following rights may only be exercised in line with the Credit Agreement: | ||
8.1 | If the Assignor employs a third party for its bookkeeping and/or data-processing, the Assignor hereby authorises the Administrative Agent to obtain the statements and schedules provided according to Clause 4.1 and the Lists of Claims provided according to Clause 4.2 directly from such third party at the Assignors expense. | |
8.2 | If proof or documents necessary to assert the Claims have been handed over by the Assignor to a third party (in particular a bookkeeping firm or a tax consultant) the Assignor hereby assigns to the Administrative Agent its right to demand from such third party the return of the information and documents. The Administrative Agent hereby accepts such assignment. The Assignor hereby undertakes to instruct the third party to provide the Administrative Agent upon its demand with such information and documents which are necessary to assert the relevant Claims. | |
8.3 | If the relevant Claims have been stored in an electronic data-processing system and a third party handles the electronic processing of data, the Assignor hereby assigns to the Administrative Agent |
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all rights against such third party relating to these services, and instructs such third party to handle the processing of data for the Administrative Agent upon its instructions as it did for the relevant Assignor. The Administrative Agent hereby accepts such assignment. |
8.4 | The Assignment in Clauses 8.2 or 8.3 shall not hinder the Assignor to demand the information and documents or data from third party handling these information, documents or data and the Assignor is hereby authorised to exercise all rights assigned to the Administrative Agent pursuant to Clause 8.2 and/or clause 8.3. | |
9. | ENFORCEMENT AND COLLECTION | |
9.1 | The Administrative Agents rights |
(a) | The Administrative Agent shall be entitled to realise any and all of the Claims (together with any and all other rights and claims transferred or assigned to the Administrative Agent pursuant to this Agreement) at any time after the occurrence of an Event of Default so long as such Event of Default is continuing if, in addition, any Foreign Borrower or Foreign Guarantor has failed to meet all or part of its payment obligations in respect of any of the Secured Claims. | ||
(b) | The Administrative Agent shall notify the Assignor of its intention to realise the Claims by giving 1 (one) weeks prior written notice to the Assignor. Such notice period is not necessary if (i) the Assignor has generally ceased to make payments, (ii) an application for the commencement of insolvency proceedings over the assets of the Assignor is filed (and not withdrawn) by the Assignor or by any third person and, in the latter case, it is not without delay established to the satisfaction of the Administrative Agent that the application is obviously frivolous or (iii) the observance of such notice period can reasonably be expected to adversely affect the enforceability of the security interests constituted pursuant to this Agreement (or any of them). | ||
(c) | Upon becoming entitled to enforce, pursuant to this Clause 9.1, the security interests constituted pursuant to this Agreement, the Administrative Agent may (i) collect, or arrange for the collection of, the Claims (or any of them) in its own name or for its own account, and/or (ii) exercise any and all rights and claims transferred or assigned to the Administrative Agent pursuant to this Agreement to the extent necessary to satisfy any outstanding Secured Claim. If no Event of Default is outstanding, the Administrative Agents right to collect the Claims shall cease and the Administrative Agent shall pay over to the Assignor all moneys received in connection with such collection and retained by it save to the extent any such moneys have been applied in payment of any of the Secured Claims. | ||
(d) | If and to the extent the Administrative Agent collects any Claims pursuant to this Clause 9.1, it may take all measures and enter into all agreements with such Debtors which it considers to be expedient. | ||
(e) | If and to the extent the Administrative Agent is entitled to collect the Claims pursuant to this Clause 9.1, he may request that copies of all documents relating to the Claims be handed over to the Administrative Agent and the Assignor hereby agrees to comply promptly with any such request. If no Event of Default is outstanding, the Administrative Agents shall return such copies received. | ||
(f) | The Administrative Agent may determine which part of the Security, if applicable, shall be used to satisfy the Secured Claims. |
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9.2 | Application of proceeds |
(a) | The proceeds resulting from the enforcement of the security interests constituted pursuant to this Agreement shall be applied by the Administrative Agent towards payment of the Secured Claims in accordance with the relevant provisions of the Credit Agreement. | ||
(b) | After the full and irrevocable satisfaction and discharge of all Secured Claims any remaining proceeds resulting from the enforcement of the security interests constituted pursuant to this Agreement shall be transferred to the Assignor at the cost and expense of the Assignor. |
10. | MAINTENANCE OF LIABLE CAPITAL | |
For the purpose of this Clause 10 (Maintenance of Liable Capital): | ||
Up-Stream and/or Cross-Stream German Assignment means in relation to a German Assignor any security interest granted under this Agreement directly or indirectly securing the obligations or liabilities of any member of the Relevant Group that is not a direct or indirect Relevant Subsidiary of such German Assignor. | ||
Relevant Group refers to a German Assignor and any affiliated company ( verbundenes Unternehmen ) of such German Assignor within the meaning of §§ 15 et. seq. of the German Stock Corporation Act ( Aktiengesetz ). | ||
Relevant Subsidiary means an entity of which a person owns directly or indirectly more than 50 percent (50%) of the voting capital or similar right of ownership. | ||
10.1 | The Administrative Agent agrees not to enforce the Assignment granted under this Agreement against any Assignor incorporated in Germany (each, a German Assignor ) irrespective of whether the relevant German Assignor is at the time of enforcement incorporated as |
| a limited liability company ( Gesellschaft mit beschränkter Haftung ) (a German GmbH Assignor ), or | ||
| a limited partnership ( Kommanditgesellschaft ) of which the general partner ( Komplementär ) is a limited liability company (a German GmbH & Co. KG Assignor ), |
if and to the extent the Assignment granted under this Agreement is an Up-Stream and/or Cross-Stream German Assignment in relation to such German Assignor, and (ii) if and to the extent the enforcement of such Up-Stream and/or Cross-Stream German Assignment would cause or constitute |
(a) | the German GmbH Assignors, or in the case of the German GmbH & Co. KG Assignor its general partners, net assets (the calculation of which shall take into account the captions reflected in § 266 (2) A, B and C of the German Commercial Code ( Handelsgesetzbuch )) less the German GmbH Assignors, or in case of a German GmbH & Co. KG Assingor its general partners, liabilities, provisions and liability reserves (the calculation of which shall take into account the captions reflected in § 266 (3) B, C and D of the German Commercial Code) (the Net Assets ) to be less than the registered share capital ( Stammkapital ) of the German GmbH Assignor, or in the case of a German GmbH & Co. KG Assignor of the registered share capital of its general partner ( Begründung einer Unterbilanz ); or | ||
(b) | an increase of a shortfall, if the Net Assets of the German GmbH Assingor, or in the case of a German GmbH & Co. KG Assignor, of its general partner, already fall short of the amount of the registered share capital ( Vertiefung einer Unterbilanz ); and/or |
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(c) | a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ). |
10.2 | For the purposes of the calculation of the Net Assets in Clause 10.1 above the following items shall be adjusted as follows: |
(a) | the amount of an increase in the registered share capital of the German GmbH Assignor, or in the case of a German GmbH & Co. KG Assignor of its general partner, |
(i) | that has been effected out of retained earnings ( Kapitalerhöhung aus Gesellschaftsmitteln ) without the prior written consent of the Administrative Agent after the date of the Credit Agreement; or | ||
(ii) | any amount of an increase in the registered share capital if and to the extent that it has not been fully paid in, |
shall be deducted from the registered share capital; | |||
(b) | any loans and other contractual liabilities incurred by the German GmbH Assignor, or in the case of a German GmbH & Co. KG, its general partner in violation of the Credit Agreement after the date of the Credit Agreement shall be disregarded as liabilities; | ||
and | |||
(c) | the Net Assets shall take into account reasonable costs of the Auditors Determination (as defined below), either as a reduction of assets or an increase of liabilities. |
10.3 | Any German Assignor, and in case of a German GmbH & Co. KG Assignor its general partner, shall realise, to the extent legally permitted and commercially justifiable, in a situation where after enforcement of the Assignment the German GmbH Assignor, or in the case of a German GmbH & Co. KG Assignor its general partner, would not have Net Assets in excess of its respective registered share capital, any and all of its assets, and in case of a German GmbH & Co. KG Assignor its general partners assets, that are shown in the respective balance sheet with a book value ( Buchwert ) that is significantly lower than the market value of the asset if such asset is not necessary for the relevant German Assignors, and in case of a German GmbH & Co. KG Assignor its general partners, business ( betriebsnotwendig ). | |
10.4 | Subject to Clause 10.1, after the receipt of a written demand by the Administrative Agent to make a payment under any Assignment granted under this Agreement (the Enforcement Notice ), a copy of the relevant determination shall be drawn up in good faith (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) and made available to the Administrative Agent by the relevant German Assignor (the Management Determination ) within 10 (ten) Business Days of the German Assignors receipt of the Enforcement Notice stating |
(a) | if and to what extent the Assignment granted hereunder is an Up-Stream and/or Cross-Stream German Assignment; | ||
(b) | which amount of such Up-Stream and/or Cross-Stream German Assignment can be enforced without causing the Net Assets of the relevant German Assignor, or, where the Assignor is a German GmbH & Co KG Assignor, its general partner, to fall (or to fall further) below its respective registered share capital (taking into account the adjustments set out in Clauses 10.2 above and the value realisation pursuant to Clause 10.3 above), and |
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(c) | which amount of such Up-Stream and/or Cross-Stream German Assignment can be enforced without constituting a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ), |
(such amount calculated according to (b) (c), the Recovery Amount ). Subject to Clause 10.6 below, the Administrative Agent shall only be entitled to enforce the amount of any Up-Stream and/or Cross-Stream German Assignment up to the Recovery Amount. | ||
10.5 | Following the Administrative Agents receipt of a Management Determination, the relevant German Assignor shall provide within 15 (fifteen) Business Days a determination by auditors of international standing and reputation appointed by the relevant German Assignor or, in the case of a GmbH & Co. KG, its general partner (the Auditors Determination ) of (i) the Recovery Amount (such determination to take into account the adjustments set out in Clauses 10.2 and the value realisation pursuant to Clause 10.3 above) and (ii) an estimate of the liabilities, damages, costs, fees and expenses reasonably expected to result from a liquidation of the relevant German Assignor, and such German Assignor shall, not later than 10 (ten) Business Days after receipt by it of such Auditors Determination, pay to the Administrative Agent the additional amount (if any) by which the Recovery Amount determined in the Auditors Determination exceeds the amount (if any) paid to any of the Administrative Agent pursuant to Clause 10.4 above, and the Administrative Agent shall repay any enforcement amount received in excess of the Recovery Amount determined in the Auditors Determination (if any) to the respective German Assignor or, in the case of a German GmbH & Co. KG Assignor, its general partner. | |
10.6 | If (i) the Administrative Agent disagrees with the Auditors Determination or (ii) the relevant German Assignor (or in the case of a German GmbH & Co KG Assignor, its general partner) fails to deliver an Management Determination within 10 (ten) Business Days of the German Assignors receipt of the Enforcement Notice or (iii) an Auditors Determination within 15 (fifteen) Business Days following the Administrative Agents receipt of a Management Determination, the Administrative Agent shall be entitled to further pursue in court its payment claims under this Assignment granted by the respective German Assignor in excess of the amounts paid or payable pursuant to Clauses 10.4 and 10.5 above, by claiming in court that demanding payment under the German Assignment against the relevant German Assignor does not violate §§ 30, 31 of the German Limited Liability Companies Act and would not constituting a payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ) (taking into account the calculation of the Net Assets as set out in Clause 10.1 and the adjustments as set out in Clause 10.2 and the value realisation pursuant to Clause 10.3 above). Notwithstanding the foregoing, and for the avoidance of doubt, no German Assignor shall be obliged to pay any such amount on demand. | |
10.7 | The limitations set out in Clause 10.1 (a) and (b) and in Clause 10.4 (b) shall not apply if and to the extent the Assignment by the relevant German Assignor secures any amounts borrowed under the Credit Agreement which are lent or on-lent to such German Assignor or any of its direct or indirect Relevant Subsidiaries from time to time and have not been repaid. | |
10.8 | The limitations provided for in Clause 10.1 (a) and (b) and in Clause 10.4 (b) shall not apply so long as: |
(a) | the affected German Assignor (or, in the case of a GmbH & Co. KG, its general partner) is a party to a profit and loss sharing agreement ( Gewinnabführungsvertrag ) and/or a domination agreement ( Beherrschungsvertrag ) where such German Assignor (or, in the case of a GmbH & Co. KG, its general partner) is the dominated entity ( beherrschtes Unternehmen ) and/or the entity being obliged to share its profits with the other party of such profit and loss |
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sharing agreement; it being understood that in such case the Administrative Agent shall only be entitled to enforce the amount of any Up-Stream German Assignment and/or Cross-Stream German Assignment if and to the extent that it may reasonably be expected (applying the due care of an ordinary businessman ( Sorgfalt eines ordentlichen Geschäftsmannes )) that such German Assignor (or, where the Assignor is a German GmbH & Co KG Assignor, its general partner) is able to recover the annual loss ( Jahresfehlbetrag ) which the dominating entity is obliged to pay pursuant to § 302 of the German Stock Corporation Act ( Aktiengesetz ). For the purpose of the determination of the amount to be recovered under this Clause 10.8, the provisions set forth under Clauses 10.4, 10.5 and 10.6 above shall apply mutatis mutandis ; and/or |
(b) | the relevant German Assignors Assignment granted under this Agreement being covered by a valuable consideration or recourse claim ( vollwertiger Gegenleistungs- oder Rückgewähranspruch ) within the meaning of § 30 (1) Sentence 2 of the German Limited Liability Companies Act; and/or | ||
(c) | the relevant German Assignors payment under this Assignment discharges a shareholder loan or a claim of similar effect within the meaning of § 30 (1) Sentence 3 of the German Limited Liability Companies Act. |
10.9 | For the avoidance of doubt, any balance sheet to be prepared for the determination of the Net Assets shall be prepared in accordance with relevant accounting principles. | |
10.10 | Nothing in this Clause 10 (Maintenance of Liable Capital) shall be interpreted as a restriction or limitation of the enforcement of the Assignment granted under this Agreement if and to the extent the Assignment granted under this Agreement secures own obligations of the relevant German Assignor or obligations of any of its direct or indirect Relevant Subsidiaries. | |
11. | NO RECOURSE | |
The Parties hereby agree that until the full and irrevocable satisfaction and discharge of all Secured Claims no rights and claims shall pass to or otherwise arise for the benefit of the Assignor by subrogation ( gesetzlicher Übergang von Forderungen und Rechten ) or otherwise, including any recourse claims, indemnification claims, claims arising from unjust enrichment ( ungerechtfertigte Bereicherung ) and any right to demand the assignment and/or transfer of any Secured Claim and/or Security, against any Obligor or grantor of Security which it may (but for this Clause 11) acquire as a result of: |
(i) | a payment or repayment by the Assignor of any debt of any other Obligor under any of the Loan Documents; or | ||
(ii) | in case of enforcement of the security constituted pursuant to this Agreement. |
Until the full and irrevocable satisfaction and discharge of all Secured Claims, the Assignor furthermore undertakes not to exercise ( pactum de non petendo ), and not to purport to exercise, any such rights and claims which may pass to it or otherwise arise for its benefit notwithstanding this Clause 11 or would pass to it or otherwise arise for its benefit but for this Clause 11. | ||
The provisions under this Clause 11 shall not apply with regard to a recourse claim, if the parties agreed to allow such recourse of the Assignor against any of the other Parties thereby taking at all times into account the terms of the Credit Agreement and any other Loan Document. |
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12. | REPRESENTATIONS AND WARRANTIES | |
The Assignor represents and warrants ( selbständiges Garantieversprechen im Sinne von § 311 Bürgerliches Gesetzbuch ) to the Administrative Agent that on the date of this Agreement subject to any liens, third party rights and restrictions permitted to exist under the Credit Agreement: |
(a) | it is validly existing and is neither: |
(i) | unable to pay its debts when they fall due ( zahlungsunfähig ) within the meaning of section 17 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(ii) | in a state of imminent inability to pay its debts when they fall due ( drohende Zahlungsunfähigkeit ) within the meaning of section 18 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iii) | over-indebted ( überschuldet ) within the meaning of section 19 of the German Insolvency Code ( Insolvenzordnung ); nor | ||
(iv) | subject to any insolvency proceedings ( Insolvenzverfahren ) (or other or similar proceedings under the laws of any other applicable jurisdiction) or any refusal of opening insolvency proceedings for insufficiency of assets ( Abweisung mangels Masse ) (within the meaning of section 26 of the German Insolvency Code ( Insolvenzordnung )); |
(b) | it is the sole legal, record and beneficial owner ( Forderungs- bzw. Rechtsinhaber ) of the Existing Claims and the other rights and claims transferred or assigned (or to be transferred or assigned) pursuant to this Agreement; | ||
(c) | it has the right to freely dispose ( verfügen ) of the Existing Claims and the other rights and claims transferred or assigned (or to be transferred or assigned) pursuant to this Agreement and is not subject to any restrictions on assignment and such disposition does not violate the rights of any third person, any contractual undertaking of the Assignor to a third person or any regulatory orders; | ||
(d) | the Claims are not in any way encumbered nor subject to any rights of third persons; and | ||
(e) | no litigation, arbitration or administrative proceedings, which could reasonably be expected to have a material adverse effect, are presently in progress, pending or threatened which restrain, or threaten to restrain, the Assignor in respect of the entry into, the performance of or compliance with any of its obligations pursuant to this Agreement. |
13. | UNDERTAKINGS | |
The Assignor undertakes: |
(a) | if any amount in excess of US$100,000 payable or security transferrable under or in connection with this Agreement shall be or become evidenced by any authorisation, approval, licence and consent such authorisation, approval, licence and consent shall be promptly delivered to the Administrative Agent, duly indorsed in a manner satisfactory to the Administrative Agent; | ||
(b) | other than in case of Claims which are not governed by German law, to maintain the security interest created by this Agreement as a perfected security interest and to defend such security |
14
interest against the claims and demands of all persons whomsoever subject to the rights of the Assignor under the Credit Agreement to dispose of the Claims; |
(c) | other than in case of Claims which are not governed by German law, at any time and from time to time, upon the written request of the Administrative Agent and at the sole expense of such Assignor, to promptly ( unverzüglich ) and duly execute and deliver, and have recorded such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, execute one or more collateral agreements (including assignments and releases) to obtain or preserve the security interest created by this Agreement in favour of the Administrative Agent and the other Secured Parties | ||
(d) | to inform the Administrative Agent promptly ( unverzüglich ) of any attachments ( Pfändung ) regarding any and all of the Claims or any other measures which can reasonably be expected to impair or jeopardise the Administrative Agents rights relating to the Claims. In the event of an attachment, the Assignor undertakes to forward to the Administrative Agent promptly ( unverzüglich ) a copy of the attachment order ( Pfändungsbeschluss ), the garnishee order ( Überweisungsbeschluss ) and all other documents necessary for a defence against the attachment. The Assignor shall inform the attaching creditor promptly ( unverzüglich ) about the Administrative Agents security interests pursuant to this Agreement; | ||
(e) | not to assign (or purport to assign), encumber or sell any of the Claims to any third person without the Administrative Agents prior written consent unless already permitted or so authorised pursuant to this Agreement or the Credit Agreement; | ||
(f) | to refrain from any acts or omissions which can reasonably be expected to have an adverse effect on the validity or enforceability of this Agreement or the security interests constituted thereunder (or any of them); and | ||
(g) | to notify any future Debtor promptly ( unverzüglich ) of this Agreement in accordance with Clause 5 (Disclosure and Notification). |
14. | RELEASE AND REASSIGNMENT | |
14.1 | Reassignment | |
After the full and irrevocable satisfaction and discharge of all Secured Claims, the Administrative Agent shall, at the cost and expense of the Assignor, reassign to the Assignor the Claims (together with any and all other rights and claims transferred or assigned to the Administrative Agent pursuant to this Agreement) and confirm in writing to the Assignor upon the Assignors request that the Assignments have ceased to exist. The Administrative Agent will, however, assign any Claims (together with any other right and claim transferred or assigned pursuant to this Agreement pertaining to them) to a third person to the extent that it is obliged to do so. | ||
14.2 | Release of Security | |
Even prior to the full and irrevocable satisfaction and discharge of all Secured Claims, the Administrative Agent is obliged to release, upon the Assignors request, and at the Assignors cost and expense, all or part of the Security insofar as the realisable value of the Security exceeds, not only temporarily, the Secured Claims by more than 10 %. The Administrative Agent may, at its discretion, determine which part of the Security shall be released but shall reasonably take into account the legitimate interest of the Assignor. |
15
14.3 | Evaluation | |
For the purpose of calculating the realisable value of the Claims the following shall be deducted from the nominal value of all Claims: |
(a) | Claims which cannot be assigned, or can be assigned only with the consent of a Debtor who has not consented; | ||
(b) | Claims which can be set off with an existing counterclaim; | ||
(c) | Claims which are subject to defences or objections due to the fact that the underlying services or performances have not been (fully) rendered; | ||
(d) | Claims which have not been assigned to the Administrative Agent by reason of an extended retention of title pursuant to Clause 6 (Assignment of claims against conditional vendors); and | ||
(e) | Claims the assignment of which is not valid due to the governing law and the Debtors domicile or principal place of business. |
A further security deduction of 10 per cent. in order to take into account the risk of distress of a Claim shall then be deducted from the nominal value calculated in accordance with this Clause 14.3. | ||
14.4 | Adjustment | |
Each of the Parties has the right to demand an adjustment of the security deduction different from that specified above, if the previously agreed security deduction turns out to be too high or too low because of subsequent changes occurring after the date of this Agreement. | ||
15. | INDEMNITY | |
15.1 | Liability for Damages | |
The Administrative Agent shall not be liable for any loss or damage suffered by the Assignor save in respect of such loss or damage which is suffered as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent. | ||
15.2 | Indemnification | |
The Assignor shall indemnify and hold the Administrative Agent harmless and keep the Administrative Agent indemnified from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement which may be incurred by or made against the Administrative Agent for anything done or omitted in the exercise or purported exercise of the powers contained in this Agreement provided, that the Pledgor shall have no obligation hereunder to the extent that such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement are incurred by or made against the Administrative Agent as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent. |
16
17
Agreement ( Vertragslücke ). § 139 of the German Civil Code ( Bürgerliches Gesetzbuch ) shall be waived hereby. |
19.2 | Waiver | |
No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies provided hereunder are cumulative and not exclusive of any rights or remedies provided by law. | ||
20. | AMENDMENTS | |
Changes to and amendments of this Agreement, including this Clause 20, must be made in writing. | ||
21. | SUCCESSORS, ASSIGNMENTS AND TRANSFERS | |
This Agreement shall be binding upon the Parties hereto and, to the extent legally possible, their respective successor(s) in law. The Administrative Agent shall be entitled to assign or otherwise transfer (i) any and all of its rights and (ii) (only with regard to any person which becomes a lender or an administrative agent under the Credit Agreement after the date of this Agreement) any and all of its duties pursuant to this Agreement to third parties. The Assignor is entitled to any such transfer with the prior written consent of the Administrative Agent only. | ||
22. | NOTICES AND THEIR LANGUAGE | |
22.1 | Notices | |
Any notice or other communication under or in connection with this Agreement to the Assignor or the Administrative Agent shall be in writing and shall be delivered personally, by post, email or fax and shall be sent to the address, email address or fax number of the party, and for the attention of the individual or department as set forth in Schedule 4 hereto or such other address, email address or fax number as is notified in writing by that party for this purpose to the Administrative Agent or, as the case may be, the Assignor, from time to time. | ||
22.2 | Language | |
Unless otherwise required by statutory German law or unless otherwise agreed in writing from time to time, any notice or other communication under or in connection with this Agreement shall be made in the English language or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail (unless the document is a statutory or other official document), except that where a German translation of a legal term appears in such text, the German translation shall prevail. | ||
23. | APPLICABLE LAW; JURISDICTION | |
23.1 | Governing Law | |
This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. |
18
23.2 | Jurisdiction | |
The place of jurisdiction for all Parties shall be Frankfurt am Main, Federal Republic of Germany. The Administrative Agent, however, shall also be entitled to take legal action against the Assignor in any other competent court of law having jurisdiction over the Assignor or any of its assets. |
19
20
21
[ insert date and place ] | [ Datum und Ort einfügen ] | |
|
||
Dear Sirs,
|
Sehr geehrte Damen und Herren, | |
|
||
We hereby give you notice that
pursuant to a assignment agreement
entered into by us in favour of
JPMorgan Chase Bank, N.A. (the
Administrative Agent
) dated
[
insert date of the assignment
agreement
], we have assigned to the
Administrative Agent by way of
security assignment all our present
and future claims against you
together with all ancillary rights
and claims pertaining thereto. We
are authorised by the Administrative
Agent to collect the assigned claims
in our own name and for our own
account and to exercise any rights
and claims in the ordinary course of
trading until and unless you receive
a notification from the
Administrative Agent or ourselves to
the contrary. Please see attached as
Annex 1 a copy of the assignment
agreement.
Please acknowledge receipt of this notice and your agreement with the terms hereof by countersigning this letter and returning the same to us. |
Wir teilen Ihnen hierdurch mit,
dass wir mit Abtretungsvertrag
(Zessionsvertrag) vom [
Datum des
Abtretungsvertrages einfügen
]
sämtliche bestehenden und künftigen
Forderungen mit allen
dazugehörenden Rechten und
Ansprüchen gegen Sie an JPMorgan
Chase Bank, N.A. (der
Sicherheitentreuhänder
) im Wege
der Sicherungsabtretung abgetreten
haben. Wir sind vom
Sicherheitentreuhänder ermächtigt,
alle Zahlungen betreffend die
abgetretenen Forderungen im eigenen
Namen und für eigene Rechnung
einzuziehen und entgegenzunehmen
und unsere Rechte im Rahmen des
gewöhnlichen Geschäftsbetriebs
auszuüben, wenn und soweit sie
keine anderslautende Mitteilung des
Sicherheitentreuhänders oder durch
uns erhalten. Als Anlage 1 erhalten
Sie eine Kopie des
Abtretungsvertrages.
Bitte bestätigen Sie den Erhalt dieser Benachrichtigung und Ihr Einverständnis mit den hierin enthaltenen Bestimmungen durch Gegenzeichnung dieser Benachrichtigung und Rücksendung an uns. |
|
|
||
Yours faithfully,
|
Mit freundlichen Grüßen, | |
|
||
First Solar Manufacturing GmbH
|
First Solar Manufacturing GmbH
|
|
By:
Name:
Title: |
Titel: |
|
|
||
Acknowledgement of the debtor
|
Bestätigung des Drittschuldners | |
We acknowledge receipt of this
notification letter and confirm our
agreement with the terms thereof.
|
Wir bestätigen den Erhalt der Benachrichtigung und erklären unser Einverständnis mit den darin enthaltenen Bestimmungen. |
22
[
insert full name of the debtor
]
|
[
den vollständigen Namen des Drittschuldners einfügen
]
|
|
By:
Name:
Title: Date: |
Titel: Datum: |
23
24
To the Assignor:
|
First Solar Manufacturing GmbH | |
|
||
|
Marie-Curie-Str. 3 | |
|
15236 Frankfurt (Oder) | |
|
||
|
Germany | |
|
||
|
Attn.: Anja Lange | |
|
David Brady | |
|
||
|
Fax: +49(0)6131-1443-500 | |
|
+1-602-414-9462 | |
|
||
|
Email: alange@firstsolar.com | |
|
dbrady@firstsolar.com | |
|
||
To the Administrative Agent:
|
JPMorgan Chase Bank, N.A. | |
|
10 South Dearborn, 7 th Floor | |
|
Chicago, IL 60603 | |
|
||
|
Attention: Creston Wren | |
|
Telecopy: 001 (312) 385-7097 | |
|
Telephone: 001 (312) 385-7016 | |
|
||
With a copy to
|
JPMorgan Chase Bank, N.A. | |
|
125 London Wall | |
|
London | |
|
EC2Y 5AJ | |
|
||
|
Attention: Lucy Chick | |
|
Telecopy: +44(0)20 7325 6835 | |
|
Telephone: +44(0)20 7325 6926 | |
|
||
With a copy to
|
JPMorgan Chase Bank, N.A. | |
|
201 North Central Avenue, Floor | |
|
21Phoenix, AZ 85004 | |
|
||
|
Attention: Mark Chambers | |
|
Telecopy: 001 (602) 221-1502 | |
|
Telephone: 001 (602) 221-2290 |
25
The Assignor
First Solar Manufacturing GmbH |
||||
/s/ David Brady | ||||
Name: | David Brady | |||
Function: Authorized Officer (Prokurist) | ||||
The Administrative Agent
JPMorgan Chase Bank, N.A. |
||||
/s/ Stefan Kuhm | ||||
Name: | Stefan Kuhm | |||
Function: Attorney-In-Fact | ||||
26
Page | ||||||
|
||||||
Clause | ||||||
|
||||||
1.
|
Interpretation | 2 | ||||
2.
|
Declaration of Trust and Appointment as Administrator | 6 | ||||
3.
|
Purpose of the German Security | 7 | ||||
4.
|
Power of Attorney | 7 | ||||
5.
|
Joint Creditor; Parallel Debt | 7 | ||||
6.
|
New Parties | 8 | ||||
7.
|
Appointment of a Security Grantors Agent | 9 | ||||
8.
|
Responsibility | 9 | ||||
9.
|
Possession of Documents | 9 | ||||
10.
|
Realisation | 9 | ||||
11.
|
Indemnity | 9 | ||||
12.
|
Duration | 10 | ||||
13.
|
Costs and Expenses | 10 | ||||
14.
|
Partial Invalidity; Waiver | 10 | ||||
15.
|
Amendments | 10 | ||||
16.
|
Successors | 10 | ||||
17.
|
Notices and their Languages | 11 | ||||
18.
|
Applicable Law; Jurisdiction | 11 | ||||
|
||||||
Schedule | ||||||
|
||||||
1.
|
Original Lenders | 13 | ||||
2.
|
Original Obligors | 14 | ||||
|
Part 1 Original Borrowers | 14 | ||||
|
Part 2 Original Guarantors | 14 | ||||
3.
|
New Secured Partys Accession Agreement | 15 | ||||
4.
|
New Security Grantors Accession Agreement | 17 | ||||
5.
|
German Security Documents | 19 | ||||
6.
|
Addresses for Notices | 20 | ||||
7.
|
Process Agent Appointment Letter | 23 | ||||
|
||||||
Signatories | 25 |
(1) | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION , a banking association organised under the laws of the United States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting through its London Branch, at 125 London Wall, London EC2Y 5AJ as original pledgee, Administrative Agent for the other Secured Parties and as proxy without power of attorney for Future Pledgees (each as defined below) | |
(the Administrative Agent ); | ||
(2) | the other SECURED PARTIES (as defined in Clause 1.1 (Definitions) below); and | |
(3) | FIRST SOLAR, INC. , a corporation organised under the laws of Delaware, United States of America, having its business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America as security grantor, | |
(the Original Security Grantor 1 ); | ||
(4) | FIRST SOLAR HOLDINGS GMBH a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 40090 as security grantor, | |
(the Original Security Grantor 2 ); | ||
(5) | FIRST SOLAR GMBH a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Mainz, Germany, under registration number HRB 8855 as security grantor, | |
(the Original Security Grantor 3 ); and | ||
(6) | FIRST SOLAR MANUFACTURING GMBH a limited liability company ( Gesellschaft mit beschränkter Haftung ) organised under the laws of the Federal Republic of Germany, registered in the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Frankfurt (Oder), Germany, under registration number HRB 11116FF as security grantor | |
(the Original Security Grantor 4 ). | ||
The Original Security Grantor 1, the Original Security Grantor 2, the Original Security Grantor 3 and the Original Security Grantor 4 are hereinafter collectively referred to as the Original Security Grantors and each as an Original Security Grantor . | ||
The Administrative Agent, the other Secured Parties and the Security Grantors (as defined below) are hereinafter collectively referred to as the Parties . |
(A) | The Original Lenders (as defined below) have agreed to make available to the Borrowers (as defined below) certain revolving credit facilities and certain letters of credit on the terms of and subject to the Credit Agreement (as defined below). |
(B) | It is a condition to the Original Lenders (as defined below) making the credit facilities available to the Borrowers (as defined below) that the Original Security Grantors enters into this Agreement. | |
(C) | The Administrative Agent, the other Secured Parties (as defined below) and the Original Security Grantors have agreed to enter into this Agreement for the purpose of conferring certain rights and obligations on the Administrative Agent. |
1. | INTERPRETATION | |
1.1 | Definitions | |
In this Agreement: | ||
Additional Domestic Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Domestic Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is organised under the laws of any jurisdiction within the United States of America. | ||
Additional Foreign Borrower means a company which becomes a borrower under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Additional Foreign Guarantor means a company which becomes a guarantor under the Credit Agreement after the date of the Credit Agreement that is not an Additional Domestic Borrower. | ||
Agent means: |
(a) | the Syndication Agent; | ||
(b) | the Documentation Agent; and | ||
(c) | the Administrative Agent. |
Assignment and Assumption Agreement means the assignment and assumption agreement, accepted by the Administrative Agent whereby a Lender (defined as assignor therein) sells and assigns to a person (defined as assignee therein) (such assignee becoming a Lender by the purchase and assumption arranged for thereunder), inter alia , any or all of the assignors rights and obligations in its capacity as a Lender under the Credit Agreement to the assignee. | |||
Borrower means any Domestic Borrower and any Foreign Borrower. | |||
Beneficiaries means each and any of the Secured Parties other than the Administrative Agent. | |||
Company means First Solar, Inc., a corporation organised under the laws of Delaware, United States of America, having its business address at 350 West Washington Street, Suite 600, Tempe, Arizona 85281, United States of America. | |||
Credit Agreement means the New York law governed credit agreement dated on or about the date of this Agreement between the Company and the Original Foreign Borrowers on one side and, inter alia, the Administrative Agent and the Original Lenders together with each new lender supplement, |
and assignment and assumption agreement relating thereto and any and each other agreement or instrument amending, modifying, extending, restating or supplementing it from time to time providing for an approximately $300,000,000 facility and an up to $100,000,000 Incremental Facility. | |||
Documentation Agent means The Royal Bank of Scotland plc. | |||
Dollar or $ means the lawful currency of the United States of America. | |||
Domestic Borrower means the Company and any Additional Domestic Borrower. | |||
Domestic Guarantor means any Original Domestic Guarantor and any Additional Domestic Guarantor. | |||
Foreign Borrower means any Original Foreign Borrower and any Additional Foreign Borrower. | |||
Foreign Guarantor means any Original Foreign Guarantor and any Additional Foreign Guarantor. | |||
German Borrower means First Solar Manufacturing GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which becomes a borrower under the Credit Agreement after the date of the Credit Agreement. | |||
German Guarantor means First Solar GmbH and First Solar Holdings GmbH and any other person or entity that is organised under the laws of the Federal Republic of Germany which is required to provide for a guarantee in connection with the Loan Documents after the date of the Credit Agreement. | |||
German Security means any and all collateral evidenced by or expressed to be created pursuant to a German Security Document. | |||
Germany Security Document means any agreement, document or other arrangement governed by German law by or pursuant to which security over any asset of any member of the Group to secure any obligation of any Obligor to a Secured Party under the Loan Documents is evidenced or expressed to be created, including but not limited to the agreements, documents and other arrangements set out in Schedule 5 to this Agreement. | |||
Group means the Company and its Subsidiaries from time to time. | |||
Guarantee and Collateral Agreement means the guarantee and collateral agreement dated on or about the date of this Agreement made between, inter alia , First Solar, Inc. in favour of the Administrative Agent which will be attached as Exhibit A to the Credit Agreement. | |||
Guarantor means any Domestic Guarantor and any Foreign Guarantor. |
Incremental Facility means any additional revolving loan provided either |
(i) | by a person that already is a lender under the Credit Agreement (defined as increasing lender therein) after having accepted an increase of its revolving commitment; or | ||
(ii) | by an assuming lender becoming a new lender under the Credit Agreement (defined as assuming lender therein) after having signed a New Lender Supplement, |
provided that the aggregate amount of the aggregate revolving loans will in no event exceed $400,000,000. | |||
Issuing Lender means the Original Issuing Lender and any other lender that has agreed in its sole discretion to issue a letter of credit to any Borrower or any other borrowing Subsidiary in connection with the Credit Agreement. | |||
Lender means an Original Lender and any person which becomes a lender under the Credit Agreement, including without limitation as a assuming lender of an Incremental Facility, after the date of this Agreement, unless, in each case, such person has ceased to be a lender under the Credit Agreement. | |||
Letter of Credit means any letter of credit issued or to be issued under the Credit Agreement, as such letter of credit may be amended, modified, restated, extended, renewed, increased, replaced or supplemented from time to time. | |||
Loan Document means |
(a) | the Credit Agreement; | ||
(b) | each Security Document; | ||
(c) | any Note; and | ||
(d) | any other document designated as such by the Administrative Agent and the Company. |
New Lender Supplement means a supplement to the Credit Agreement pursuant to which an assuming lender will become a party to the Credit Agreement with a revolving commitment in an amount agreed by such assuming lender. | |||
New Secured Party has the meaning given to this term in Clause 6.1. | |||
New Secured Partys Accession Agreement has the meaning given to this term in Clause 6.1. | |||
New Security Grantor has the meaning given to this term in Clause 6.2. | |||
New Security Grantors Accession Agreement has the meaning given to this term in Clause 6.2. | |||
Note means any promissory note evidencing loans in accordance with the terms of the Credit Agreement, that may be amended, modified, supplemented, extended, renewed or replaced from time to time. | |||
Obligor means a Borrower and/or a Guarantor. | |||
Original Domestic Guarantors means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Guarantors. |
Original Foreign Borrower means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Borrowers. | |||
Original Foreign Guarantor means each of the Subsidiaries of the Company listed in Schedule 2 under the section Original Foreign Guarantors. | |||
Original Issuing Lender means JPMorgan Chase Bank, N.A. | |||
Original Lender means each of the financial institutions set out in Schedule 1 hereto in its capacity as original lender to the Company and the Original Foreign Borrowers. | |||
Parties means the Security Grantors, the Administrative Agent and the other Secured Parties. | |||
Person means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, any governmental authority or other entity of whatever nature. | |||
Secured Claims has the meaning given to that term in the respective German Security Document. | |||
Secured Party means an Agent, the Lenders and any affiliate of any Lender to which any obligations under any Loan Document or under any Specified Swap Agreements are owed by any member of the Group, any Issuing Lender and any Swap Counterparty. | |||
Security means any and all collateral granted with a view to securing the Secured Claims. | |||
Security Grantors means the Original Security Grantors and any company or person which accedes to this Agreement as a New Security Grantor. | |||
Security Grantors Agent means Original Security Grantor 3. | |||
Security Document means |
(a) | the Guarantee and Collateral Agreement; and | ||
(b) | any other document evidencing or creating collateral over any asset of an Obligor to secure any obligation of an Obligor to a Secured Party under or in connection with, inter alia , the Credit Agreement. |
Specified Swap Agreement means any Swap Agreement entered into by the Company or any Guarantor and any lender or any affiliate of a lender in connection with any Loan Document. | |||
Subsidiary means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. And unless otherwise qualified, all references to a Subsidiary or to Subsidiaries in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company. | |||
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any |
combination of these transactions; except for any phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any of its Subsidiaries. | |||
Swap Counterparty means any person or entity providing a Specified Swap Agreement. | |||
Syndication Agent means Credit Suisse, Cayman Islands Branch. |
1.2 | Where the context so admits, the singular includes the plural and vice versa. | |
1.3 | The headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. | |
1.4 | Any reference in this Agreement to a defined document is a reference to that defined document as amended, varied, supplemented or novated from time to time. | |
1.5 | Any reference to a Party or other person (including any Obligor and any Secured Party) includes its respective successor(s) in law (including any universal successor ( Gesamtrechtsnachfolger ) of that person by way of merger ( Verschmelzung ), any other reorganisation contemplated in the German Transformation Act ( Umwandlungsgesetz ) or otherwise) and any assign(s) and transferee(s) of that person and, to the extent legally possible, any legal provision to the contrary is waived. | |
1.6 | Unless otherwise defined herein or unless the context otherwise requires, terms defined or referred to in the Credit Agreement or a German Security Document shall have the same meaning when used herein. | |
1.7 | In case of a conflict between a German Security Document and this Agreement, the German Security Document shall prevail. | |
2. | DECLARATION OF TRUST AND APPOINTMENT AS ADMINISTRATOR | |
2.1 | The Administrative Agent shall: |
(a) | hold and administer such German Security which is transferred or assigned by way of security ( Sicherungseigentum/Sicherungsabtretung ) or otherwise granted under a non-accessory security right ( nicht akzessorische Sicherheit ) as trustee ( Treuhänder ) for the benefit of the Beneficiaries; | ||
(b) | administer such German Security which is pledged ( Verpfändung ) or otherwise granted under an accessory security right ( akzessorische Sicherheit ) to the Administrative Agent; and | ||
(c) | shall act in relation to the German Security in accordance with the terms and subject to the conditions of this Agreement and the German Security Documents, as the case may be. |
2.2 | Each Beneficiary hereby ratifies and approves all acts done by the Administrative Agent on such Beneficiarys behalf before execution hereof (or the relevant Beneficiarys accession to this Agreement, as the case may be). | |
2.3 | It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trust expressed to be created by this Agreement, the relationship of the Beneficiaries to the Administrative Agent shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Agreement shall have full force and effect between the parties hereto. |
3. | PURPOSE OF THE GERMAN SECURITY | |
The German Security has been granted with a view to providing collateral in order to secure the full and irrevocable satisfaction and discharge of any and all Secured Claims. | ||
4. | POWER OF ATTORNEY | |
4.1 | Each of the Beneficiaries herewith irrevocably authorises and grants power of attorney to the Administrative Agent to: |
(a) | execute for and on its behalf any and all German Security Documents and any other agreements related to the German Security, including but not limited to any New Secured Partys Accession Agreement and any New Security Grantors Accession Agreement, any amendment agreement to this Agreement and any German Security Document and any substitute agreement to this Agreement; | ||
(b) | to execute for and on its behalf any German Security Document and to make and receive all declarations and statements which are necessary or desirable in connection therewith; |
(c) | (i) | execute for and on its behalf any release agreement in respect of the German Security Documents (or any of them) in connection with an envisaged or effected full and irrevocable satisfaction and discharge of the Secured Claims. If, however, a particular German Security Document imposes an obligation to release part or all of the German Security, the Administrative Agent may determine which part of the German Security is to be released and shall be entitled to release that part of the German Security; and |
(ii) | to make and receive all declarations and statements which are necessary or desirable in connection with any of such release agreements; |
(d) | realise such German Security which is granted under the German Security Documents in accordance with the provisions of the respective German Security Document; | ||
(e) | make and receive all declarations and statements which are necessary or desirable in connection with the German Security or any of the German Security Documents or any of the agreements and documents relating thereto; and | ||
(f) | take all other actions and measures which the Administrative Agent deems necessary or desirable in connection with this Agreement, the German Security or any of the German Security Documents. |
4.2 | The Administrative Agent is exempt from the restrictions of section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ) as well as any similar restrictions under any applicable law. | |
4.3 | The Administrative Agent has the power to grant sub-power of attorney including the release from the restrictions of section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ) and/or any similar restrictions under any applicable law. | |
5. | JOINT CREDITOR; PARALLEL DEBT | |
5.1 | Administrative Agent as Joint Creditor | |
Each of the Secured Parties and each of the Security Grantors agrees that the Administrative Agent shall be the joint creditor (together with the relevant Secured Party) of each and every payment |
obligation of any Security Grantor towards each and any Secured Party under any Loan Document and that, accordingly, the Administrative Agent shall have and will have its own and independent right to demand performance of said obligations from such Security Grantor. The discharge of any such obligation to either the Administrative Agent or the relevant Secured Party shall, to the same extent, discharge the corresponding obligation owing to the other party. |
5.2 | Abstract Debt Acknowledgement | |
Each Secured Party hereby irrevocably and unconditionally agrees, and each Security Grantor hereby irrevocably and unconditionally acknowledges by way of an abstract acknowledgement of debt ( abstraktes Schuldanerkenntnis ) within the meaning of §§ 780, 781 German Civil Code ( Bürgerliches Gesetzbuch ), that each Security Grantor shall be obliged on a several basis to pay an amount to the Administrative Agent (or its respective successors in that capacity) that corresponds to the total of all obligations of such relevant Security Grantor towards the Secured Parties (or any of them) under the Loan Documents (other than under German law governed share pledge agreements or land charges, if any) as and when the same fall due, and that, accordingly, the Administrative Agent shall have an independent right to request the fulfilment of said obligation from such Security Grantor in accordance with the terms of the Loan Documents. The discharge of any such obligation to either the Administrative Agent or the relevant Secured Party shall, to the same extent, discharge the corresponding obligation owing to the other party. | ||
5.3 | Preservation of Rights | |
Without limiting or affecting the Administrative Agents rights against any Security Grantor (under the preceding Clauses 5.2 and/or 5.3 or any other provision of any Loan Document), the Administrative Agent agrees with each of the Secured Parties (on an individual and divided basis) that it shall not exercise its rights as joint creditor of a Secured Party and/or under the abstract acknowledgment of debt without the consent of the relevant Secured Party. However, nothing in the previous sentence shall limit to any extent the Administrative Agents right in whatever capacity to take any action to protect or preserve any rights under any Loan Document or to enforce any security interest created thereby, as stipulated in any Loan Document (or to perform any other act in that context). | ||
6. | NEW PARTIES | |
6.1 | New Secured Parties | |
If any bank, trust or financial institution or any other person becomes party to the Credit Agreement as a Secured Party (any such bank, trust or financial institution or other person being a New Secured Party ), then the New Secured Party shall execute and deliver an accession agreement substantially in the form of Schedule 3 (the New Secured Partys Accession Agreement ) hereto. The Administrative Agent shall execute the New Secured Partys Accession Agreement for itself and on behalf of the other Secured Parties. Each of the Security Grantors herewith irrevocably consents to any New Secured Partys Accession Agreement entered into in accordance with this Agreement. | ||
6.2 | New Security Grantors | |
If, by legal succession, by amendment of the Credit Agreement or otherwise, any company or person becomes (i) an Additional Domestic Borrower and/or Additional Domestic Guarantor in either case becoming a provider of German Security, and/or (ii) a new or additional German Borrower and/or German Guarantor in respect of the Secured Claims and/or becomes a provider of German Security (a New Security Grantor ), then such New Security Grantor shall execute and deliver an accession agreement substantially in the form of Schedule 4 (the New Security Grantors Accession |
Agreement ) hereto. The Administrative Agent shall execute the New Security Grantors Accession Agreement for itself and on behalf of the other Secured Parties. Each of the Security Grantors herewith irrevocably consents to any New Security Grantors Accession Agreement entered into in accordance with this Agreement. |
7. | APPOINTMENT OF A SECURITY GRANTORS AGENT | |
7.1 | The Security Grantors hereby appoint and authorise the Security Grantors Agent: |
(a) | to designate a document as German Security Document; and | ||
(b) | to sign any New Security Grantors Accession Agreement on their behalf. |
administration of this Agreement, which may be incurred by or made against the Administrative Agent and/or any of the other Secured Parties for anything done or omitted in the exercise or purported exercise of the powers contained herein, provided , that the Security Grantors shall have no obligation hereunder to the extent that liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of the execution, delivery, enforcement, performance and administration of this Agreement are incurred by or made against the Administrative Agent or any of the other Secured Parties as a result of the gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Administrative Agent or any of the other Secured Parties. |
16. | SUCCESSORS | |
This Agreement shall be binding upon the Parties hereto and their respective successor(s) in law. The Administrative Agent or any other Secured Party shall be entitled to assign or otherwise transfer (i) any and all of its rights and (ii) only with regard to any person which becomes a lender or an administrative agent under the Credit Agreement after the date of this Agreement) any and all of its duties pursuant to this Agreement to third parties. A Security Grantor is entitled to any such transfer with the prior written consent of the Administrative Agent only. |
17. | NOTICES AND THEIR LANGUAGES | |
17.1 | Notices | |
Any notice or other communication under or in connection with this Agreement to the Administrative Agent or the other Secured Parties shall be in writing and shall be delivered personally, by post or facsimile and shall be sent to the address or fax number of the party, and for the attention of the individual, set forth in Schedule 6 hereto or such other address or facsimile number as is notified by that Party for this purpose to the Facility Agent or the Administrative Agent from time to time. | ||
17.2 | Language | |
Unless otherwise required by statutory German law or unless otherwise agreed in writing from time to time, any notice or other communication under or in connection with this Agreement shall be in the English language or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail (unless the document is a statutory or other official document), except that where a German translation of a legal term appears in such text, the German translation shall prevail. | ||
18. | APPLICABLE LAW; JURISDICTION | |
18.1 | Governing Law | |
This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. | ||
18.2 | Jurisdiction | |
The place of jurisdiction for all Parties shall be Frankfurt am Main, Federal Republic of Germany. The Administrative Agent and the Beneficiaries, however, shall also be entitled to take legal action against any of the Security Grantors before any other competent court of law having jurisdiction over such Security Grantor or any of its assets. | ||
Each Security Grantor that is not resident in Germany appoints and authorises First Solar GmbH (address: Marie-Curie-Str. 3, 15236 Frankfurt (Oder), Germany, Germany, fax: +49(0)6131-1443-500, att.: Anja Lange (the Process Agent ) as its agent for service of process with respect to any legal proceedings brought before any German court ( Zustellungsbevollmächtigter ) in connection with this Agreement or any other Loan Document (including any German Security Document) and releases First Solar GmbH from the restrictions set forth in section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ). Each Security Grantor hereby undertakes to deliver to the Process Agent, with a copy to the Administrative Agent, a duly executed appointment letter in the form of Schedule 7 (Process Agent Appointment Letter) to this Agreement: |
(a) | in the case of an Original Security Grantor, promptly ( unverzüglich ) upon the execution of this Agreement; or | ||
(b) | in the case of a Security Grantor acceding to this Agreement in accordance with Clause 5.2 (New Security Grantors) of this Agreement, promptly upon the execution of the relevant New Security Grantors Accession Agreement. |
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[acceding party]
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the Administrative Agent for itself and for and on behalf of the Beneficiaries |
* | Option applicable only for a Secured Party which (A) is neither tax resident in Germany, nor (B) is considered to be lending from Germany nor (C) is resident in a country with which Germany has entered into a double taxation treaty pursuant to which Germany has waived completely the right to tax interest earned on a loan secured by German real estate . |
| [ l ]; | |
| [ l ]; and | |
| [ l ]. |
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[acceding party]
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the Administrative Agent for itself and for and on behalf of the Beneficiaries |
Security Grantors Agent for itself | ||||
and for and on behalf of the Security Grantors |
1. | This Agreement; | |
2. | a share pledge agreement dated on or about the date of this Agreement between First Solar, Inc. as pledgor and the Administrative Agent and the other Secured Parties as pledgees relating to 66% of First Solar, Inc.s shares in First Solar Holdings GmbH; | |
3. | a share pledge agreement dated on or about the date of this Agreement between First Solar, Inc. as pledgor and the Administrative Agent and the other Secured Parties as pledgees relating to 34% of First Solar, Inc.s shares in First Solar Holdings GmbH; | |
4. | a share pledge agreement dated on or about the date of this Agreement between First Solar Holdings GmbH as pledgor and the Administrative Agent and the other Secured Parties as pledgees relating to First Solar Holdings GmbHs shares in First Solar GmbH; | |
5. | a share pledge agreement dated on or about the date of this agreement between First Solar Holdings GmbH as pledgor and the Administrative Agent and the other Secured Parties as pledgees relating to First Solar Holdings GmbHs shares in First Solar Manufacturing GmbH; | |
6. | an assignment agreement dated on or about the date of this Agreement between First Solar Holdings GmbH as assignor and the Administrative Agent as assignee relating to intercompany receivables and other intercompany monetary claims; | |
7. | an assignment agreement dated on or about the date of this Agreement between First Solar GmbH as assignor and the Administrative Agent as assignee relating to intercompany receivables and other intercompany monetary claims; and | |
8. | an assignment agreement dated on or about the date of this Agreement between First Solar Manufacturing GmbH as assignor and the Administrative Agent as assignee relating to intercompany receivables and other intercompany monetary claims. |
First Solar, Inc.
350 West Washington Street, Suite 600
Tempe, Arizona 85281
Attn.: Anja Lange
Fax: +49(0)6131-1443-500
Email: alange@firstsolar.com
First Solar Holdings GmbH
Rheinstr. 4B
55116 Mainz
Germany
Attn.: Anja Lange
Fax: +49(0)6131-1443-500
Email: alange@firstsolar.com
First Solar GmbH
Rheinstr. 4B
55116 Mainz
Germany
Attn.: Anja Lange
Fax: +49(0)6131-1443-500
Email: alange@firstsolar.com
First Solar Manufacturing GmbH
Marie-Curie-Str. 3
15236 Frankfurt (Oder)
Germany
Attn.: Anja Lange
Fax: +49(0)6131-1443-500
Email: alange@firstsolar.com
JPMorgan Chase Bank, N.A.
10 South Dearborn, 7
th
Floor
Chicago, IL 60603
Attention: Creston Wren
Telecopy: 001 (312) 385-7097
Telephone: 001 (312) 385-7016
JPMorgan Chase Bank, N.A.
125 London Wall
London
EC2Y 5AJ
Attention: Lucy Chick
Telecopy: +44(0)20 7325 6835
Telephone: +44(0)20 7325 6926
JPMorgan Chase Bank, N.A.
201 North Central Avenue, Floor
21Phoenix, AZ 85004
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Attention: Mark Chambers | |
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Telecopy: 001 (602) 221-1502 | |
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Telephone: 001 (602) 221-2290 |
| Security Trust Agreement (the Security Trust Agreement) dated [ ] between [ l ] as Administrative Agent (the Administrative Agent), [ l ], [ l ] and other secured parties as beneficiaries of security and [ l ], [ l ] and [ l ] as security grantors | ||
| The other Loan Documents as defined and referred to in the Security Trust Agreement (the Loan Documents) |
| Sicherheitentreuhandvertrag (der Sicherheitentreuhandvertrag) vom [ ] zwischen [ l ] als Sicherheitenagent (der Administrative Agent), [ l ], [ l ] und anderen Finanzierungsparteien als Begünstigte von der Gewährung von Sicherungsrechten und [ l ], [ l ] und [ l ] als Sicherungsgeber | ||
| Die weiteren im Sicherheitentreuhandvertrag in Bezug genommenen Finanzierungsdokumente (die Loan Documents) |
Yours sincerely
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Mit freundlichen Grüßen | |||||
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Place, date
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The Original Security Grantors
FIRST SOLAR, INC. |
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By: | ||||
/s/ David Brady | ||||
David Brady | ||||
Corporate Treasurer | ||||
FIRST SOLAR HOLDINGS GMBH
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By: | ||||
/s/ David Brady | ||||
David Brady | ||||
Authorized Officer (Prokurist) | ||||
FIRST SOLAR GMBH
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By: | ||||
/s/ David Brady | ||||
David Brady | ||||
Authorized Officer (Prokurist) | ||||
FIRST SOLAR MANUFACTURING GMBH
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By: | ||||
/s/ David Brady | ||||
David Brady | ||||
Authorized Officer (Prokurist) |
The Administrative Agent
JPMORGAN CHASE BANK, N.A. |
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By: | ||||
/s/ Stefan Kuhm | ||||
Stefan Kuhm | ||||
Attorney-In-Fact | ||||
The other Secured Parties and Beneficiaries
JPMORGAN CHASE BANK, N.A. |
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By: | ||||
/s/ Stefan Kuhm | ||||
Stefan Kuhm | ||||
Attorney-In-Fact |
BANK OF AMERICA, N.A.
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By: | ||||
/s/ David R. Barney | ||||
David R. Barney, Senior Vice President | ||||
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
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By: | ||||
/s/ Bill ODaly | ||||
Bill ODaly | ||||
Director | ||||
By: | ||||
/s/ Ilya Ivashkov | ||||
Ilya Ivashkov | ||||
Associate |
THE ROYAL BANK OF SCOTLAND PLC
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By: | Belinda Tucker | |||
Senior Vice President
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/s/ Belinda Tucker | ||||
GOLDMAN SACHS BANK (EUROPE) PLC
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By: | ||||
/s/ David Buckley | ||||
David Buckley | ||||
Director |
WELLS FARGO BANK, N.A.
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By: | ||||
/s/ Ken Edens | ||||
Ken Edens | ||||
Vice President |
HSBC BANK USA, NATIONAL ASSOCIATION
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By: | ||||
/s/ Steven F. Larsen | ||||
Steven F. Larsen | ||||
First Vice President |
ROYAL BANK OF CANADA
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By: | ||||
/s/ Jay T. Sartain | ||||
Jay T. Sartain | ||||
Authorized Signatory |
MORGAN STANLEY BANK, N.A.
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By: | ||||
/s/ William Graham | ||||
William Graham | ||||
Authorized Signatory | ||||