UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 6, 2017 (August 30, 2017)
Blue Sphere Corporation
(Exact name of registrant as specified in its charter)
| Nevada | 000-55127 | 98-0550257 | ||
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
301 McCullough Drive, 4th Floor, Charlotte, North Carolina 28262
(Address of principal executive offices) (Zip Code)
704-909-2806
(Registrant’s telephone number, including area code)
(Former Name or Former Address, if Changed since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
☒ Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
As used in this Current Report, all references to the terms “we”, “us”, “our”, “Blue Sphere” or the “Company” refer to Blue Sphere Corporation and its direct and indirect wholly-owned subsidiaries, unless the context clearly requires otherwise.
Item 1.01
Entry Into a Material Definitive Agreement
On August 30, 2017, Blue Sphere Corporation, along with its wholly-owned subsidiary, BlueSphere Italy, S.r.l (“BlueSphere Italy”), entered into a Long Term Mezzanine Loan Agreement (the “Loan Agreement”) with Helios 3 Italy Bio-Gas 2 L.P. (the “Lender”). Pursuant to the Loan Agreement, the Lender agreed to make available to BlueSphere Italy a mezzanine loan facility to facilitate the purchase of the Udine SPV (as defined below).
Under the Loan Agreement, the Lender agreed to make up to one million six hundred thousand euros (€1,600,000, or approximately USD $1,912,166) available to BlueSphere Italy (the “Loan”) to finance (a) a portion of the total purchase price of the Udine SPV, (b) certain broker fees incurred in connection with the acquisition of the Udine SPV, and (c) taxes associated with registration of the Pledge Agreement (as described below). For the purposes of the Loan Agreement, the financing of the total required investment for the Udine SPV was subject to specified conditions precedent.
Subject to specified terms, representations and warranties, the Loan Agreement provides that the Loan will accrue interest at a rate of fourteen and one-half percent (14.5%) per annum, paid quarterly, beginning six (6) months following the closing of the Loan. The Lender will also be entitled to an annual operation fee, paid quarterly. The final payment under the Loan Agreement for the Loan will become due no later than the earlier of (a) seven (7) years from the date the Loan funds were made available to BlueSphere Italy pursuant to a closing of the Loan, or (b) the date of expiration of certain licenses granted to the Udine SPV.
The Loan may not be prepaid by the Company. However, after payment by the Company of eight (8) quarterly payments, the Lender is entitled to demand repayment of the amount outstanding under the Loan Agreement, provided that the amount shall not exceed the maximum distributable proceeds of the Udine SPV, by providing notice at least twenty-one (21) days prior to such demand. At such time the Company shall be entitled to refinance and prepay the entire amount outstanding under the Loan, including the expected interest and operation fee due for the remaining period of the Loan, less fifteen percent (15%) of the aggregate sum of such amounts, If the Company intends to refinance the Loan, the Lender shall have a right of first refusal to make the Loan on the same terms.
Pursuant to an Equity Pledge Agreement, dated August 30, 2017, between the Company and the Lender (the “Pledge Agreement”) entered into in connection with the Loan Agreement, all shares of BlueSphere Italy have been pledged as collateral for all liabilities and obligations of the Company under the Loan. In addition, pursuant to a Subordination Agreement, dated August 30, 2017, between the Company, BlueSphere Italy and the Lender (the “Subordination Agreement”) entered into in connection with the Loan Agreement, any loan granted to BlueSphere Italy by the Company shall rank subordinate to the Loan. The Pledge Agreement and Subordination Agreement shall terminate once all amounts due under such agreements have been paid in full.
Upon specified Events of Default (as defined in the Loan Agreement), BlueSphere Italy shall have seven (7) days to either cure the default, or make payment of a “prepayment fee.” In the event of an uncured Event of Default, the Lender shall be entitled to take all steps required to enforce any of the voting rights in BlueSphere Italy, including convening a shareholder meeting for the purpose of revoking/appointing the Board of Directors of BlueSphere Italy, pursuant to the Equity Pledge Agreement.
The foregoing descriptions of the Loan Agreement, the Pledge Agreement and the Subordination Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Loan Agreement, the Pledge Agreement and the Subordination Agreement filed hereto as Exhibits 10.1, 10.2 and 10.3, respectively, and incorporated herein by reference.
Item 2.01
Completion of Acquisition or Disposition of Assets.
On September 4, 2017, pursuant to a previously reported Share Purchase Agreement, dated June 29, 2017, as amended on July 12, 2017 and July 31, 2017 (collectively, the “Share Purchase Agreement”), by and among the Company’s wholly-owned subsidiary, Bluesphere Italy, and Pronto Verde A.G. (the “Seller”), BlueSphere Italy completed the acquisition of one hundred percent (100%) of the share capital of Futuris Papi S.p.A., a joint stock company organized under the laws of Italy (the “Udine SPV”), which owns and operates a 0.995 Kw plant for the production of electricity from vegetal oil located in Udine, Italy. In connection with the closing, the party to the Share Purchase Agreement, Futuris Papi S.r.l., a limited liability company organized under the laws of Italy, was converted into Futuris Papi S.p.A.
Pursuant to the Share Purchase Agreement, the Company paid an aggregate purchase price of two million four hundred and eight thousand euros (€2,408,000, or approximately USD $2,864,051), subject to certain post-closing adjustments, to acquire the share capital of the Udine SPV. On August 1, 2017, the Company made an initial advance payment pursuant to the Second Amendment to the Share Purchase Agreement, dated July 31, 2017, of one million two hundred thousand euros (€1,200,000, or approximately USD $1,427,268). The remaining portion of the aggregate purchase price, one million two hundred thousand and eight euros (€1,208,000, or approximately USD $1,436,783), was financed by the Loan and paid by the Company at closing.
In accordance with a Guarantee Plant Operation Management Agreement, dated September 4, 2017 (the “GPOMA”), between the Seller and the Udine SPV, the Seller satisfied its guarantee to procure the services of CCEngineering S.r.l., a limited liability company duly incorporated and existing under the laws of Italy, to perform “all-inclusive” services for the operation and maintenance of the facilities, and ISG Sviluppo SA, a company duly incorporated and existing under the laws of Switzerland, to supply to the vegetal oil necessary for the regular functioning of the Udine SPV.
The foregoing descriptions of the Share Purchase Agreement, Amendment Agreement to the Share Purchase Agreement and the Second Amendment Agreement to the Share Purchase Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements filed, respectively, as Exhibit 10.1 to the Current Report on Form 8-K filed by the Company on July 5, 2017, Exhibit 10.01 to the Current Report on Form 8-K filed by the Company on July 14, 2017, and Exhibit 10.1 to the Current Report on Form 8-K/A filed by the Company on August 4, 2017, and incorporated herein by reference. The foregoing description of the GPOMA does not purport to be complete and is qualified in its entirety by reference to the full text of the GPOMA filed hereto as Exhibit 10.4, and incorporated herein by reference.
Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
Reference is made to the disclosure set forth under Item 1.01 above regarding the Loan Agreement, the Pledge Agreement and the Subordination Agreement, which disclosure is incorporated herein by reference.
On September 4, 2017, in connection with the closing of the acquisition of the Udine SPV, one million two hundred and eight thousand euros (€1,208,000, or approximately USD $1,436,783), was funded under the Loan Agreement. Pursuant to the Loan Agreement, the Lender will fund the balance of three hundred ninety-two thousand euros (€392,000, or approximately USD $475, 383) within thirty (30) days, of which two hundred thousand euros (€200,000, or approximately USD $242,542) are fees payable to the Lender and one hundred ninety-two thousand euros (€192,000, or approximately USD $232,841) are fees payable to the Company.
Item 9.01
Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired.
The financial statements required by this Item 9.01(a) will be filed by amendment no later than 71 days after the date on which this Current Report on Form 8-K is required to be filed.
The following exhibits are furnished as part of this Current Report on Form 8-K.
(d) Exhibits.
10.1
10.2
10.3
10.4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Blue Sphere Corporation | ||
| Dated: September 6, 2017 | By: | /s/ Shlomi Palas |
| Shlomi Palas | ||
| President and Chief Executive Officer |
Exhibit 10.1
Execution Copy
LONG TERM MEZZANINE LOAN AGREEMENT
This Long Term Mezzanine Loan Agreement (“ Agreement ”) is entered into on this 30 th day of August 2017 by and between:
| 1. | Bluesphere Italy S.R.L , a private limited liability company organized and existing under the laws of Italy under registration no. MI-2124774, having its registered office at Milan, Corso G. Matteotti 1, 20121 (MI) and established and owned by BSC (“ Borrower ”); |
| 2. | Blue Sphere Corporation, a publicly traded company incorporated under the laws of Nevada, USA (“ BSC ”); |
| 3. | Helios 3 Italy Bio-Gas 2 L.P, a limited partnership under formation to be organized under the laws of the State of Israel partnership number [●] of Hakfar Hayarok Street, Ramat Hasharon, Israel (“ Lender ”) by its General Partner , Helios General 3, LTD (515257749). |
The Borrower and the Lender may be referred to as a “ Party ” separately and the “ Parties ” jointly.
| WHEREAS | The Borrower is a special purpose company fully owned (100%) by BSC; and |
| WHEREAS | The Borrower entered into a share purchase agreement with the Seller (as hereinafter defined) dated June 29, 2017, as subsequently amended (the “ SPA ”) for the purchase of 100% of the issued and outstanding share capital (on a fully diluted basis) of the SPV (as hereinafter defined), which owns and operates the Plant (as hereinafter defined); and |
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WHEREAS
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The Lender is limited partnership whose initial Limited Partner is Helios Energy Investments 3 LP (550262539) (“ Helios ”) and both the Lender’s and Helios’ General Partner is Helios General 3, LTD (Israeli corporation number 515257749); and |
| WHEREAS | As of the date hereof, and pursuant to the SPA, the Borrower has paid the Seller an amount of 1,200,000 Euro as first instalment of the purchase price (“ Partial Consideration Amount ”); and |
| WHEREAS | In order to finance the remaining portion of the consideration amount for the transaction contemplated by the SPA, Lender will make available the Loan to the Borrower, all in accordance with the terms of this Agreement. |
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NOW THEREFORE , the Parties agree as follows:
| 1. | DEFINITIONS |
| 1.1. | Capitalised terms shall have the meanings ascribed to such terms throughout this Agreement and in addition, the following terms shall have the following meanings: |
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Affiliate
|
(a) In respect of a natural person, the immediate family of such person; and (b) in respect to a legal person other than a natural person, an entity with Control, under the Control of by or under common Control with such person. | |
| Applicable Law | Any law, treaty, statute, regulation, ordinance, rule, judgement, decision, official order, judicial order, court decision, writ, decree, approval, binding directive, requirement or other governmental restriction whether in effect as of the date hereof or thereafter and in each case as amended, re-enacted or replaced. | |
| Arbitrator | Adam Eitan or as otherwise agreed between the Parties. | |
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Bank Account
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The Borrower’s bank account with Bank Crédit Agricole Cariparma S.p.A. at Milan, account no. [ ]. | |
| Bank Account Pledge | A first-degree fixed pledge over the Bank Account and over the SPV’s Bank Accounts in the standard form provided by the Bank. | |
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Business Day
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Any day other than: (a) Friday; (b) Saturday; (c) Sunday; (d) a day on which banking institutions licensed in the State of Israel or in the State of Italy are required or authorised to be closed, nor any day which is recognised by the Bank of Israel as not being a business day. |
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| Business Plan |
means:
(a) on or before the effective date of this Agreement, the Financial Model; and
(b) at any time thereafter, the Financial Model as updated, revised, amended or replaced from time to time, and as approved by the Lender in writing, all as further detailed under Section 10.14 below.
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| Budget Versus Actual Report | A report in a form as shall be agreed mutually upon between the Parties within 90 days of the Loan Closing, for the 12 months period until the date of issuance of the Budget Versus Actual Report setting forth all actual revenues, expenses and cash flow of the SPV and the Borrower versus the budget for the respective period. | |
| BSC’s Transaction Fee | A fee payable to BSC in accordance with the provisions of Section 2.6 herein. | |
| CANTU Transaction | Acquisition of the holdings of Eneryeco S.r.l. (“ Cantu SPV ”) which owns and operates a vegetable oil, 990 KWe plant located in Cantù, Lombardia region, Italy of which Borrower has already paid as of the date hereof a sum of 150,000 Euro as a deposit to secure the transaction (“ Cantu Deposit ”). | |
| Control | The power, direct or indirect, to direct or cause the direction of the management and policies of an entity whether by voting power, contract or otherwise. |
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| First Repayment Date | As defined in Section 4.1 below. | |
| Government Authority | Any government and/or governmental department, ministry, cabinet, commission, board, bureau, agency, court, tribunal, regulatory authority, instrumentality, judicial, legislative or administrative body or entity, domestic or foreign, federal, national, state, regional, provincial or local, having or exercising jurisdiction over the matter or matters in question. | |
| Guaranteed Plant Operation Management Agreement | An operation and management agreement duly signed and shall be executed by and between the SPV and the Seller at the SPA Closing, pursuant to which Seller shall grant the SPV operation and management services in connection with the Plant, and guarantee the Plant EBITDA. | |
| Financial Model | The Financial Model in relation to the Borrower and including the business plan of the Borrower as of the date of the Loan Closing as shall be approved by the Lender. | |
| SPA Consideration | The consideration to be paid by the Borrower to the Seller pursuant to the SPA upon SPA Closing date in the amount of 2,408,000 Euro (of which Borrower has already paid as of the date hereof a sum of 1,200,000 Euro). | |
| Interest Rate | As defined in Section 6.1 | |
| Interest Period | As defined in Section 6.5.1. |
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(d) any agreement or instrument entered into or executed pursuant to and as expressly contemplated by any of the above agreements; and
(e) any other document designated as such by the written agreement of the Lender and the Borrower.
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| Loan Securities |
Each of:
(a) the Bank Account Pledge;
(b) the Equity Pledge;
(c) the irrevocable notice regarding Distributions;
(d) appointment of the Participator (pursuant to Section 3.2.3 below);
(e) The nomination of the authorized signatories in the Bank Account and the SPV’s Bank Accounts pursuant to Section 3.2.2 below.
(f) Any other document designated as such by the written agreement of the Lender and the Borrower.
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| Operation Fee | As defined in Section 6.2. | ||
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Organisational Documents
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Organisational documents including without limitation, the memorandum of association, articles of association and shareholders’ agreement, joint venture agreement, partnership agreement and general partner governing documents, of such entity, as applicable, attached hereto as Schedule C . | ||
| Mandate to Sell | Mandate to Sell Agreement attached hereto as Schedule D. | ||
| Plant | A 0.995 Kw plant for the production of electricity from vegetal oil located in Italy, Pavia di Udine (UD), Via Crimea no. 57. | ||
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| Prepayment Fee | As such terms is defined in section 5.4.3. | |
| Project Authorisations | Any authorisations, permits, licences, consents or approvals required to be held in connection with the ownership, operation and maintenance of the Plants. | |
| Related Party | With respect to any entity, its shareholders, partners, or other owners and any Affiliates thereof; | |
| Repayment Date | Each quarterly date for the payment of outstanding principal amounts hereunder (together with accrued interest thereon) as set out in Section 4.1 below. | |
| Repayment Instalments | As defined in Section 4.1 below. | |
| Repayment Schedule | As defined in Section 4.1 below. | |
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Security Interests
|
Any interest or equity of any person (including any right to acquire, option, or right of pre-emption) or any mortgage, charge, pledge, lien, attachment, assignment or any other encumbrance, security interest, arrangement or similar third party right of any nature over or in the property to which such interest relates. | |
| Seller | Pronto Verde A.G, a company organized under the laws of Switzerland, company identification no. CHE-101.957.390. | |
| SPV | Futuris Papia S.p.A, a joint stock company organized under the laws of Italy, Tax No. 02593530302. | |
| SPV Distributions |
Any payment by the SPV to any shareholder of the SPV, or any Related Party thereof and including, without limitation:
(a) any dividend or other distribution (in cash or in kind) on or in respect of any of the shares held by the Borrower in the SPV;
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(b) any payment or repayment in connection with any loans provided to the Borrower by the SPV or redemption of any capital notes issued by the a SPV;
(c) any other payment of monies or in respect of any liability under any agreement with the SPV, for the avoidance of doubt, any sums owing to a shareholder of the SPV or any Related Party thereof in its capacity as the provider of general and administrative management services.
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| Suggested Business Plan | As defined in Section 10.14 below. | |
| Tax | Any present and future income, value added and other taxes, levies, imposts, deductions, charges and withholdings in the nature of taxes whatsoever (including, without limitation, taxes concerning income, capital gains, sales, value added, franchise, withholding, payroll, employment, national insurance and health, social security, severance, stamp or property tax) together with linkage differentials, interest thereon and penalties with respect thereto, if any, and any payments made on or in respect thereof. | |
| Tax Deduction | A deduction or withholding for or on account of Tax from a payment hereunder. | |
| Transaction Fee | A fee payable to the Lender in accordance with the provisions of Section 2.5 herein. | |
| Transfer | Any transfer, assignment, sale, creation of a Security Interest or other disposition of similar nature. |
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| Trustee | Fischer Behar Chen Trustees Ltd. |
| 1.2. | Words and defined terms denoting the singular number include the plural and vice versa and the use of any gender shall be applicable to all genders. | |
| 1.3. | The paragraph headings are for the sake of convenience only and shall not affect the interpretation of this Agreement. |
| 1.4. | The recitals and Schedules hereto form an integral part of this Agreement. The following table sets forth the Schedules to this Agreement: |
| Schedule A | Equity Pledge | |
| Schedule B | Form of Subordination Agreement | |
| Schedule C | Organizational Documents of SPV | |
| Schedule D | Mandate to Sell | |
| Schedule E | Form of Borrower’s Officer’s Certificate | |
| Schedule F | Irrevocable Instructions Regarding SPV’s Distributions | |
| Schedule G | Financial Model | |
| Schedule H | Signatories | |
| Schedule I | Loan and Operation Fee Repayment Schedule |
| 2. | LONG TERM MEZZANINE LOAN |
| 2.1. | Subject to the terms of this Agreement, the Lender, by itself or through entities managed by Helios General 3, ltd, its general partner, shall make available to the Borrower the Loan in accordance with the terms of this Agreement, and subject to the satisfaction, or waiver by Lender, of the conditions precedent set out in Section 3.1 below. |
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| 2.2. | Lender shall remit the Loan, after withholding the Transaction Fee and the BCS’s Transaction Fee (as defined below), to the Borrower by wire transfer to the Bank Account not later than the 1 st of September. The Transaction Fee shall be remitted to the Borrower within 30 days following the closing and the BSC’s Transaction Fee shall be remitted to the Borrower on 31 st December 2017. |
| 2.3. | The Borrower shall use the Loan solely to finance the remaining portion of the SPA Consideration payable by Borrower to the Seller pursuant to the SPA and for paying the Transaction Fee to Lender and the BSC’s Transaction Fee to BSC. |
| 2.4. | Any additional payments due to the Seller pursuant to the SPA and any other additional cash investments in the SPV or in the Borrower shall be provided solely by the Borrower and/or BSC and/or by a third party financing entity and in accordance with the terms of this Agreement and the Lender shall have no responsibility and/or liability in connection therewith. The Borrower and BSC hereby undertake and warrant to make all such additional payments and investment required consummating the transaction with the Seller. |
| 2.5. | Out of the Loan, the Lender shall be entitled to a Transaction Fee in the amount of 200,000 Euro, which shall be payable (or deductible by the Lender) to the Lender in accordance with clause 2.2 above; the payment of the Transaction Fee shall be invoiced in several amounts and by several entities in accordance with Lender’s instructions. |
| 2.6. | Out of the Mezzanine Loan, 192,000 Euro shall be payable to BSC (“ BSC’s Transaction Fee ”), following the elapse of 6 months from the Loan Closing Date, subject to the fulfilment of the following conditions: (i) the SPV’s semi-annual EBITDA is at least 95% of 542,000 Euro (“ Minimum semi-annual EBITDA ”), (ii) all payments due the Lender have been paid in full on time and (iii) the CANTU Transaction have been consummated and all condition to closing have been fulfilled. In the event the SPV’s semi-annual EBITDA will be lower than the Minimum semi-annual EBITDA, the transaction Fee shall deferred until such time as the trailing 6 months EBITDA is equal or greater than the Minimum semi-annual EBITDA, subject to all payments due the Lender have been paid on time and subject to the closing of the CANTU Transaction. Should the CANTU Transaction was not closed but the Borrower met the Minimum semi-annual EBITDA, the parties will negotiate in good faith the mechanism to pay BSC the BSC’s Transaction Fee. |
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| 2.7. | Other than payment of the SPA Consideration and the Transaction Fee and the BSC’s Transaction Fee and as permitted in this Agreement, the Borrower shall not be entitled to use the Mezzanine Loan for any other purpose. |
| 3. | CLOSING |
| 3.1. | The obligations of Lender to consummate the transaction contemplated hereby in relation to the Mezzanine Loan, are subject to the fulfilment, prior to or at the Closing Date, of each of the following conditions (any or all of which may be waived in writing by Lender at its sole discretion): |
| 3.1.1. | The Lender has reviewed and approved with respect to the SPV: the terms of the investment, the Financial Model, the due diligence (including conducting its own due diligence if so desired by the Lender); |
| 3.1.2. | the representations and warranties of the Borrower were true and correct when made and shall be true and correct at the Loan Closing as though made again at the Loan Closing Date; |
| 3.1.3. | the Borrower shall have performed and complied with all obligations and covenants required by this Agreement to be performed or complied with by it prior to or at the Loan Closing; |
| 3.1.4. | the Borrower is not in breach of the SPA; |
| 3.1.5. | all Loan Documents (other than this Agreement, and Loan Securities which shall be completed no later than 14 Business Days following the Loan Closing Date) have been duly executed by all parties thereto and shall be delivered simultaneously to the delivery of an executed copy of this Agreement; |
| 3.1.6. | no action, proceeding, investigation, regulation or legislation shall have been instituted or threatened before any Government Authority which to enjoin, restrain, prohibit or obtain substantial damages in respect of, or which is related to, or arises out of, this Agreement, or consummation of the transactions contemplated hereby; |
| 3.1.7. | no Material Adverse Change has occurred between the date of execution of this Agreement and the Loan Closing Date; |
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| 3.1.8. | the Loan Securities, other than the nomination of the authorized signatories in SPV’s Bank Accounts have been duly signed and ready to be filed with all relevant Government Authorities required in order to perfect such Security in accordance with Applicable Law. Borrower shall deliver to Lender certificates of registration and perfection thereof no later than 14 Business Days of the Closing Date. |
| 3.1.9. | The Mandate to Sell and all signed consents and deeds required for the transfer of the shares of the Borrower, which are subject to the Equity Pledge will be executed within 14 Business Days from the Loan Closing Date. |
| 3.2. | Closing Procedure |
Subject to Borrower providing Lender with prior written notice of at least 2 days, the closing of the transaction in relation to the Loan (the “ Loan Closing ”) shall occur no later than or on August 31 st , 2017, following satisfaction or waiver of all the conditions precedent to the Loan Closing, or at such other time, date and place as may be agreed by the Parties in writing (the time and date of the Loan Closing being herein referred to as the “ Loan Closing Date ”).
Immediately prior to the Loan Closing, the Borrower shall deliver to the Lender a certificate signed by an officer of the Borrower, in the form attached as Schedule E , confirming that all conditions precedent to the Loan Closing as set out in Section 3.1 above have been met and complied with.
At the Loan Closing (or at the dated specified below), the following actions and occurrences will take place, all of which shall be deemed to have occurred simultaneously and no action shall be deemed to have been completed and no document or certificate shall be deemed to have been delivered, until all actions are completed and all documents and certificates delivered:
| 3.2.1. | The Borrower shall deliver to Lender original certificates evidencing registration and perfection of the Loan Securities - except for the Equity Pledge and the Mandate to Sell - no later than 14 Business Days following the Loan Closing Date. The Lender may, at its option, put in place all the formalities necessary to have the Equity Pledge agreement formalized and registered with the competent Companies’ Business Register; |
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| 3.2.2. | The Borrower shall deliver to Lender approvals of the Board of Directors of the Borrower no later than 14 Business Days following the Loan Closing Date, evidencing the nomination of the authorized signatories on behalf of the Lender and the SPV in the Bank Account, and the SPV’s Bank Accounts; and shall deliver to Lender approvals of the relevant banks to the Lender’s satisfaction, evidencing receipt of documents nominating the authorized signatories on behalf of the Lender and the SPV in the Bank Account, and the SPV’s Bank Accountsno later than 30 Business Days following the Loan Closing Date as set forth in Section 10.9.2. |
| 3.2.3. | The Borrower shall deliver to Lender an executed irrevocable instruction notice to the SPV in the from attached hereto as Schedule F , that: (a) all Distributions to the Borrower shall be payable solely to the Bank Account; and (b) the Participator, as an observer to the Board of Directors of the SPV and of the Borrower, on behalf of the Lender, shall be invited to any such meeting and shall have the information rights as set forth in Schedule F . The irrevocable instructions notice shall be submitted to the SPV within 14 Business Days following the Loan Closing Date. |
| 3.2.4. | The Borrower shall deliver to Lender the Subordination Agreement in the form attached hereto as Schedule B , duly signed by the Borrower and BSC. |
| 3.2.5. | The Borrower shall deliver to Lender certified copies of the resolutions of BSC and Borrower’s relevant corporate bodies required for approving the execution, delivery and performance of the Loan Documents and all other documents and actions contemplated thereby; |
| 3.2.6. | The Lender shall make the Loan, less the Transaction Fee and less the BSC’s Transaction Fee, available to the Borrower as set forth in Section 2.2 above; |
| 3.2.7. | The Borrower shall use the Loan solely as stipulated in this Agreement; |
| 3.2.8. | Within 7 Business Days following the Loan Closing the Borrower shall provide the Lender with a resolution of the SPV’s board of directors pursuant to which the Participator on behalf of the Lender shall be invited to participate as an observer in any board of directors meetings of the SPV and shall receive all correspondence accordingly and have the information rights specified under Schedule F . The Borrower shall provide the Participator with all resolutions of the shareholder meetings (written resolution and protocol of shareholder meetings) within 7 Business Days of such meeting. |
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| 3.3. | CANTU Transaction |
| In the event the CANTU Transaction was closed the Lender shall be provided with the following securities: |
| 3.3.1. | Equity Pledge on Borrower holdings in CANTU SPV within 14 Business Days of CANTU Transaction closing. Evidencing the nomination of the authorized signatories on behalf of the Lender in CANTU SPV’s bank accounts within 14 Business Days of Cantu Closing; |
| 3.3.2. | Distribution from CANTU SPV shall be transferred to Borrower’s bank account which shall be open for the sole purpose of depositing distributions from Cantu [“ Borrower’s Designated Cantu Bank Account ”]. Lender will have signatory rights in this Bank Account. Such signature rights shall be granted to the Lender within 14 days of Cantu Closing. However, Distribution to shareholders from Borrower’s Designated Cantu Bank Account shall not be limited as long as payments due the Lender have been paid in full on time; and (ii) contribution of the required monthly funds to the Cash Reserve Account have been made, and (iii) there is no default under this Agreement with respect to the Udine Project. |
| 3.3.3. | In the event the CANTU Transaction will be terminated, any amount to be paid back to BSC out of the Cantu Deposit shall be transferred to the Cash Reserve Amount and shall be credited to the total sum of the Repayment Instalments for the 12 months as detailed in clause 10.15 (i) here below. |
| 4. | REPAYMENT |
| 4.1. | Commencing on the last day of the first 6 months following the Loan Closing (“ First Repayment Date ”), the Borrower shall commence repaying the Loan (together with any accrued Interest Rate on the outstanding balance of the Loan during each Interest Period) in quarterly instalments on each Repayment Date in accordance with the repayment schedule attached hereto as Schedule I [ Loan and Operation Fee Repayment Schedule ] (“ Repayment Instalments ” and the “ Repayment Schedule ”, respectively). |
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| 4.2. | Notwithstanding anything to the contrary set out herein, all amounts outstanding hereunder shall be repaid by and on the Final Repayment Date. |
| 5. | PREPAYMENT |
| 5.1. | Except as set forth in Section 5.3, Section 12.5.2 and Section 16.2 below, the Borrower shall not be entitled to prepay any or all of the amounts outstanding hereunder. |
| 5.2. | At any time following full payment of the first eight Repayment Instalments as provided in Schedule I [ Loan and Operation Fee Repayment Schedule ] Lender shall be entitled to prepayment from the Borrower of any amount outstanding hereunder or portions thereof (“ Prepaid Amount ”), which Prepaid Amount shall be determined by the Lender, provided however that such Prepaid Amount shall not exceed the maximum distributable proceeds of the SPV. The Lender shall notify the Borrower in a prior written notice, delivered at least 21 Business Days in advance of any such demand for payment of a Prepaid Amount. |
| 5.3. | Subject to the fulfilment of the conditions precedent set forth in Section 5.4 herein, and to the Right of First Refusal of the Lender as set forth in Section 5.5 below, the Borrower may refinance the Plant and prepay the entire outstanding amount of the Loan in cash (“ Prepayment Transaction ” and “ Prepayment ”, respectively). |
| 5.4. | Prepayment of the Loan pursuant to the provisions of Section 5.3 is subject to the cumulative fulfilment of each of the following conditions: |
| 5.4.1. | Refinance Notice (as defined in Section 5.5.1 below) was delivered to the Lender; |
| 5.4.2. | No Notice of Execution of Right of First Refusal (as defined in Section 5.5.2 below) has been delivered to the Borrower; |
| 5.4.3. | The net consideration due to Lender for the Prepayment by Borrower shall be: the unpaid principal amount of the Loan, plus the expected Interest Rate and Operation Fee for the remaining period of the Loan, minus 15% of such aggregate sum (“ Prepayment Fee ”). |
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| 5.5. | Lender shall be entitled to a Right of First Refusal with respect to Prepayment of the Loan, in accordance with the following procedure: |
| 5.5.1. | The Borrower shall deliver the Lender a written notice of its intent to enter into the Prepayment Transaction, which shall detail the following information: (a) the vending (i.e. shares or assets); (b) the consideration and payment terms of consideration; (c) the terms and conditions of refinance to be provided with respect to the Prepayment Transaction; and (d) any other material term or condition with respect to Prepayment (“ Refinance Notice ”). |
| 5.5.2. | the Lender shall be entitled (at its sole discretion) to notify the Borrower that it wishes, to amend the terms in which the Loan has been provided by the Lender such that it shall be provided upon the same terms and conditions set forth in the Refinance Notice, by delivery to the Borrower of a written notice within 21 (twenty one) days as of the receipt of a Refinance Notice (“ Notice of Execution of Right of First Refusal ”). |
| 5.5.3. | Should the Lender deliver to the Borrower a Notice of Execution of Right of First Refusal, then the Parties shall make the necessary amendments to this Agreement within fourteen (14) days as of the delivery of the Notice of Execution of Right of First Refusal. |
| 5.5.4. | In the event that Lender failed to deliver Borrower a Notice of Execution of Right of First Refusal within the period of time set forth in section 5.5.2 above or has sent written notice waiving its right of first refusal, The Borrower shall be free to prepay the Loan only in accordance with the terms specified in the Refinance Notice and Section 5.4 and by paying the Prepayment Fee. In the event that a Prepayment Transaction has not been closed within ninety (90) days as of the lapse of the period of time set forth in subsection 5.5.2 above, any Prepayment shall be subject to Lender’s Right of First Refusal according to the procedure set forth in this Section 5.5.1. |
| 5.5.5. | In the event that the Lender does not exercise its Right of First Refusal, it shall be entitled to the Prepayment Fee. |
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| 6. | INTEREST AND OPERATION FEE |
| 6.1. | Interest Rate |
| The rate of interest on the Loan shall be 14.5% per annum, calculated on a quarterly basis (“ Interest Rate ”). |
| 6.2. | In addition to the Interest Rate, the Lender shall be entitled to an annual operation fee as specified in Schedule I (the “ Operation Fee ”). The Operation Fee shall be paid quarterly at the same time as each interest repayment is due. |
| 6.3. | It is hereby clarified that the principal payments of the Loan, interest payments and the Operation Fee as mentioned in sections 5, 6.1 and 6.2 shall not exceed jointly a repayment of the principal of the Loan with a daily interest rate of 0.041%. |
| 6.4. | In the event that any of the provisions of this section 6 shall be deemed illegal or unenforceable, in whole or in part, due to a change in Italian regulations, than this section shall be given the broadest interpretation permissible in order for it to have the fullest effect possible as intended by the Parties, and the Borrower shall be obligated to pay Lender the balance created due to the change of the Italian regulations, and if it is unwilling or unable to pay such balance it shall Prepay the Loan and Pay the Prepayment Fee, within 90 days of Lender’s written instruction. |
| 6.5. | Interest Periods |
| 6.5.1. | The Interest Period for the Loan shall commence on the day of transferring each amount out of the Loan by the Lender in accordance of this Agreement, shall be on a quarterly basis and shall end on the last Final Repayment Date (“ Interest Period ”). |
| 6.5.2. | If the Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). |
| 6.5.3. | If the Interest Period would otherwise overrun the Final Maturity Date, it will be shortened so that it ends on that Final Maturity Date. |
| 6.5.4. | The Borrower shall pay accrued interest on the Loan on the last day of the Interest Period. |
| 6.6. | Interest on Overdue Amounts |
| As of the third instance of delayed payment, interest on any overdue amounts (if any), shall be payable at a rate of 4% per annum above the rate of interest payable on the Loan prior to such increase. |
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| 7. | TAXES |
| 7.1. | Tax Deductions |
| 7.1.1. | The Borrower shall make all payments to be made by it to Lender without any Tax Deduction, unless a Tax Deduction is required by Applicable Law. |
| 7.1.2. | If the Borrower is aware that if it must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction), it must promptly notify Lender. |
| 7.1.3. | If a Tax Deduction is required by Applicable Law to be made by the Borrower in respect of amounts payable hereunder, then the Borrower will: make the minimum Tax Deduction allowed by Applicable Law and must make any payment required in connection with that Tax Deduction within the time allowed by Applicable Law. |
| 7.1.4. | Within 30 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Borrower must deliver to Lender evidence satisfactory to Lender that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant Tax Authority. |
| 7.2. | Value Added Taxes |
| Any amount payable hereunder by the Borrower is exclusive of any value added tax. If any value added tax is chargeable, the Borrower shall add such value added tax amount to payments due to Lender, as appropriate, against receipt of a duly issued VAT invoice. |
| 8. | REPRESENTATION AND WARRANTIES |
| The Borrower hereby represents and warrants to the Lender, as of the date hereof, as follows: |
| 8.1. | Corporate Matters |
| 8.1.1. | Each of the Borrower and BSC is duly incorporated and organized and is validly existing and in good standing under the laws of the jurisdiction of its incorporation, with power and authority to carry on its business as now being conducted and as contemplated to be conducted. |
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| 8.1.2. | Each of the Borrower and BSC has all necessary corporate power and authority to enter into this Agreement and other Loan Documents and to perform its obligations hereunder and to consummate the transactions contemplated thereunder. |
| 8.1.3. | All corporate action on the part of each of the Borrower, its directors or shareholders necessary for the authorisation and execution of each Loan Document and the performance of all of its obligations thereunder have been taken. Each Loan Document constitutes valid and legally binding obligations of the Borrower, enforceable in accordance with its terms. |
| 8.1.4. | The execution and delivery of each Loan Document by the Borrower and BSC does not, and the consummation of the transactions contemplated thereby will not, violate any provisions of the Organisational Documents of the Borrower or BSC or any undertaking of any nature that is binding on it. |
| 8.1.5. | The execution and delivery of each Loan Document by the Borrower and BSC and the consummation by the Borrower and BSC of the transactions contemplated thereby does not require the consent or agreement of any Government Authority or any other third party under Applicable Law, which have not been received. |
| 8.2. | The Guaranteed Plant Operation Management Agreement will be signed on the SPA Closing. |
| 8.3. | Capitalization / Ownership |
| 8.3.1. | The authorized share capital of the Borrower is 10,000 Euro. |
| 8.3.2. | One hundred per cent (100%) of the issued and outstanding share capital of the Borrower, on a fully diluted basis taking into account all issued and outstanding shares of the Borrower of any class, after giving effect to the conversion or exercise (as the case may be) of all convertible securities, options and warrants as well as all other rights of any kind to acquire shares or exchangeable for shares of the Borrower), is held by BSC, and all such shares are, and except as permitted pursuant to this Agreement, will continue to be, held by BSC, free and clear of any Security Interests. |
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| 8.3.3. | There are no outstanding or authorised subscriptions, options, warrants, calls, rights, commitments, or any other agreements of any character directly or indirectly obligating the Borrower to issue any securities, whether convertible or not, or any rights to the foregoing, whether for consideration or otherwise. |
| 8.4. | Business to Date |
| The Borrower’s sole purpose is to operate in the Field of Operation. Since its incorporation, the Borrower has not engaged in any other business activity. |
| 8.5. | Financial Status |
| The Borrower does not have any liabilities, claims, or obligations of any nature, whether accrued, absolute, contingent, anticipated, or otherwise, whether due or to become due, other than pursuant to this Agreement, and the SPAs. |
| 8.6. | No Default |
| 8.6.1. | No breach or default by the Borrower is outstanding or will result from the execution of the Loan Documents or the performance of any transaction contemplated hereby and thereby. |
| 8.6.2. | No other event is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of the foregoing, would constitute) a default or termination event (however described) under any document which is binding on the Borrower or any of its assets to an extent or in a manner which has or would give rise to a Material Adverse Change. |
| 8.7. | Insolvency |
| No action, legal proceeding or other procedure or step described in Section 12.4 ( Insolvency / Liquidation ) has been taken in relation to the Borrower nor has been taken or is threatened in writing in relation to the Borrower and to the best knowledge of the Borrower the SPV. |
| 8.8. | Business Plan/Financial Model |
| The Financial Model shall be attached hereto as Schedule G . |
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| 8.9. | Litigation |
| No litigation, arbitration or administrative proceedings or injunction, writ, restricting order or order of any nature are (i) current or have been issued or, are pending before a court or other authorised authority or, are threatened in writing against the Borrower; nor (ii) current or have been issued or, are pending before a court or other authorised authority or, to the Borrower’s knowledge, threatened in writing against the SPV, which have or, if adversely determined, would give rise to a Material Adverse Change. |
| 9. | LENDER REPRESENTATIONS |
| The Lender hereby represents and warrants as follows: |
| 9.1. | (i) it has the knowledge and experience in business and financial matters similar to the subject matter of this Agreement; (ii) it has been allowed to review the SPA including the terms of the investment, the financial model and the due diligence reports, and has further conducted its own due diligence, and has been provided with all material documents it has requested ; and (iii) it has been given reasonable opportunity to meet with representative(s) of BSC/ the Borrower for the purpose of receiving information concerning the investment in the SPV. |
| 9.2. | It has and shall have the financial capability to carry out its obligations under this Agreement in full, when and as set forth herein. |
| 9.3. | Corporate Matters |
| 9.3.1. | The Lender is duly incorporated and organized and is validly existing and in good standing under the laws of the jurisdiction of its incorporation, with power and authority to carry on its business as now being conducted and as contemplated to be conducted. |
| 9.3.2. | The Lender has all necessary corporate power and authority to enter into this Agreement and other Loan Documents and to perform its obligations hereunder and to consummate the transactions contemplated thereunder. |
| 9.3.3. | All corporate action on the part of each of the Lender, its investment committees, directors or shareholders necessary for the authorisation and execution of each Loan Document and the performance of all of its obligations thereunder have been taken. Each Loan Document constitutes valid and legally binding obligations of the Lender, enforceable in accordance with its terms. |
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| 9.3.4. | The execution and delivery of each Loan Document by the Lender does not, and the consummation of the transactions contemplated thereby will not, violate any provisions of the Organisational Documents of the Lender or any undertaking of any nature that is binding on it. |
| 9.3.5. | The Lender shall deliver upon Loan Closing Date to Borrower certified copies of the resolutions of Lender’s relevant corporate bodies required for approving the execution, delivery and performance of the Loan Documents and all other documents and actions contemplated thereby. |
| 10. | COVENANTS |
As long as the Loan is not fully and definitively paid to the Lender, the Borrower undertakes and covenants towards the Lender as follows: (the following undertakings and covenants will apply mutatis mutandis to the SPV, as applicable):
| 10.1. | Existence |
| 10.1.1. | The Borrower shall, unless otherwise consented to by the Lender at its sole discretion, at all times preserve and maintain in full force and effect: (a) its existence as a limited company under the Applicable Laws of the State of Italy; and (b) good title to its properties and assets. |
| 10.1.2. | The Borrower must not, without the consent of the Lender acting in their sole and exclusive discretion, enter into any amalgamation, demerger, merger or reconstruction or create or register a Security Interest over its shares or other securities. |
| 10.1.3. | The Borrower shall not make any changes, which adversely affect the Lender or its rights under the Loan Documents, to its Organisational Documents or capital structure without the prior consent of the Lender. |
| 10.2. | Compliance with laws |
| The Borrower shall comply with all Applicable Laws, including in relation to any Tax. |
| 10.3. | Ranking |
| The Borrower must ensure that its payment obligations under the Loan Documents rank in priority to all its other present and future unsecured payment obligations, except for obligations mandatorily preferred by Applicable Law. |
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| 10.4. | Negative pledge |
| 10.4.1. | The Borrower shall not create any Security Interest on any of the respective assets of the SPV other than in relation to any of the Loan Documents or SPV facility agreement in the event of refinancing. |
| 10.4.2. | The Borrower shall not: |
| (a) | sell, transfer or otherwise dispose of any of the respective assets of the SPV to any third party prior to repayment in full of amounts owing to the Lender pursuant to this Agreement; |
| (b) | sell, transfer or otherwise dispose of any of their respective receivables on recourse terms; |
| (c) | enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts. |
| 10.5. | Disposals |
| The Borrower must not either in a single transaction or in a series of transactions and whether related or not, dispose of all or any material part of its assets. |
| 10.6. | Financial Indebtedness |
| The Borrower: |
| 10.6.1. | must not incur, other than under the Loan Documents and any facility agreement in the event of refinancing any financial indebtedness of any nature (other than indebtedness incurred during the regular course of business pursuit of its Field of Operation and within the framework of the Business Plan) during the Term of this Agreement, it being clarified that any indebtedness owing to the Seller under the SPA shall be permitted to remain in place without breach hereof; |
| 10.6.2. | shall not issue, provide or otherwise, other than facility agreement in the event of refinancing, incur any guarantee, counter indemnity or similar obligation; and |
| 10.6.3. | must not be the creditor in respect of any financial indebtedness other than in the pursuit of its Field of Operation and within the framework of the Business Plan. |
| 10.7. | Change of business |
| The Borrower must not carry on any business other than the Field of Operation. |
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| 10.8. | Loan Securities |
| 10.8.1. | The Borrower will maintain all Security Interests created under the Loan Securities for the benefit of the Lender and will affect all registrations relating thereto. |
| 10.8.2. | As of the Loan Closing, the signatory rights in the Bank Account will be as set forth in Schedule H. |
| 10.9. | Bank Accounts of the SPV |
| 10.9.1. | The Borrower shall procure that the SPV shall hold only the SPV’s Bank Accounts, and shall not open any additional bank accounts without the prior written consent of the Lender. |
| 10.9.2. | No later than 30 Business Days following the Loan Closing Date, the signatory rights in the SPV’s Bank Accounts will be as set forth in Schedule H . |
| 10.10. | Material Contracts |
| 10.10.1. | Without the written consent of the Lender, the Borrower shall not enter into any material contract other than the Loan Documents or as may be required pursuant to a facility agreement in the event of refinancing. |
| 10.11. | Shareholder Interests |
| 10.11.1. | The Borrower must not without the written consent of the Lender which consent shall not be unreasonably withheld: |
| (a) | issue any shares, options, warrants or other rights to subscribe, purchase or acquire any shares or other securities convertible into or exchangeable for its shares; |
| (b) | alter any rights attaching to its shares as at the date of this Agreement; |
| (c) | grant or create any new rights or options to participate directly or indirectly in its revenues or profits ; |
| (d) | purchase, cancel, redeem or take steps to reduce any of its shares. |
| Without derogating from the above, the Borrower shall not issue, purchase, cancel, redeem or repay any capital notes prior to repayment of due and payable amounts owing to the Lender pursuant to this Agreement. |
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| 10.12. | Guaranteed Plant Operation Management Agreement |
| 10.12.1. | Any amendment to the Guaranteed Plant Operation Management Agreement shall be subject to the prior written consent of the Lender and any breach thereof shall be considered an Event of Default under Section 12 hereunder. |
| 10.13. | Arrangements with Related Parties |
| 10.13.1. | Without the written consent of the Lender at the Lender’s sole discretion, the Borrower and the SPV must not enter into any transaction, agreement or arrangement with a Related Party, with the exception of an agreement for the withdrawal of management fees deferred to the Loans hereunder, and subject to limitation on Distribution under this Agreement. |
| 10.14. | Business Plan |
| 10.14.1. | The Borrower shall provide the Lender with respect to the Borrower, by September 30 of each calendar year a business plan including cash budget detailed on a monthly basis, which shall be based on the Financial Model as updated on a yearly basis (“ Suggested Business Plan ”) as well as an annual budget for the next 5 years. |
| 10.14.2. | Any deviation exceeding 10% of the free cash flow in any year under the Financial Model requires the Lender’s written preapproval. |
| 10.14.3. | The Borrower shall make any amendment in the Suggested Business Plan agreed between the Lender and the Borrower. |
| 10.14.4. | The Borrower shall exercise its best efforts to ensure that the Borrower’s and SPV’s expenses shall be in accordance with the approved Business Plan. |
| 10.15. | Distributions |
| The Borrower shall not make any Distribution until the earlier of: (a) closing of CANTU Transaction; or (b) the elapse of two (2) years following the Loan Closing Date; following which, Borrower may make Distributions subject to all of the following conditions being satisfied: |
| (i) | 50% of each Distribution shall be accumulated and reserved in a debt service fund in the Bank Account in the aggregate amount of 12 months of Repayment Instalments and Operation Fee (“ Cash Reserve Amount ”); |
| (ii) | Any amounts, including the Repayment Installments due and payable, up to such time, pursuant to any Loan Document have been paid to the Lender; |
| (iii) | The Budget versus Actual Report has been provided to the Lender; |
| (iv) | No Event of Default is outstanding (or would result from the payment or transfer); |
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| (v) | Such Distribution is permitted by Applicable Law; |
| (vi) | With respect to Material Adverse Change as set forth under Section 10.16 hereunder. |
| 10.16. | Notwithstanding the foregoing, in the event of any evidence of any Material Adverse Change, including inter alia , future substantial decline in the financial performance of the Plant (such as material tariff changes, pending cancelation of raw material supply agreement without any parallel alternative agreement) resulting in a decline in any of the years of the repayment of the Loan in the cash flow available for Distribution of the SPV or the Borrower by more than 10% compared to the Financial Model the Borrower shall not be allowed to make any further Distributions until the Lender is reasonably satisfied that the Borrower can meet its commitment to repay the Loans in full. Notwithstanding the above, the Borrower shall be entitled to make Distributions, subject to accumulating an amount equal to eight Repayment Instalments, in a reserve fund, which is pledged in favour of the Lender, prior to such Distribution. |
| 10.17. | Subject to limitation set forth in Section 10.15 above and after Lender has received each of the respective Repayment Installments, the Borrower shall be entitled to transfer any remaining amounts in the Bank Account, other than the Cash Reserve Amount (“ Remaining Amounts ”) to any bank account, and shall be entitled to use such Remaining Amounts in accordance with its sole discretion, including without limitation, transfer such Remaining Amounts or any part thereof to its shareholders as distributable proceeds, dividends or otherwise. |
| 10.18. | Without derogating from the terms of Section 10.1610.15, the Borrower shall notify the Lender in writing of any Distribution, at least 10 (ten) days prior to the proposed Distribution date. |
| 10.19. | SPV’s Distributions |
| 10.19.1. | The Borrower will cause the SPV to make Distributions of the maximum amount that may be so distributed by it under applicable law and after taking into consideration pending and expected expenses and costs. |
| 10.19.2. | The Borrower will not, without the prior written approval of Lender, agree to any additional restrictions being imposed on the making of such Distributions other than those under Applicable Law, the Guaranteed Plant Operation Management Agreement and the facility agreement in the event of refinancing or if such Distributions cannot be distributed due to pending and expected expenses and costs of the SPV, and will not permit any change or amendment to the Guaranteed Plant Operation Management Agreement which could result in such additional restrictions being imposed. |
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| 10.20. | Information Rights |
| The Borrower undertakes to provide Lender with the following: |
| 10.20.1. | Within Ninety (90) days of the end of each fiscal year, the audited annual financial statements of the Borrower and the SPV audited by an accounting firm approved by the Lender in writing; |
| 10.20.2. | within sixty (60) days of the end of each quarter, the reviewed financial statements of the Borrower and the SPV reviewed by an accounting firm approved by the Lender in writing; |
| 10.20.3. | Within fifteen (15) days of the end of each calendar month a Budget versus Actual Report for the SPV and for the Borrower; |
| 10.20.4. | immediately upon being aware thereof, notice of any breach or potential breach by the Borrower of the Loan Documents; |
| 10.20.5. | promptly following issuance or receipt of same and no later than 7 (seven) days of the receipt thereof, copies of all reports and material documents relating to the SPV, the Plant or the Borrower such as management reports, O&M reports, financial reports, etc. and any other information or data reasonably requested by the Lender from time to time, provided that such information is held by the Borrower. |
| 10.20.6. | The Participator, on behalf of the Lender, shall be invited to participate as an observer in any board of directors meetings of the SPV and shall receive all correspondence accordingly and have the information rights specified under Schedule F . |
| 11. | UNDERTAKING OF THE LENDER |
| 11.1. | If the signature of the Lender, as a signatory of the Bank Account was requested with respect to a payment: (i) included in the most recent Financial Model or budget approved in writing by the Lender and (ii) included in an agreement approved in writing by the Lender or payment due by any authority by regulation, and was not approved within 7 Business Days of providing the Lender with all required detail concerning such expenditure, the Board of Directors of the SPV shall be entitled to adopt a new signature rights resolution to allow such payment with the sole signature of the Company’s director. It is hereby clarified, that said new signature rights resolution shall be valid only in relation to such payment not approved by the Lender as specified above, and that following such payment, the Board of Directors of the Borrower shall immediately reinstate the signature rights set forth in Schedule H and deliver such resolution to the Bank. |
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| 12. | EVENTS OF DEFAULT |
| 12.1. | The occurrence of any of the events or circumstances set forth in Sections 12.2- 12.5 shall constitute an Event of Default hereunder. The Borrower undertakes to notify the Lender promptly upon the occurrence of an Event of Default or of any circumstances which come to the Borrower’s attention which would give rise to an Event of Default. |
| 12.2. | Non-Payment |
| The Borrower fails to pay two consecutive Repayment Instalments or Operation Fee. |
| 12.3. | Other Breaches |
| The Borrower breaches any material obligation, covenant or undertaking under any Loan Document (including, without limitation failure to register, provide and/or carry out any of the Loan Securities) which is not referred to in this Section 12, and such breach has not been cured within 21 (twenty-one) days, or such other written notice period which may be stated in the respective Loan Document, from receipt of notice from any of the Borrower’s counterparties to such Loan Document that a breach has occurred, or any longer period permitted for cure pursuant to the relevant Loan Document, or any representation or warranty made by the Borrower hereunder was, when made, untrue or misleading in any material way. It is hereby clarified that a strike of the Bank or any act or omission by the Lender which delays the compliance with Section 3.2.2 shall not constitute a material breach under this Section. |
| 12.4. | Insolvency / Liquidation |
| 12.4.1. | The Borrower or the SPV (whether simultaneously or not) is unable to pay its debts or becomes unable to pay its debts as they fall due or suspends making payments (whether of principal or interest) with respect to all or any class of its debts. |
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| 12.4.2. | A trustee, liquidator, receiver or similar officer is appointed in respect of the Borrower or the SPV (or any material asset thereof and whether simultaneously or not) or distress or any form of execution is levied or enforced upon or claimed against any such assets, which proceedings are not dismissed, denied, stayed, discharged or struck out within 90 (ninety) days. |
| 12.4.3. | The Borrower, or the SPV, convenes a meeting of its creditors or proposes to make any arrangement or composition with, or any assignment for the benefit of, its creditors or a petition is filed or a meeting is convened for the purpose of considering a resolution or other steps are taken for the making of an administration order in relation to such entity or for its winding up, bankruptcy or dissolution. |
| 12.4.4. | Any person presents a petition, or files documents with a court or any registrar for its winding-up, administration or dissolution (including on a temporary basis) of the Borrower or the SPV (whether simultaneously or not) or an order for their winding-up, administration or dissolution is made, including on a temporary basis, (unless any such proceedings or acts are dismissed, denied, stayed, discharged or struck out within 90 (ninety) days). |
| 12.4.5. | Sections 12.4.1-12.4.2 above shall apply with relation to BSC in the event that such occurrence has an actual effect on the repayment of the Loan under the terms of this Agreement. |
| 12.5. | Remedies |
| 12.5.1. | Lender shall deliver a written notice to the Borrower informing it of the occurrence of an Event of Default (“ Notice of Default ”). |
| 12.5.2. | Borrower shall have 7 (seven) days following the receipt of a Notice of Default (the “ Cure Period ”) to either (i) Cure such Event of Default; or (ii) Prepay the Prepayment Fee. |
| 12.5.3. | In the event that the Borrower does not cure such Event of Default or doesn’t Prepay the Prepayment Fee as aforementioned within the Cure Period, the Lender shall be entitled to take all steps required to enforce any of the Loan Securities and the Security Interests thereunder (including through use of the Mandate to Sell attached hereto as Schedule D ) and the Prepayment Fee shall be immediately due and payable without any further action by the Lender. It is hereby clarified, that parallel to realization of the Loan Securities and until final repayment of all sums under this Agreement to the Lender, in the event of such an uncured Event of Default, the Lender will be entitled to exercise all voting rights in the Borrower and, therefore, to immediately convene a shareholder meeting for the purpose of revoking/appointing the Board of Directors of the Borrower, all according to the Equity Pledge Agreement. |
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BSC hereby unconditionally and irrevocably guarantees to the Lender the fulfillment of Borrower’s obligations and undertakings under this Agreement, including without limitation, all monetary obligations of the Borrower, provided that: (i) Lender shall first enforce the Loan Securities in accordance with the provision of this Agreement and (ii) the Loan Securities are insufficient for full repayment of the Loan, any interest accrued thereon and the outstanding Operational Fee, to the Lender (“ BSC Guarantee ”). The enforcement of BSC Guarantee shall be solely for the remaining portion of the Loan, any interest accrued thereon and the outstanding Operational Fee, which remains unpaid following a period of 90 days of such enforcement of the Loan Securities.
| 12.5.4. | In the event that it is judicially determined that the Lender has (a) exercised the Equity Pledge and transferred the shares of the Borrower via the Mandate to Sell, not in accordance with the terms of this Agreement; and/or (b) has exercised the Bank Account Pledge and frozen or withdrawn funds from the Bank Account (pursuant to the Pledge Agreement and/or the Irrevocable Letter of Instructions to the Bank attached as an appendix to the Pledge Agreement Over Bank Account) not in accordance with the terms of this Agreement, then: (i) if the Equity Pledge has been exercised, the shares shall be returned to BSC; (ii) if the Bank Account Pledge has been exercised, the Lender shall immediately repay any funds withdrawn from the Bank Account; and (iii) in either event, the Borrower shall be entitled to a payment of 1,000,000 Euro from the Lender or to retain the remaining amount of the Loan, whichever is higher. |
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| 13. | PRIORITY OF MEZZANINE LOANS |
| 13.1. | Insufficient Funds |
In the event that the Borrower has insufficient funds to discharge all the amounts then due hereunder, such payment shall be applied towards the obligations of the Borrower hereunder in the following order:
| 13.1.1. | first , in or towards payment of due and payable fees as set out in Section 15 (expenses) , if any; |
| 13.1.2. | second , in or towards payment of due and payable late interest and default interest; if any; |
| 13.1.3. | third , in or towards payment of due and payable interest and Operation Fee, if any; |
| 13.1.4. | fourth , in or towards repayment of overdue amounts of principal of the Loan, if any; |
| 13.1.5. | fifth , in or towards repayment of due and payable amounts of principal (including any interest thereon), if any; and |
| 13.1.6. | sixth , in or towards payment of any other sum due but unpaid hereunder. |
The Lender may vary the order set out above.
| 14. | CALCULATIONS |
| 14.1. | Accounts |
As between the Borrower and the Lender, entries made into the accounts maintained by the Lender in connection with this Agreement are prima facie evidence of the matters to which they relate for the purpose of any litigation or arbitration proceedings.
| 14.2. | Certificates and determinations |
Any certification or determination by the Lender of a rate or amount hereunder shall set out the calculation in reasonable detail and will be prima facie evidence of the matters to which it relates.
| 14.3. | Calculations |
Any interest or fee accruing hereunder accrues from day to day and is calculated on the basis of the actual number of days elapsed and a 365 day year.
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| 15. | FEES AND EXPENSES |
| 15.1. | Each party shall bear all costs and expenses (including legal fees) incurred by it in connection with this Agreement including the enforcement of any of its rights hereunder. All fees required to arrange for the securities shall be paid by the Borrower. |
| 16. | ASSIGNMENTS AND TRANSFERS |
| 16.1. | Transfers by the Borrower |
| 16.1.1. | The Borrower must not permit or consent to any Transfer or disbursement of shares of the Borrower unless permitted under this Agreement or in respect of any change in the shareholder register of the Borrower by virtue of the perfection and enforcement of any Security Interest in the Borrower’s shares. |
| 16.1.2. | The Borrower and/or BSC may not Transfer any of their rights or obligations hereunder without the prior consent of the Lender. |
| 16.2. | Transfers by Lender |
Subject to obtaining any approvals required under Applicable Law (if any) and subject to the Borrower’s right to Prepay the Loan under this Section 16.2, the Lender shall be entitled to Transfer any of its rights or obligations hereunder (including any charge or pledge issued as a security for the repayment of the Loan) without the prior consent of the Borrower, provided that the Lender shall notify the Borrower in a written notice of any such intent of Transfer no fewer than thirty (30) days prior to such Transfer. The notice shall include information regarding the identity of the transferee and its signed written commitment to take on itself all rights and obligations under this Agreement (“ Notification of Transfer ”). In the event of a Transfer by the Lender, the Borrower shall have the right to notify the Lender that it wishes to Prepay the Prepayment Fee, within 30 days of receiving the Notification of Transfer (“ Prepayment Notification ”). Should the Borrower deliver to the Lender a Prepayment Notification and subject to the execution of such Prepayment including the Prepayment Fee in full within 30 days, no Transfer shall occur.
| 17. | CONFIDENTIALITY |
| 17.1. | No public announcement or other disclosure concerning the transactions contemplated hereunder shall be made by the Parties save in a form agreed between the Parties or otherwise as required by Applicable Law. To the extent an announcement is required under Applicable Law, the parties shall use their best efforts to agree the form of such announcement in due time and shall otherwise fulfil its obligations as required by Applicable Law by providing the minimum information required pursuant to such Applicable Law, at the discretion of the disclosing party, acting reasonably. |
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| 17.2. | The Parties shall not disclose any information concerning the transactions contemplated hereunder or the Plants and shall keep all such information confidential. |
The foregoing shall not apply with respect to:
| 17.2.1. | information which is or becomes part of the public domain, other than as a result of any breach of the obligations of the recipient Party under this Agreement; |
| 17.2.2. | information explicitly approved for release by prior written authorization of the Parties; |
| 17.2.3. | information which is required to be disclosed by Applicable Law, provided that the relevant Party shall provide the other parties with prior written notice of the required disclosure and the disclosure shall be limited to the extent expressly required; |
| 17.2.4. | disclosure of any information to the employees, agents, representatives, advisors, current or potential investors of such party, provided that they are subject to obligations to keep such information confidential. |
| 18. | WAIVER OF CLAIMS |
| 18.1. | The Borrower shall protect, defend, indemnify, and hold the Lender and its directors, employees and advisors harmless against and in respect of any and all loss, liability, deficiency, damage, cost, or expense, or actions (including reasonable legal fees and expenses) in respect of third party claims arising solely from actions or omissions of the Borrower in relation to the Loan Documents |
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| 19. | MISCELLANEOUS |
| 19.1. | Communications |
All notices or other communications hereunder shall be in writing and shall be given in person, by registered mail (registered international air mail if mailed internationally), by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile transmission (provided that written confirmation of receipt is provided) with a copy by mail, addressed as set forth below:
| [ ] | ||
|
If to the Borrower:
[ ]
If to BSC:
|
||
| [ ] |
or such other address as any party may designate to the other in accordance with the aforesaid procedure. All communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile transmission shall be deemed given on the business day following transmission with confirmed answer back, and all notices and other communications sent by registered mail (or registered air mail if the posting is international) shall be deemed given ten (10) days after posting.
All communications between the parties with respect to this Agreement shall be in the English language.
| 19.2. | Successors and Assignees |
This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
| 19.3. | Delays or Omissions; Waiver |
The rights of a Party under this Agreement may be waived by such party only in writing and specifically; the conduct of any one of the Parties shall not be deemed a waiver of any of its rights pursuant to this Agreement and/or as a waiver or consent on its part as to any breach or failure to meet any of the terms of this Agreement or as an amendment hereto. A waiver by a Party in respect of a breach by the other party of its obligations shall not be construed as a justification or excuse for a further breach of its obligations.
No delay or omission to exercise any right, power, or remedy accruing to any party hereto upon any breach or default by the other under this Agreement shall impair any such right or remedy nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein or in any similar breach or default thereafter occurring.
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| 19.4. | Amendment |
This Agreement may be amended or modified only by a written document signed by all the Parties hereto.
| 19.5. | Entire Agreement |
This Agreement (together with the other documents contemplated hereby) contains the entire understanding of the Parties with respect to its subject matter and all prior and contemporaneous negotiations, discussions, agreements, representations, commitments and understandings between them with respect thereto not expressly contained herein shall be null and void in their entirety, effective immediately with no further action required.
| 19.6. | Severability |
If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the validity or enforceability in that jurisdiction of any other provision hereof or the validity or enforceability in other jurisdictions of that or any other provision hereof.
Where provisions of any Applicable Law resulting in such illegality, invalidity or unenforceability may be waived, they are hereby waived by each party to the full extent permitted so that this Agreement shall be deemed valid and binding agreements, in each case enforceable in accordance with its terms.
| 19.7. | Counterparts, Facsimile Signatures |
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. A signed Agreement received by a party hereto via facsimile will be deemed an original, and binding upon the party who signed it.
| 19.8. | Agent for Service of Process |
BSC and the Borrower hereby appoint Eastern Sphere, with an office as at 35 Assuta St. Even Yehuda Israel, 40500, Israel as its agent to receive on behalf of BSC and/or the Borrower and/or Eastern Sphere, service of copies of the summons and complaint and any other process which may be served in any action or proceeding in Israel in connection with this Agreement. Such service may be made by post or personal delivery, care of Eastern Sphere at the above address, and BSC and the Borrower hereby authorizes and directs Eastern Sphere to accept such service on its behalf and agrees that failure by such agent to notify either BSC, Eastern Sphere or the Borrower of the process will not invalidate the proceedings concerned.
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| 19.9. | Governing Law, Disputes and Venue |
| 19.9.1. | This Agreement shall be governed by and construed in accordance with the laws of the State of Israel without regard to conflicts of laws or the choice of law principles of any jurisdiction and without the need of any party to establish the reasonableness of the relationship between such laws and the subject matter of this Agreement. |
| 19.9.2. | All disputes, controversies, claims or differences between the Parties arising out of, in relation to or in connection with the Agreement, shall be referred to the arbitration upon the request of either Party, before the Arbitrator. |
| 19.9.3. | The arbitration shall be conducted in accordance with the Arbitration Law, 5728-1968 of Israel and shall be held as promptly as possible in Tel Aviv and at such time as the Arbitrator may determine. This Clause constitutes an arbitration agreement of the Parties as defined in the aforesaid Arbitration Law. |
| 19.9.4. | The Arbitrator shall resolve the dispute within 90 days. All arbitration proceedings shall be conducted in the Hebrew language (unless agreed otherwise by the Parties). The Arbitrator shall not be bound by the rules of evidence nor shall he/she be bound by procedure laws, but he/she shall be bound by substantive law and he/she will give reasons for his/her decision. The Arbitrator shall be entitled to make interim or temporary awards whether mandatory or prohibitive. The decision of the Arbitrator shall constitute an award but shall be subject to appeal in accordance with Section 29B of the Arbitration Law. The costs of the arbitral process, including fees and expenses of the Arbitrator, shall be borne as shall be decided by the Arbitrator. |
| 19.10. | Further Actions |
At any time and from time to time, each party agrees, without further consideration, to take such actions and to execute and deliver such documents as may be reasonably necessary to effectuate the purposes of this Agreement.
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| 19.11. | No Third-Party Beneficiaries |
Nothing in this Agreement shall create or confer upon any person or entity, other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities.
***
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[Signature Page of Long Term Mezzanine Loan Agreement]
IN WITNESS WHEREOF , this Agreement has been duly executed on the date herein above set forth.
| /s/ Blue Sphere Corporation | /s/ Helios E.M. Investments L.P | ||
| Blue Sphere Corporation | Helios E.M. Investments L.P | ||
| /s/ Bluesphere Italy SRL | |||
| Bluesphere Italy SRL |
Exhibit 10.2
EQUITY PLEDGE AGREEMENT
This EQUITY PLEDGE AGREEMENT (this “ Pledge Agreement ”), is entered into
by and between
BLUE SPHERE Corp. , incorporated and existing under the laws of Nevada, having its registered office at 301 McCullough Drive 4th. Floor, Charlotte, NC 28262, represented by Mr. Shlomo Palas, [ ], acting in his capacity of CEO and legal representative of the company, duly empowered for the purposes hereof ( “Pledgor” ),
and
Helios 3 Italy Bio-Gas 2 L.P , a limited partnership organized under the laws of the State of Israel, partnership number [●] of Hakfar Hayarok Street, Ramat Hasharon, Israel, herein represented by its legal representative, Mr. Nimrod Goor, [ ] (“ Secured Party ” or “ Lender ”),
(hereinafter the Secured Party and the Pledgor are referred to individually as “ Party ” and collectively as “ Parties ”)
RECITALS
| 1) | the Pledgor is the Sole Quotaholder of Bluesphere Italy S.r.l., a private limited liability company organized and existing under the laws of the State of Italy (Tax Code and VAT No. 09967150963) enrolled in the Companies’ Register of Milan No. 2124774, having its registered office at Corso Giacomo Matteotti, 1, Milan, (the “ Company ” or the “ Borrower ”), being the owner of the entire quota holding of the Company having a nominal value equal to Euro 10,000.00 (hereinafter the “ Quota ”); |
| 2) | on August 30 th , 2017 the Company as “Borrower”, the Pledgor and the Lender entered into the Long Term Mezzanine Loan Agreement (hereinafter the “ Loan Agreement ”); |
| 3) | pursuant to the Loan Agreement, the Company is borrowing money (1,600,000.00 EUR) from Lender (the “ Loan ”); |
| 4) | pursuant to Section 4 of the Loan Agreement, the amount under Recital No. 3) above shall be re-paid to the Secured Party, increased with the interest on the Loan and the Operation Fee calculated pursuant to Section 6 of the Loan Agreement; |
| 5) | Section 10.8 of the Loan Agreement provides that the [Pledgor and] Borrower shall maintain all Security Interests created under the Loan Securities as defined in the Loan Agreement for the benefit of the Secured Party; |
| 6) | among the Loan Securities provided by the Loan Agreement, the Pledgor undertook to enter into and maintain an Equity Pledge as defined in the Loan Agreement. |
NOW, THEREFORE, in consideration of the foregoing premises, the Parties hereto agree as follows:
| 1. | Definitions and Interpretation |
The Recitals to this Pledge Agreement constitute an integral and substantive part of this Pledge Agreement and are binding between the Parties.
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Terms defined in the Loan Agreement shall have the same meaning where used capitalized in this Pledge Agreement, except where the context otherwise requires.
In this Pledge Agreement the following expressions shall have the following meanings:
| ICC | means Italian Civil Code. |
| Pledge | has the meaning given to such term in Clause 2 below. |
| Secured Obligations |
means all liabilities and obligations of the Borrower under the Loan Agreement, including the following:
(a) any and all present and future monetary obligations of the Borrower and the Pledgor towards the Secured Party under the Loan Agreement including, without limitation:
- the obligation to repay or prepay (Sections 4 and 5 of the Loan Agreement ) to the Secured Party the Loan; the obligation to pay to the Secured Party interest (including, without limitation, default interest) accrued on any borrowing made or other amount outstanding under the Loan Agreement (Sections 6 Loan Agreement );
- the obligation to pay to the Secured Party commissions, expenses, cost, fees, Operation Fee, charges, compensation, indemnity, taxes or other liabilities due, owing or incurred to the Secured Party, all under the Loan Agreement;
- the obligation to pay any expenses or costs incurred by the Secured Party in respect of any recovery or collection of the amounts due to it under the Loan Agreement, including any cost and expenses incurred in connection with the enforcement of this Pledge Agreement and the security interest created hereunder;
(b) all present and future monetary obligations of the Borrower and the Pledgor towards the Secured Party resulting from the invalidity, ineffectiveness or unenforceability of any of the obligations referred to in paragraph (a) above;
(c) all present and future monetary obligations of the Borrower towards the Secured Party, which arise or might arise – also after the date of full and unconditional discharge of each of the obligations referred to in paragraphs (a) and (b) above – in case of claw-back or ineffectiveness, pursuant to the applicable law, of any payment made by the Borrower or any other person to discharge, in full or in part, any of the obligations referred to under letters (a) and (b) above.
|
| 2. | Pledge |
| 2.1 | Creation of the Pledge. As collateral security for the timely and full payment and discharge of any and all the Secured Obligations, and as provided in the Loan Agreement, the Pledgor hereby irrevocably grants in favor of the Secured Party a first ranking pledge over the Quota (the “ Pledge ”). |
| 2.2 | Secured Obligations. The Pledge created hereunder secures, collectively and for the entire value, all the Secured Obligations and any of them individually, without the Secured Party being obliged to take further action against the Pledgor or enforce any other security interest which may have been granted by the Pledgor. |
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| 2.3 | Formalities for the perfection of the Pledge. Within 10 Business Days from the signing of this Pledge Agreement, the Pledgor shall register it in the Companies’ Register, indicating the Secured Party as beneficiary of such a guarantee. |
| 3. | Validity of the Pledge |
| 3.1 | Continuation of the Security. The Pledge creates a continuing security interest, in addition and without prejudice to any other security interest, guarantee or Loan Securities, as provided in the Loan Agreement. |
| 3.2 | Modification and novation. |
| 3.2.1 | Any modification whatsoever to the Loan Agreement or any part and/or provision thereof or one or more Secured Obligations will not affect or procure a novation of the Pledge, so that the Pledge shall be effective also on the said modifications from the date of execution of this Pledge Agreement. |
| 3.2.2 | The Parties hereby expressly acknowledge and agree that, in accordance with article 1232 ICC, the Pledge, all rights of the Secured Party under this Pledge Agreement and all obligations of the Pledgor hereunder shall maintain their full and unfettered validity and effectiveness also in case of novation of one or more Secured Obligations until this Pledge Agreement will be terminated according to Clause 8 below or unless it is agreed in writing between the Parties. |
| 3.2.3 | Without prejudice to the provision of Clause 3.2.2 above, in case of one or more changes whatsoever of the Loan Agreement or any part and/or provision thereof, the Pledgor hereby irrevocably and unconditionally undertakes to promptly execute, at its expenses, any deed, agreement, document, act, certificate or instrument whatsoever, and shall take all the steps and actions, as the Secured Party might deem necessary or appropriate, or in any case request, in order to preserve the rights of the Secured Party under this Pledge Agreement and/or confirm the existence and continuation of the security rights and the Pledge under this Pledge Agreement in favor of the Secured Party. |
| 4. | Enforcement of the Pledge |
| 4.1 | Pursuant to Section 12.5.3 of the Loan Agreement, at the time of occurrence of an Event of Default (as defined in the Loan Agreement) and if it is not cured by the Company within the Cure Period (as defined in the Loan Agreement), the Secured Party is entitled to take all steps required to enforce any of the Loan Securities provided and the relevant Security Interests thereunder. |
| 4.2 | Any and all amounts due under the Loan Agreement shall be immediately due and payable without any further action to be carried out by the Lender. |
| 4.3 | With specific regard to this Pledge Agreement, upon the occurrence of an Event of Default, the Secured Party is entitled to cause the sale of the Quota pursuant to the procedure provided for by articles 2796 and 2797 ICC. |
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| 5. | Voting right |
| 5.1 | By way of derogation from article 2352 ICC, the Pledgor shall be entitled to exercise all voting rights attached to the Quota and exercise all other rights and powers in respect of the Quota in a manner which does not adversely affect the validity or enforceability of this Pledge (therefore until any amounts due under the Loan Agreement are not repaid to the Secured Party the Pledgor shall not pass any decisions which may cause the Company to sale or transfer assets and/or participations) or cause an Event of Default to occur with the exception of the voting rights concerning the adoption of the resolutions provided for by article 2479, II par., numbers 4 and 5 of the ICC and including any and all resolutions concerning any direct or indirect sale or the transfer of company assets and participations, that shall be exercised by the Pledgor having previously received the Secured Party’s consent, to be expressed in the shareholders’ meeting duly conveyed, to adopt such resolution. Following the occurrence of an Event of Default and provided that such Event of Default is not cured by the Company within the Cure Period (as defined in the Loan Agreement), the Secured Party shall be immediately vested with all voting and economical rights regarding the Quota and the Pledgor shall not, be able to exercise any voting rights or otherwise in relation to the Quota. |
| 6. | Pledgor’s Representations and Undertakings |
| 6.1 | Representations |
The Pledgor hereby represents and warrants to Secured Party as follows:
| – | the Quota represents the entire issued corporate capital of the Company; |
| – | it has not sold or disposed of all or any of its rights, title and interest on the Quota; |
| – | except for this Pledge, the Quota is not encumbered, pledged or charged in any manner whatsoever; |
| – | it has full power, authority, right and capacity to pledge, assign and deliver the Quota, as herein provided; |
| – | the execution and delivery of this Pledge Agreement by the Pledgor and the fulfillment of or compliance with the terms and conditions of this Pledge Agreement by the Pledgor will not violate, contravene, breach or offend against or result in any default under any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law to which the Pledgor is party or by which the Pledgor is bound or affected; |
| – | it will not grant, bargain, sell, convey, assign, mortgage or grant a security interest in or otherwise deal with the Quota and will not make, create or give any charge, mortgage, pledge, lien, assignment or security interest upon any or all of the Quota until the indebtedness towards the Secured Party is repaid in full or fully settled; |
| – | the Company will consent to and will record and implement any sale, transfer or retention of the Quota completed pursuant to the terms of this Pledge Agreement and in accordance with Clause 5 above. |
| 6.2 | Undertakings |
The Pledgor hereby undertakes that during the subsistence of this Pledge Agreement, as Sole Quotaholder of the Company, it shall act in good faith, and in particular shall not knowingly take any steps nor do anything which would adversely affect the existence of the security interest created hereunder.
| 7. | Termination |
| 7.1 | When the Loan amount as well as any other amount due under the Loan Agreement have been unconditionally and irrevocable paid in full and (i) confirmed in writing by the Secured Party or (ii), lacking such confirmation, delivery by the Pledgor of evidence of the full payment of all amounts due under the Loan Agreement, this Pledge Agreement shall terminate and Pledgor shall be entitled to request discharge of the Pledge from the Quota by providing evidence of such payment in full |
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| 8. | Notices |
| 8.1 | Any notice or demand to be served by one person on another pursuant to this Pledge Agreement shall be served in accordance with the provisions of the Loan Agreement. |
If to the Secured Party :
[ ]
If to the Pledgor :
[ ]
| 9. | Necessary Acts |
| 9.1 | Each party hereto shall perform any further acts and execute and deliver any additional agreements, assignments or documents that may be reasonably necessary to carry out the provisions or to effectuate the purposes of this Pledge Agreement. |
| 10. | Entire Agreement |
| 10.1 | This Pledge Agreement, together with the documents referenced herein, contains all of the agreements of the Parties hereto with respect to the matters contained herein and no prior or contemporaneous agreement or understanding, oral or written, pertaining to any such matters shall be effective for any purpose. No provision of this Pledge Agreement may be amended or added to except by an agreement in writing signed by the Parties hereto or their respective successors in interest and expressly stating that it is an amendment of this Pledge Agreement. |
| 11. | Governing Law and Jurisdiction |
| 11.1 | This Pledge Agreement shall be governed by, interpreted under, and construed and enforced in accordance with Italian law and the Court of Milan shall have exclusive jurisdiction to settle any dispute which may arise from or in connection with it. |
Date: August 30 th , 2017
| /s/ Blue Sphere Corporation | /s/ Helios 3 Italy Bio-Gas 2 L.P | ||
| Blue Sphere Corporation | Helios 3 Italy Bio-Gas 2 L.P |
5
Exhibit 10.3
SUBORDINATION AGREEMENT
This Subordination Agreement (the “ Agreement ”) is entered into on August 30 th , 2017 (the “ Effective Date ”) by and among Bluesphere Italy S.R.L , a private limited liability company organized and existing under the laws of Italy under registration no. MI-2124774, having its registered office at Milan, Corso G. Matteotti 1, 20121 (MI) and established and owned by BSC (“ Borrower ”); Blue Sphere Corporation, a publicly traded company incorporated under the laws of Nevada, USA, with its registered place of business at 301 McCullough Drive, 4th Floor Charlotte, NC 28262 (“ BSC ”); and Helios 3 Italy Bio-Gas 2 L.P, a limited partnership under formation to be organized under the laws of the State of Israel (partnership number of Hakfar Hayarok Street, Ramat Hasharon, Israel (“ Lender ”) by its General Partner, Helios General 3, LTD (515257749).
The Borrower, BSC and the Lender shall be referred to as the “ Parties ” and individually as a “ Party ”.
| WHEREAS |
On August 30 th , 2017, the Lender entered into a Loan Agreement (the “ Loan Agreement ”) for the granting of the Loan (as such term is defined in the Loan Agreement) to the Borrower; and |
| WHEREAS | The Parties wish for any loan granted to the Borrower by BSC and (“ Shareholder Loan ”) to be subordinate in rank to the Loan, subject to the terms contained herein; |
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS :
| 1. | Ranking of Loans; Subordination |
| 1.1. | The Parties hereby agree that any Shareholder Loan shall be subordinate and junior in right of payment to the Loan. For the avoidance of doubt, BSC shall not accept any repayments of any Shareholder Loan prior to the full repayment of the Loan. |
| 1.2. | For so long as the Loan has not been repaid in full, BSC shall not be entitled to take any enforcement action pursuant to any Shareholder Loan, including realization of a relevant pledge, if any, without the prior written consent of the Lender, unless it is paid in accordance with Sections 10.15-10.17 of the Loan Agreement and this Agreement. |
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Notwithstanding the foregoing, BSC agrees that if the Lender consents to the realization of a pledge created pursuant to any Shareholder Loan, the proceeds of the realization of such pledge shall be transferred to the Lender and applied to the discharge of the Loan. Thereafter, the Lender shall transfer any remaining proceeds to BSC to be applied towards the discharge of the Shareholder Loan.
| 1.3. | Subject to Sections 10.15-10.17 of the Loan Agreement, the Parties agree that for so long as the Loan has not been repaid in full, BSC agrees not to assign, transfer, subordinate, or request or accept the payment of all or any part of the Shareholder Loan. |
| 1.4. | In the event of any insolvency or bankruptcy proceedings or any receivership, liquidation, reorganization of the Borrower or any other similar proceedings in connection therewith, BSC hereby agrees that the Loan shall be repaid in full prior to BSC receiving any payment or distribution of any kind or character, whether in cash or property or securities which may be payable or deliverable in any such proceedings in respect of any outstanding amounts pursuant to any Shareholder Loan. |
For the avoidance of doubt, it is clarified that to the extent that any proceeds are received by BSC, such proceeds shall be transferred to the Lender in order for the Loan to be discharged. Thereafter, the Lender shall transfer any remaining proceeds to BSC to be applied towards the discharge of the Shareholder Loan. Without derogating from the foregoing, BSC shall be required to present this Agreement to any liquidator, receiver, trustee or any other officer of the court appointed in connection with any insolvency, bankruptcy proceedings, receivership, liquidation, reorganisation or other similar proceeding.
| 2. | General |
| 2.1. | Any term of this Agreement may be amended and the observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance), only with the written consent of the Parties. |
| 2.2. | The failure of either Party to require performance of any provision of this Agreement shall not be construed as a waiver of such Party’s rights to insist on performance of that same provision, or any other provision, at some other time. No right may be waived except in writing, and signed by the Party entitled to assert the right. The waiver by either Party of any right created by this Agreement in one or more instances shall not be construed as a further continuing waiver of such right or any other right created by this Agreement. |
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| 2.3. | This Agreement shall be governed by and construed in accordance with the laws of the State of Israel without regard to conflicts of laws or the choice of law principles of any jurisdiction and without the need of any party to establish the reasonableness of the relationship between such laws and the subject matter of this Agreement. All disputes, controversies, claims or differences between the Parties arising out of, in relation to or in connection with the Agreement, shall be referred to arbitration upon the request of either Party, before the Arbitrator (as such term is defined in the Loan Agreement). The arbitration shall be conducted in accordance with the Arbitration Law 5728-1968 of the State of Israel and shall be held as promptly as possible in Tel Aviv and at such time as the Arbitrator may determine. |
This Clause constitutes an arbitration agreement of the Parties as defined in the aforesaid Arbitration Law. The Arbitrator shall resolve the dispute within 90 days. All arbitration proceedings shall be conducted in the Hebrew language (unless agreed otherwise by the Parties). The Arbitrator shall not be bound by the rules of evidence nor shall he/she be bound by procedure laws, but he/she shall be bound by substantive law and he/she will give reasons for his/her decision. The Arbitrator shall be entitled to make interim or temporary awards whether mandatory or prohibitive. The decision of the Arbitrator shall constitute an award but shall be subject to appeal in accordance with Section 29B of the Arbitration Law. The costs of the arbitral process, including fees and expenses of the Arbitrator, shall be borne as shall be decided by the Arbitrator.
| 2.4. | All notices or other communications hereunder shall be in writing and shall be given in person, by registered mail (registered international air mail if mailed internationally), by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile transmission (provided that written confirmation of receipt is provided) with a copy by mail, addressed as set forth below: |
| If to Lender: |
| [ ] |
| If to Borrower: |
| [ ] |
| If to BSC: |
| [ ] |
or such other address as any Party may designate to the other in accordance with the aforesaid procedure. All communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile transmission shall be deemed given on the business day following transmission with confirmed answer back, and all notices and other communications sent by registered mail (or registered air mail if the posting is international) shall be deemed given ten (10) days after posting.
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| 2.5. | All communications between the Parties with respect to this Agreement shall be in the English language. |
| 2.6. | Each of the Parties hereto shall perform such further acts and execute such further documents as may reasonably be necessary to carry out and give full effect to the provisions of this Agreement and the intentions of the Parties as reflected thereby. |
IN WITNESS WHEREOF , each of the Parties has caused this Subordination Agreement to be executed as of the day and year first written above.
| /s/ Helios 3 Italy Bio-Gas 2 L.P | /s/ Bluesphere Italy S.r.l | |
| [Lender] | [Borrower] | |
| Helios 3 Italy Bio-Gas 2 L.P | Bluesphere Italy S.r.l | |
| /s/ Blue Sphere Corporation | ||
| Blue Sphere Corporation |
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Exhibit 10.4
Milan, September 4 2017
GUARANTEED PLANT OPERATION MANAGEMENT AGREEMENT
Between
PRONTO VERDE A.G. , a Swiss company duly incorporated and existing under the laws of Switzerland, registered with the Companies Register with identification number CHE – 101.957.390, with registered office in Aurdorf (UR), Bahnhoffplatz, 3 (hereinafter, “PV” ), represented by its legal representative [ ], as chief executive officer of the company;
and
FUTURIS PAPIA S.P.A. , a company duly incorporated and existing under the laws of Italy, registered with the Companies Register of Udine with identification number No. 272982, with registered office in Pavia di Udine (UD), Via Crimea, 57 - Tax Code No. 02593530302 (hereinafter, the “ SPV” ), represented by its legal representative [ ], as director of the company duly empowered for the purpose thereof;
(PV and the SPV are also herein referred to individually as a “ Party” and jointly as the “ Parties” ).
WHEREAS:
| a) | PV has a specific know-how in organizing by activating specialized service providers the full operation (including the supply of oil for the plant’s operation) and maintenance of plants for the production of electricity from vegetal and animal oil; |
| b) | the SPV is an Italian limited liability company controlled indirectly by Bluesphere Corporation (“ Bluesphere” ), a company specializing in the waste-to-energy (W2E) industry; |
| c) | the SPV owns an operative plant for the production of electricity from vegetal oil (hereinafter, the “ Plant” ), located in Pavia di Udine (UD), Via Crimea, n. 57, in a portion of a leased building identified in the Cadastral Register of Udine, parcel 23, sheet 42 (the “ Site ”); |
| d) | the Plant has been built and commissioned prior to 31 st of December 2012; |
| e) | the Plant has been built based on the subsidizing policy then existing of a Feed-in-Tariff (as defined below) valid for 15 (fifteen) years starting from December 14 th , 2011, as provided for under the power purchase agreement in force (hereinafter the “ PPA ”); |
| f) | the Plant is capable of producing up to 995 kw/h of electricity and heat, based on the above Feed-in-Tariff; |
| g) | PV has the appropriate organisational know-how (i) to organize - by introducing and procuring to the SPV contracts with independent external suppliers and service providers of recognised standing - the performance of the services in accordance with Applicable Laws (as defined below) and in compliance with the industry’s and market’s standards consisting - in general - in all operational, preventive, corrective, ordinary and extraordinary maintenance of the Plant, the supply of the vegetal oil and the fuel, necessary for the full and continued operation of the Plant and (ii) to guarantee the agreed Plant EBITDA under this Agreement; |
| h) | PV has introduced to the SPV CCEngineering S.r.l., a limited liability company duly incorporated and existing under the laws of Italy, registered with the Companies Register of Monza e Brianza, VAT number 06924090969, with registered office in Meda (MB), Via Indipendenza, n. 76, that, based on its expertise in operating and servicing plants for the production of electricity from vegetal oil and on its inspection and technical due diligence of the Plant, has accepted to perform Services (as defined below) at the terms and conditions of the agreement attached hereto as ANNEX H ; |
| i) | PV has introduced to the SPV ISG Sviluppo SA, a company duly incorporated and existing under the laws of Switzerland, registered with the Companies’ Register of Canton Grigioni CHE-101.957.390, with registered office in Via S. Gottardo, 180, Roveredo (GR), Switzerland that has accepted to supply to the SPV the vegetal oil necessary for the regular functioning of the Plant at the terms and conditions of the agreement attached hereto as ANNEX I ; |
| j) | this Agreement constitute an Exhibit to the Share Purchase Agreement entered into on June 29, 2017 (as subsequently amended and implemented by the AMENDMENT AGREEMENT on July 12, 2017) regulating the sale by PV (as seller) of the entire corporate capital of the SPV (“ SALE TRANSACTION ”); |
| k) | the consummation of SALE TRANSACTION and the determination of the purchase price agreed in the share purchase agreement under lett. j) have been made relying on the execution and punctual performance by PV of this Agreement. Accordingly, the SALE TRANSACTION would have not been consummated if PV would have not committed to enter into this Agreement with the SPV and the determination of the purchase price for the acquisition of the SPV’s capital has been agreed taking into consideration a component for PV’s remuneration for the performance of this Agreement; |
| l) | in light of recital k) above, PV declares that its services and obligations under this Agreement have been duly and satisfactorily remunerated being included in the agreed purchase price for the SALE TRANSACTION; |
| m) | PV, based on its expertise, agrees to secure the Guaranteed Plant EBITDA, in accordance with the provisions of this Agreement. |
Now, therefore, the Parties hereby agree and stipulate as follow.
| 1. | Recitals, Annexes and Rules of Construction |
| 1.1. | The Recitals and the Annexes to the Agreement constitute an integral, essential and unseverable part hereof. |
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| 1.2. | The following rules of construction shall be applied to this Agreement: |
| 1.2.1. | any reference to the masculine also include the feminine, a reference to the singular includes the plural and vice versa; |
| 1.2.2. | the terms “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, where the context so permits; |
| 1.2.3. | the terms “herein”, “hereof” and “hereunder” and similar word shall be construed to refer to this Agreement in its entirety and not to any specific part thereof, unless the content otherwise requires; |
| 1.2.4. | unless otherwise stated in the context, any reference to a particular recital, part, article, section, paragraph or Annex is to be deemed to refer to such recital, part, article, paragraph, section or Annex to this Agreement; |
| 1.2.5. | unless otherwise stated in the context, any reference to a contract or a document or a requirement or a law is to be considered a reference to it as it is from time to time amended, supplemented or modified; |
| 1.2.6. | any reference contained in this Agreement to a “day” or number of “days” (without the explicit qualification of Business Day) will be interpreted as a reference to a calendar day or number of calendar days. If any action or notice is to be, or may be, taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action or notice will be deferred until the next Business Day. Without prejudice to the foregoing, Article 2963 of the ICC will apply to all computation of terms under this Agreement; |
| 1.2.7. | the language of this Agreement will, in all cases, be construed as a whole, according to its fair meaning and without implying a presumption that the terms hereof should be construed against one Party, as opposed to the others, by reason of the rule of construction that a document is to be construed against the Party that has prepared the same, it being understood and acknowledged that representatives and advisors of each Party have participated in the negotiation and preparation of this Agreement. |
| 2. | Definitions |
For purpose of this Agreement, the following terms, set alphabetically, have the meanings set forth below:
| 2.1. | AEEG: means the Authority for the Electricity, Gas and Water System (Autorità per l’Energia elettrica, il Gas ed il Sistema idrico); |
| 2.2. | Agreement: means this Guaranteed Plant Operation Management Agreement, including all its Annexes, exhibits, schedules, amendments, modifications, renewals and extensions thereto; |
| 2.3. | Annual EBITDA Review Process: means the review process performed at the end of each calendar year for the determination of the annual Plant EBITDA as set forth in Section 6; |
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| 2.4. | Applicable Laws: means the DIAs, the Regulatory Requirements, all Italian and/or European law, including European, national, regional and municipal laws, regulations, decrees (including Ministerial Decree), judgments, decisions, orders, instructions, directives, ordinances (including those concerning environmental, town planning, building, archaeological and landscape matters) and rules, if any, issued by any Authority that may be from time to time applicable; as well as any technical, or any binding decision, prescription, direction and/or requirement of any Authority (including, without limitation, the Grid Code, the resolutions published by the AEEG and the rules issued by the GSE) that may be relevant to the management of the Plant and/or the performance of the obligations of the Parties, as are applicable from time to time during the term of this Agreement; |
| 2.5. | Authority: means any European, national, regional, municipal or other local, judicial, legislative, governmental or administrative authority, having competence under the Applicable Laws, including without limitation, any office, agency, division, department, court or other entity thereof having jurisdiction over the Plant and/or the Parties to this Agreement, including without limitation, the local authorities, the Municipality of Pavia di Udine, the GSE, the AEEG and the grid operator; |
| 2.6. | Business Day: means a day (other than Saturday or Sunday) on which banks are open for general business in Milan; |
| 2.7. | Decree 81/2008: means legislative decree no. 81 of 9 April 2008, as amended and integrated from time to time; |
| 2.8. | DUVRI: means the “Documento Unico di Valutazione dei Rischi Interferenti” regulated by Decree 81/2008; |
| 2.9. | EBITDA: is the accounting-based term meaning - in general terms - earnings before interest, tax, depreciation, and amortization to be calculated on the Plant’s operation results, using generally accepted accounting principles and as specified and detailed in ANNEX 2.9 ; |
| 2.10. | Environment: means any all or any of the following media (alone or in combination): air (including the air within buildings and the air within other natural or man-made structures whether above or below the ground); water (including water under or within land or in drains or sewers); soil and land and any ecological systems and living organisms supported by these media, including man and his property; |
| 2.11. | Environmental Code: means Legislative Decree no. 152 of April 3 rd , 2006, as amended from time to time; |
| 2.12. | Execution Date: means the date of execution of this Agreement by both Parties trough exchange of correspondence; |
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| 2.13. | Expiration Date of the PPA: means December 13, 2026; |
| 2.14. | External Service Providers or ESP : means any external Service provider and/or supplier having an adequate technical know-how, commercial reputation and financial soundness from time to time proposed by PV and accepted by the SPV – such acceptance which cannot be unreasonably withhold - to perform the Services, including but not limited to CC Engineering S.r.l. and ISG Sviluppo SA; |
| 2.15. | Event of Force Majeure: has the meaning given to it in Section 13; |
| 2.16. | Feed in Tariff: means the 0.28 €/KWh full comprehensive feed-in tariff (tariffa onnicomprensiva) granted to the Plant under the Ministerial Decree; |
| 2.17. | Grid Code: means the code for transmission, dispatching, developing and security of the grid (Codice di trasmissione, dispacciamento, sviluppo e sicurezza della rete) issued by Terna S.p.A. in accordance with the Decree of the President of the Council of Ministries dated 11 May 2004, as amended from time to time; |
| 2.18. | GSE: means Gestore dei Servizi Energetici GSE S.p.A.; |
| 2.19. | Guaranteed Plant EBITDA: means the Plant EBITDA which PV guarantees to the SPV for the duration of the Agreement, as set forth in ANNEX 2.19 ; |
| 2.20. | Hazardous Substances: means, collectively, any chemical, substance or material that is or becomes regulated, governed, listed or controlled pursuant to the Applicable Laws, including the Environmental Code, as a toxic substance, hazardous substance, hazardous material, dangerous or hazardous waste, or any similar classification as to which liability is imposed on the basis of potential impact to safety, health or the Environment; |
| 2.21. | ICC: means the Italian Civil Code; |
| 2.22. | Ministerial Decree: means the ministerial decree issued by the Ministry for the Economic Development in agreement with the Ministry for the Environment, the Territory and the Sea on 18 December 2008 entitled “Incentivazione della produzione di energia elettrica da fonti rinnovabili” pursuant to article 2 paragraph 150 of Law no. 244 of December 24 th , 2007, as amended and supplemented and presently in force; |
| 2.23. | Plant: means the plant for the electricity production from vegetal oil located in the Municipality of Pavia di Udine (UD), owned by the SPV; |
| 2.24. | Regulatory Requirements: means all regulatory provisions, instructions, permits and licenses pertaining to the operation and maintenance of the Plant, as may be applicable from time to time, concerning, without limitation, (i) treatment of sewage, (ii) emissions, discharges or releases into the Environment; (iii) the pollution or protection from, or compensation of damage or harm to, the Environment; (iv) noise pollution; (v) occupational or public health and safety; (vi) the use, treatment, storage, disposal, transportation or handling of Hazardous Substances; and (vii) vegetal oil stock requirements under the power purchase agreement; |
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| 2.25. | Security System: means any security system existing at the Plant and Site, such as the security fence and the video surveillance system of the Plant and the Site; |
| 2.26. | Services : means the “all-inclusive” services for the operation and maintenance of the Plant which include without limitation (i) all the activities necessary for the support, management and operation of the Plant, (ii) the supply of Vegetal Oil and diesel fuel, (ii) the supply, installation, operation and maintenance of Security System, (iii) all the activities necessary for the Plant’s continuous monitoring, (iv) all the repairing activities necessary to maintain the Plant in continuous and full operational capacity, (v) all operational, preventive and corrective maintenance services in order to properly operate and maintain the Plant in accordance with Applicable Laws, Technical Specifications, as detailed in the Periodic Maintenance Program, attached hereto as ANNEX 2.26 and (vi) the supply of any consumables and spare parts as well as the life cycle equipment replacement, all the above activities and services as specified in ANNEX 2.26.1 ; |
| 2.27. | Site: means the specific area where the Plant is located, including the interconnection infrastructure area and the tank, as better identified in recital c) above; |
| 2.28. | Technical Specifications: means any technical and commercial documents, including the equipment technical specifications, the equipment hand books and drawings, related to the Plant; |
| 2.29. | Term: has the meaning given to it in Section 7; |
| 2.30. | Vegetal Oil: means the vegetal oil having the characteristics indicated in ANNEX 2.30 . |
| 3. | Scope of the Agreement |
| 3.1. | Pursuant to the terms and conditions of this Agreement, the SPV entrusts to PV, who accepts, the organization and the overall liability of the performance of the Services with the specific aim to ensure achievement of the Guaranteed Plant EBITDA by enabling the SPV to enter into agreements with External Service Providers. |
| 3.2. | PV, with reference to the performance of the Services by the External Service Providers, hereby expressly assumes the commitment and liability to achieve the Guaranteed Plant EBITDA pursuant to the terms and conditions of this Agreement. |
| 3.3. | PV shall cause the External Service Providers to perform the Services using their own organisational structure and any other means necessary at their own risk, properly and diligently and according to industry’s and market’s standards, in timely and diligent compliance with the terms and conditions of this Agreement. |
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| 3.4. | In particular and without limitations, PV shall ensure that the External Service Providers performing the Services, comply with the following: |
| 3.4.1. | the exact, regular and continuous operation of all of the components of the Plant and the Plant itself, in accordance with the Technical Specifications, Applicable Laws and Regulatory Requirements so as to achieve the Guaranteed Plant EBITDA; |
| 3.4.2. | the direct monitoring of the working conditions of the Plant in order to maintain the Plant in an adequate state of preservation for the production and release of electricity into the electrical distribution grid; |
| 3.4.3. | the optimisation and maximisation of the Plant’s energy production; |
| 3.4.4. | the regular functioning of the Plant security and protection system (by guaranteeing the functioning of the remote-control systems and the security systems located on Site); |
| 3.4.5. | the ordinary maintenance of the Site, also by transporting any waste produced to authorised disposal sites; |
| 3.4.6. | the supply of the Vegetal Oil in the quality and quantity required to properly operate the Plant, in accordance with any Applicable Laws and Regulatory Requirements; |
| 3.4.7. | the transfer of equipment, materials and spare parts from the PV’s and/or the External Service Provider’s spare parts warehouse (or anywhere) to the Site and vice versa, as well as the supply of any tools and materials for the correct performance of the Services, including water and electricity; |
| 3.4.8. | the transport for all for the required personnel and staff including, without limitation, auxiliary resources; |
provided that and remaining expressly understood that the Services shall include, without limitation, the activities expressly listed under ANNEX 2.26.1. and ANNEX 2.26. of this Agreement.
| 3.5. | PV confirms and represents that it has performed a full technical due diligence of the Plant and it hereby confirms that the Plant is in full compliance with the Applicable Laws and it is able to achieve the Guaranteed Plant EBITDA. |
| 4. | External Service Providers remunerations |
| 4.1. | The Parties agree and covenant that the agreements to be entered into with the External Service Providers for the performance of the Services shall provide the following: |
| 4.1.1. | The price of the supply of Vegetal Oil (the “ Vegetal Oil Remuneration ”) shall be invoiced by the relevant External Service Provider upon delivery of each Vegetal Oil delivery and paid as follows: |
| a) | at sight for an amount equal to Vegetal Oil Remuneration minus 100,00 €/ton for each ton delivered from time to time; |
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| b) | the balance due, upon payment by PV of an amount equal to the balance due on the Escrow Account (as defined in under Section 8.2). |
| 4.1.2. | The remuneration for the performance of the Services other than Services indicated under Section 4.1.1. shall be invoiced on monthly basis, within the 5 th (fifth) day of the following month and paid at sight. |
| 4.2 | The payments under Section 4.1. (the “ Overall Remuneration ”) shall be the sole payments due to the External Service Providers for all their costs, expenses, risks and Services to be performed and they will not be entitled to any additional payment whatsoever. The Parties agree and accept that the Overall Remuneration is an all-inclusive price for any and all duties and obligations of the External Service Providers for the Services; as such, the Overall Remuneration shall be considered “all-inclusive”. By way of example, but without limitation, the following charges and costs shall be considered included in the Overall Remuneration: |
| a) | supply and use of: (i) Vegetal Oil and diesel fuel and (ii) machinery and equipment necessary for the performance of the Services, including consumables, maintenance charges and any transportation charges; |
| b) | services of specialised and regular personnel required to operate the plant on a daily basis, also on secondment, including any contributions, social security, trade union and insurance costs; |
| c) | adoption of any precautionary measures to prevent accidents, in accordance with Italian laws applicable to the provision of the Services; |
| d) | any other charges whether or not specifically mentioned as necessary to perform the Services; |
| e) | the purchase and prompt replacement of non-functioning components of the Plant with new parts; |
| f) | the disposal of any parts removed from the Plant following a replacement or repair in accordance with the agreement entered into with the relevant External Service Providers; |
| g) | the insurance policies incumbent upon the relevant External Service Providers and the costs for safety compliance under law article 26, paragraph 5, of Decree 81/2008 ; |
| h) | energy consumption at the Site, any services and utilities generally directly or indirectly needed to perform the Services. For clarity sake, the Parties agree that utilities for the operation of the Plant shall be made available at costs and liability of the SPV, with the exclusion of any electricity auto-consumption necessary for the Plant operation. |
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| 4.3. | The provisions of Articles 1660, 1661 and 1664 of the ICC shall not be applicable to the agreements regarding the performance of the Services, as far as permitted by the Applicable Law. |
| 4.4. | The External Service Providers shall be entitled to suspend performance of their obligations under the relevant contract pursuant to Section 1460 of the ICC should the SPV fails to comply with its obligations. For the first breach during a year, the suspension will be triggered after 30 days of non-cured breach from the maturity date and upon previously sending to the SPV of a written suspension notice (except that for this provision will be applicable only after the first six months of validity of each relevant agreement); for any following breach occurring during the same year the suspension will be triggered immediately and without any notice. The suspension will remain in place unless and until satisfactory fulfilment of relevant obligation by the SPV. The External Service Providers action shall be without prejudice to their entitlement to late payment interest pursuant to Applicable Laws and/ or to termination under applicable contract provisions. |
| 4.5. | Without prejudice to any other right of set-off the SPV may have, the SPV may withhold from any payment due to any External Service Provider any amount as the SPV deems necessary in the following circumstances: |
| a) | if a dispute exists as to the accuracy or completeness of any request for payment of the External Service Providers; |
| b) | failure by PV to provide security or insurance certificates in compliance with this Agreement; |
| c) | any overpayments by the SPV in a previous payment; |
| d) | termination of the relevant External Service Provider agreements due to External Service Provider default; and/or |
| e) | any other reason provided for by the relevant External Service Provider agreement and/or as provided for under Applicable Laws entitling the SPV to withhold payment. |
| 4.6. | The SPV is entitled to deduct and set aside from the payment of the invoices issued concerning the Vegetal Oil Remuneration during the first three-months following the execution of the agreement an amount equal to the VAT accrued on each invoice issued up to the maximum amount of Euro 40,000.00 (forty thousand/00) (the “ Start-Up Amount ”). The SPV shall pay the aggregate Start-Up Amount to the relevant External Service Provider/PV in one payment 100 (one hundred) days after the execution of the relevant agreement. |
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| 5. | PV’s Obligations |
| 5.1. | PV warrants that the Plant shall meet the Guaranteed Plant EBITDA, and PV guarantees that the External Service Providers shall have no right to claim for additional charges and remuneration exceeding the Overall Remuneration. If the Guaranteed Plant EBITDA is not reached, PV undertakes to pay to the SPV within 10 (ten) Business Day an amount equal to the missing Guaranteed Plant EBITDA and any further damages directly and/or indirectly suffered by the SPV. |
| 5.2. | PV warrants and undertakes to cause the Plant to be operated in accordance with the best practices, in a prudent manner, in full compliance with the Technical Specifications and the Applicable Laws. |
| 5.3. | The representatives of the SPV shall, on every visit to the Site, comply with the safety regulations and notify PV and the relevant External Service Provider by e-mail of their intention to visit the Site with at least 24 hours prior notice. |
| 5.4. | During the term of the Agreement, PV will provide and cause to be provided to the SPV with all data and materials of the Plant, including without limitation, login credential and data necessary to access the HMI system of the Plant. |
| 5.5. | In addition, and subject to Section 5.3 above, the SPV, through its representatives and advisors, shall be entitled to perform the supervision of the Plant from time to time at SPV’s sole discretion with at least 24 hours prior notice, provided that such supervisory activity shall not delay or obstruct the regular operation of the Plant. |
| 5.6. | PV agrees to comply, and shall cause each person admitted by PV and/or by the External Service Providers on the Site, to comply with Applicable Laws in matters of health and safety in connection with the performance of the Agreement, including provisions of Decree 81/2008 (as amended and supplemented). |
| 5.7. | PV agrees and undertakes to, and cause the External Service Providers to, (i) comply with all legal, tax, employment and social security provisions with respect to the Services, (ii) have the employees assigned to the contracted activities, properly contracted and enrolled in social security, (iii) be current in payment of the corresponding salaries, (iv) pay indemnifications and benefits and (v) be current in satisfaction of their social security obligations as well as any kind of monetary compensation arising from the existing employment relationship. |
| 5.8. | Without prejudice to other provisions set forth in this Agreement, PV undertakes to assist and cause the External Service Providers to assist the SPV in its relations with the Authorities and other competent public or private authorities, providing the necessary support and information concerning the Plant, provided that all costs, risks and liabilities concerning the relations with the Authorities shall be exclusively borne by the SPV. |
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| 5.9. | PV shall perform and cause the External Service Providers to perform the Services ensuring the safety and health of the workers at the worksites. In particular, PV shall adopt maintain and supervise and cause the External Service Providers to adopt, maintain and supervise the application of adequate procedures and measures required to ensure the health and safety of all the persons present on the Site (including its employees and those of its subcontractors) and to implement the provisions of, but not limited to, the Decree 81/2008. In particular, PV declares and undertakes to cause the External Service Providers to declare to have full knowledge of the health and safety plan (DUVRI) attached as ANNEX 4.2.G , and undertakes to comply and cause the External Service Providers to comply with its provisions, where applicable, and to integrate the health and safety measures provided under such DUVRI where required, from time to time, on the basis of the specific activities to be performed at Site. |
| 5.10. | PV shall cause the External Service Providers to perform the planned ordinary and corrective maintenance under this Agreement as detailed under ANNEX 2.26 to the same, giving advance notice to the SPV. PV, within a maximum period of 7 (seven) Business Days from the completion of any corrective maintenance intervention, shall cause the External Service Providers to provide the SPV with the relevant service report, including: |
| 5.10.1. | date and time of the maintenance (or the incident in case of corrective maintenance); |
| 5.10.2. | description of the intervention (including list of equipment repaired and/or replaced, mentioning among others the serial numbers); |
| 5.10.3. | date and time of repair and, if necessary, of service reboot. |
| 5.11. | Every month starting from the Execution Date, and within 7 (seven) days from the last calendar day of each month, PV shall prepare and deliver to the SPV a monthly report (the “ Monthly Operation Report ” or “ MOP ”) containing a summary of the activities performed during the previous month which shall include at least the following information: |
| 5.11.1. | overall Plant performance (including but not limited to Monthly Guaranteed Plant EBITDA); |
| 5.11.2. | an analysis of Plant output and performances including comparisons with previous periods and corresponding period of the preceding years of operation; |
| 5.11.3. | Plant and monitoring system shut down periods and related reasons; |
| 5.11.4. | a summary of inspections, repairs, maintenance and replacement of parts for the Plant overall; |
| 5.11.5. | operation and maintenance activities performed at the Plant; |
| 5.11.6. | servicing performed (detection and management of any power losses); |
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| 5.11.7. | any failures in the measurement systems; |
| 5.11.8. | spare parts utilised; |
| 5.11.9. | claims solved and claims made; |
| 5.11.10. | comments and recommendations for the Plant operation. |
| 5.12. | The MOP shall also contain the schedule of maintenance servicing, including any Plant shut down planned for maintenance activities, to be performed in the subsequent month period. The schedule of the maintenance shutdown as indicated under ANNEX 2.26 cannot be modified without the prior written consent of the SPV. PV acknowledges and shall cause the External Service Providers to acknowledge that any maintenance shutdown must be preferably performed keeping to a minimum any decrease in the production of electricity. |
| 5.13. | At the end of each calendar year, PV shall submit to the SPV an annual report as soon as available, and in any event within January 30 th of each year (the “ Yearly Operation Report ” or “ YOR ”). The YOR shall contain a brief summary of the Services performed during the relevant year, the Plant yearly operational data and a section including recommendations for improvements or upgrades to the Plant including a cost-benefit analysis. |
| 5.14. | Upon occurrence of environmental and/or health and safety related incidents, PV shall deliver to the SPV, or cause the relevant External Service Provider to deliver, a specific report within 3 (three) Business Days following the date when the event occurred. The report shall include details on any consequences to the Plant, to the environment, to any person or, in general, to any third parties. |
| 5.15. | PV and the External Service Providers shall be jointly responsible for all injuries and damage to individuals or property that may occur as a result of their fault or negligence or that of any of their subcontractors, as the case may be, in connection with the performance of the Services. |
| 5.16. | PV represents and warrants that the External Service Providers are professionally and technically qualified for the performance of the Services. |
| 5.17. | During the term of this Agreement, PV shall cause the External Service Providers to perform the Services with sufficient and qualified manpower to ensure the proper and on-going operation of the Plant as per the terms and conditions of this Agreement. |
| 5.18. | PV, starting from the Execution Date, shall prepare and deliver to the SPV a weekly report specifying the quantity and quality of Vegetal Oil supplied. |
| 5.19. | To dispel any doubt, PV and the External Service Providers shall bear the sole and complete responsibility for full compliance with any and all Applicable Laws and Regulatory Requirements pertaining to the provision of the Services. PV shall promptly inform the SPV of the coming into force of new Applicable Laws triggering the necessity to perform any specific modification, works and/or request any further authorization in order to continue the operation of the Plant. In the event that the performance of works or addition to the Plant is required, PV shall submit to the SPV at least two offers from reputable companies. The SPV shall promptly cause the performance of the works at its own costs and expenses in order to enable PV and the External Service Providers to continue the regular operation of the Plant. |
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| 6. | EBITDA Review Process |
| 6.1. | Quarterly EBITDA review |
| 6.1.1. | The SPV, no later than 3 (three) days following the end of each calendar quarter, shall deliver to PV the Plant’s financial situation of the preceding quarter, and a report showing the calculation of the Plant EBITDA and the Overall Remuneration during the relevant quarter, made according to ANNEX 2.9 (hereinafter, the “ Quarterly EBITDA Report” ). PV shall review the Quarterly EBITDA Report and request to the SPV – within 3 (three) days from receipt of the Quarterly EBITDA Report – the rectification of the calculation made exclusively for any evident miscalculation it believes existent in it. |
| 6.1.2. | If the Quarterly Plant EBITDA indicated in the Quarterly EBITDA Report (as eventually modified pursuant to PV’s rectification request), is lower than the Quarterly Guaranteed Plant EBITDA specified in ANNEX 2.19 , PV shall, within 10 (ten) days from the day of receipt of the Quarterly EBITDA Report, pay to the SPV a sum equal to the missing amount of Quarterly Guaranteed Plant EBITDA. |
| 6.1.3. | Failing PV to perform the above payment as indicated in the prescribed term, the SPV is entitled to request and obtain the payment of the missing amount of the Quarterly Guaranteed Plant EBITDA from the Escrow Account. |
| 6.1.4. | Should the SPV utilize the funds deposited in the Escrow Account to cover the missing Quarterly Guaranteed Plant EBITDA, PV shall be obliged to pay into the Escrow Account within 15 (fifteen) days from the use of the Escrow Account funds, an amount equal to the amount paid to the SPV from the Escrow Account. |
| 6.2. | Yearly EBITDA review |
| 6.2.1. | The achievement of the Guaranteed Plant EBITDA specified in ANNEX 2.19. shall be subject to the annual review process specified in the following paragraphs of this Section 6.2. |
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| 6.2.2. | The SPV, no later than 90 (ninety) Business Days following the end of each calendar year, shall deliver to PV the Plant’s financial statements of the preceding year, audited by an auditor appointed by the SPV, and a report showing the calculation of the Plant EBITDA and the Overall Remuneration, made according to ANNEX 2.9 (hereinafter, the “ Yearly EBITDA Report ”). PV shall review the EBITDA Report prepared by the SPV, and shall have the right to contest, if it is the case, the results presented in the Yearly EBITDA Report according to the procedure indicated in the following paragraphs of this Section. |
| 6.2.3. | PV shall review the results of operation of the Plant as presented in the Yearly EBITDA Report and no later than 15 (fifteen) days from receipt of the Yearly EBITDA Report, PV shall: |
| i. | either approve the Yearly EBITDA Report, or |
| ii. | send to the SPV a written report and explanations detailing the amounts to be excluded from, or added to the Plant EBITDA, if any (hereinafter the “ PV Report ”). |
| 6.2.4. | In the event that no communication is received from PV by the SPV within the above deadline, the Yearly EBITDA Report shall be considered approved and the Plant EBITDA calculation contained therein shall be binding for the Parties. |
| 6.2.5. | In the event that the SPV does not agree with the conclusion of the PV Report sent pursuant Section 6.2.3 letter (ii), the Parties shall meet within 10 (ten) days from the receipt by the SPV of the PV Report. If the Parties are unable to agree on the amount of the Plant EBITDA and the expenses to be included or excluded thereof within 7 (seven) days from the first meeting, an independent and certified public accountant not having any relationship with the Parties but chosen by the same amongst the first four accounting firms (or, failing by the Parties to reach an agreement, by the President of the “Ordine dei Commercialisti” of Milan) shall be appointed pursuant to Section 1349 of the ICC as a ruler, taking a decision on the basis of its equitable determination (“equo apprezzamento”) being excluded the possibility to decide on mere discretion (“mero arbitrio”) (hereinafter, the “ Ruler” ) to quantify the amount of the Plant EBITDA, based on the guidelines specified under this Agreement. The Ruler’s decision shall be in writing and in English language and it shall be communicated to each Party within 15 (fifteen) Business Days following his nomination. The Ruler’s decision shall be final and binding on the Parties. The Parties shall bear the costs of the Ruler on a 50/50 basis, unless otherwise stated by the Ruler. |
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| 6.2.6. | In the event that the Plant EBITDA indicated in the Yearly EBITDA Report and agreed between the Parties, or as quantified by the Ruler, is: |
| (i) | lower than the Guaranteed Plant EBITDA specified in ANNEX 2.19 , and such discrepancy is due and attributable to the PV failure to comply with the obligations assumed under this Agreement, PV shall, within 60 (sixty) days following the date of the final quantification of the Plant EBITDA, pay to the SPV a sum equal to the missing amount of Guaranteed Plant EBITDA; |
| (ii) | higher than the Guaranteed Plant EBITDA specified in ANNEX 2.19 (the “ Yearly Positive Difference” ), the SPV shall, within 60 (sixty) days following the date of final quantification of the Plant EBITDA, pay to PV a sum equal to 90% (ninety per cent) of the Yearly Positive Difference. |
| 6.3. | For clarity sake, payments of all operational costs, including all those detailed in Section 4.1 above are included in the Overall Remuneration, with the only exception of costs of the insurance policies, including those covering theft, machinery breakdown and business interruption, that on the overall can not be higher than Euro 20,000.00 and shall be deducted from the Plant Guaranteed EBITDA. |
| 7. | Term - Right of withdrawal and termination |
| 7.1. | This Agreement shall come into effect on the Execution Date and, unless otherwise provided for in this Agreement, it shall expire at the Expiration Date of the Power Purchase Agreement (hereinafter, the “ Term ”). |
| 7.2. | The SPV may withdraw at any time, and at its sole discretion, from this Agreement by sending a written notice to PV, at least 6 (six) months in advance. The Parties agree that a withdrawal clause be inserted also in the agreements entered into with the External Service Providers. |
| 7.3. | In the event the SPV exercise the withdrawal from this Agreement pursuant to Section 7.2, it shall have the right to withdraw from the agreements with the External Service Providers with the same advance notice. Should the SPV terminate this Agreement because of fault of PV pursuant to Section 7.10, the SPV shall have the right to immediately withdraw from the agreement with the External Service Providers. |
| 7.4. | The agreements with the External Service Providers shall provide that - in the event of exercise of the withdrawal right - the relevant External Service Provider shall be entitled to (i) payment of the amounts of the outstanding invoices as well as the value of the activities performed in compliance with the relevant agreement prior to withdrawal and not yet included in the invoices; (ii) all demobilization and financial costs incurred and/or to be incurred for the performance of the Services – if any - until such a date. |
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| 7.5. | Without prejudice to the SPV’s right to withdraw at any time and at its discretion under Section 7.2 above, each Party is entitled to withdraw from this Agreement in the event: |
| 7.5.1. | the other Party (i) becomes insolvent or generally not able to pay its debts as they become due, or (ii) admits in writing its inability to pay its debts generally or makes a general assignment for the benefit of its creditors; or |
| 7.5.2. | the other Party files a request for a moratorium or an out-of-court settlement with creditors, or files a request to commence - with respect to itself - a voluntary bankruptcy or analogous insolvency case or proceeding, or if the defaulting Party is subject of seizure or intervention, or if its shares or interests are expropriated, or if any other similar action or proceeding, whether judicial or private, is commenced with analogous effects, or another circumstance occurs that reveals that the other Party is or is likely to become insolvent; or |
| 7.5.3. | an encumbrancer takes possession of a substantial part of the other Party’s assets, or any writ of execution, warrant of attachment or similar process is issued, levied or enforced against a substantial part of the other Party’s assets; |
| 7.5.4. | the performance of this Agreement by any Party is prevented for more than 120 (one hundred twenty) consecutive Calendar Days due to the occurrence of a Force Majeure event falling within the coverage of the Insurance. |
| 7.6. | A clause having the same meaning of Section 7.5 above shall be inserted in the agreements with the External Service Providers. |
| 7.7. | In case of withdrawal under Section 7.2 or 7.5 above: |
| 7.7.1. | the SPV will pay the amounts of the outstanding invoices as well as the value of the activities performed in compliance with the relevant agreements with the External Service Providers prior to withdrawal and not yet included in the invoices, provided that the relevant Guaranteed Plant EBITDA is reached. In the event that the relevant Guaranteed Plant EBITDA is not reached, the SPV is entitled to first request and receive the payment of the missing EBITDA amount from the Escrow Account; and |
| 7.7.2. | none of the parties to the agreement shall have any further right, claim and/or action against the other party for any costs, expenses, losses and/or damages suffered as a consequence of the withdrawal, save for those rights, claims and/or actions already exercised, filed and/or started at the date of withdrawal except that PV shall remain liable should the Guaranteed Plant EBITDA not been reached until the termination of the Agreement. |
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| 7.8. | In addition to any other event specified in this Agreement or at law, the SPV may terminate this Agreement pursuant to article 1456 of the ICC upon the occurrence of any of the following events: |
| 7.8.1. | more than 30 (thirty) days delay in sending the MOP, if this delay occurs for at least two consecutive times; |
| 7.8.2. | supply or use of Vegetal Oil not compliant with the technical specification indicated in ANNEX 2.30 or in breach of any Applicable Laws; |
| 7.8.3. | the Plant does not reach the Guaranteed Plant EBITDA for reasons exclusively attributable to PV and/or External Service Providers under this Agreement and PV does not pay to the SPV a sum equal to the missing amount of the Guaranteed Plant EBITDA or in the event of breach of the payment obligation under Section 5.1; |
| 7.8.4. | the Guaranteed Plant EBITDA for 2 (two) consecutive years is not reached, by more than 10% of the Guaranteed Plant EBITDA per each respective year, even though PV has paid to the SPV a sum equal to the missing Guaranteed Plant EBITDA. |
| 7.9. | PV shall cause to insert a clause in the agreements with the External Service Providers granting to the SPV, in addition to any other event specified in said agreement or at law, the right to terminate the agreement pursuant to article 1456 of the ICC upon the occurrence of any of the following events: |
| 7.9.1. | breach of any of the health and safety obligations and duties; |
| 7.9.2. | supply or use of Vegetal Oil not compliant with the technical specification indicated in ANNEX 2.30 or in breach of any Applicable Laws; |
| 7.9.3. | the relevant External Service Provider voluntary interrupts the performance of the Services (or a substantial portion thereof) for a period of more than 15 (fifteen) consecutive days or 30 (thirty) days in any operational year; |
| 7.9.4. | sub-contracting in breach of any applicable provisions under the agreement. |
| 7.10. | In the event of termination of this Agreement for a breach of PV, the SPV shall be entitled to: |
| 7.10.1. | recover from PV any losses and damages incurred by the SPV and any extra costs of completing the Services (including the costs of engaging replacement contractors and suppliers, and all the additional amounts payable to them); and |
| 7.10.2. | without prejudice to compensation of any further damages, a penalty for the termination in an amount of Euro 100,000.00 which can be cashed-in from the Escrow Account. PV hereby acknowledges and confirms that it considers the amount of such penalty fair and reasonable and, for such purposes, PV waives all claims and/or actions which it may have for the reduction of such penalty; and |
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| 7.10.3. | exercise any other remedy provided for under the Agreement and Applicable Laws and take legal action against PV for compensation of any damages suffered. |
| 7.10.4. | transfer to the SPV all guarantee certificates related to the SPV and/or the components of the Plant and |
| 7.10.5. | deliver to the SPV all the spare parts of the Plant equipment and machinery paid by the SPV. |
| 7.11. | PV shall cause to insert a clause in the agreements with the External Service Providers providing that in the event of termination of the agreement for a breach of the External Service Providers, the latter shall exclusively be entitled to the price, if any, for the Services correctly performed in accordance with the relevant agreement. In this event, the SPV shall be entitled to: |
| 7.11.1. | withhold the amount of any damages and/or loss caused by the External Service Provider, recovering from it any losses and damages incurred by the SPV and any extra costs of completing the Services (including the costs of engaging replacement contractors and suppliers, and all the additional amounts payable to them); and |
| 7.11.2. | without prejudice to compensation of any further damages, a penalty for the termination in an amount equal to 20% of the remuneration provided under each agreement entered into with the relevant External Service Provider; and |
| 7.11.3. | appoint a third party to perform the Services not provided; and |
| 7.11.4. | exercise any other remedy provided for under the relevant agreement and Applicable Laws and take legal action against the External Service Provider for compensation of any damages suffered. |
| 7.12. | PV shall cause to insert a clause in the agreements with the External Service Providers providing that, in case of failure of the SPV to pay any amount due as Vegetal Oil Remuneration in compliance with terms and conditions of the relevant agreement with the External Service Providers, the latter shall have the right (i) without prejudice to compensation of any further damages, to ask and obtain for the payment of a penalty for the termination in an amount not exceeding 10% of one year remuneration, that the SPV acknowledges and confirms that it considers fair and reasonable and, for such purposes, waives all claims and/or actions which it may have for the reduction of such penalty; and (ii) to exercise any other remedy provided for under the agreement and Applicable Laws and take legal action against the SPV for compensation of any damages suffered. |
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| 7.13. | In the event of termination of this Agreement and/or the agreements with the External Service Providers, for withdrawal by the SPV pursuant to Sections 7.2. and 7.5., PV and/or the relevant External Service Providers, if so requested by the SPV, shall continue to perform the Services in accordance with this Agreement and/or the agreements with the External Service Providers until their effective replacement with another party and in any case for a period not exceeding 90 (ninety) days from the receipt of the withdrawal notice. |
In consideration of the above, the agreement with the External Service Providers shall contain a clause assuring their maximum cooperation and availability in order to guarantee the continuous and regular operation of the Plant and to facilitate the effective and timely hand over of operations to their successor/s. Without prejudice to the above, should the SPV, during the 90 day-period indicated above request in writing the External Service Provider to leave the Site, the External Service Provider shall abandon the Site within the term set out in the SPV’s request (which in any case shall not be less than 5 (five) Business Days) and provide the SPV with all information, data and documentation pertaining to the operation, maintenance, and treatment of the Plant which might be in its possession as a consequence of the provision of the Services under this Agreement, including - without limitation - any information and data regarding (i) suppliers of Vegetal Oil and other equipment and consumables, (ii) supplier of machinery and spare parts, (iii) engine technicians as well as providing the SPV with a copy of all agreements related to the Plant and its operation.
| 8. | Guarantees |
| 8.1. | Each Party hereby irrevocably undertakes and guarantees to fulfill all its obligations under this Agreement, as from time to time amended, restated, supplemented or otherwise modified by common agreement by the Parties, regardless of the existence of any other security, guarantee or surety given for fulfillment of said obligations. |
| 8.2. | As security for all the obligations under this Agreement and for the performance of the agreements for the supply of Vegetal Oil by External Service Providers, the SPV and PV shall execute at the Effective Date the Escrow Agreement substantially in the form attached hereto under ANNEX 8.2 and PV shall constitute and maintain the Escrow Amount deposited in the Escrow Account in compliance with the terms and conditions provided for in ANNEX 8.2 attached hereto. |
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| 9. | Damage to Property and Injury to Persons |
| 9.1. | Damage to the Plant . Without prejudice to any other Sections of this Agreement, PV shall be jointly and severally liable with the External Service Providers vis-à-vis the SPV for all losses, expenses and damages to the Plant arising out, among others, the following reasons: |
| (i) | defective material or workmanship of in providing the Services; or |
| (ii) | breach of one or more obligations under this Agreement; or |
| (iii) | any fault, negligence or other acts of External Service Providers or respective employees and agents. |
| 9.2. | Third Party Claims . PV shall indemnify (and keep harmless) the SPV against all third-party claims in respect of any loss of or damage to physical property, death or personal injury whenever occurring to the extent caused by any act or omissions of the PV and/or External Service Providers or their respective employees and agents. |
| 9.3. | Accidents . PV shall be shall be jointly and severally liable with External Service Providers for and shall indemnify the SPV against all losses, expenses or claims arising in connection with the death of or injury to any person employed by External Service Providers and/or PV, unless caused by any acts or defaults of the SPV or other contractors engaged by the SPV or by their respective employees or agents. |
| 10. | Indemnification |
| 10.1. | PV (the “ Indemnitor” ) agrees to indemnify and hold harmless the SPV, Bluesphere and their affiliates and respective partners, members, officers, directors, managers, employees, agents and representatives (collectively, the “ Indemnified Parties” ), from and against any loss or expense by reason of physical damage to property or bodily injury, including death, any action, cost, damage, disbursement, expense, liability, loss, deficiency, obligation, including but not limited to, interest or other carrying costs, penalties, reasonable legal, accounting and other professional fees and expenses incurred in the investigation, collection, prosecution and defense of claims, that may be imposed on or otherwise incurred or suffered by the Indemnified Parties, excluding any special, incidental, consequential or punitive damages, except to the extent such damages are recovered by third parties in connection with third party claims that are indemnified under this Agreement (“ Losses ”). |
Indemnification for Losses in accordance with this Section 10.1 shall be limited to a maximum amount of 2,000,000.00 Euro per event, with the exception of Losses incurred due to bodily injury, death and with the exception of Losses resulting from malicious and/or willful actions with respect to which no limitation shall apply.
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| 10.2. | An Indemnified Party shall promptly notify the Indemnitor of any event or occurrence that may give rise to Losses for which such Indemnified Party (a “ Claimant ”) may seek recovery from the Indemnitor pursuant to this Section 10; provided that, if such event or occurrence is a claim or proceeding by a third party (a “ Third Party Claim ”), a Claimant shall give such notice thereof in writing as soon as practicable, but in no event later than 20 (twenty) Business Days following the receipt of notice of the commencement of any action or proceeding. Each such notice shall describe in reasonable detail the basis of the claim for indemnification and, to the extent received, deliver copies of all related notices and documents (including court filings) concerning such claim. The failure to give notice as required by this Section 10 in respect of a Third Party Claim in a timely fashion shall not result in a waiver of any right hereunder except to the extent that the ability of the Indemnitor to defend against such Third Party Claim is actually prejudiced by the failure of the Claimant to give notice in a timely fashion as required by this Section 10.2. |
| 11. | Insurance |
| 11.1. | Without limiting the PV’s obligations, responsibilities and liabilities under this Agreement, from the date of this Agreement until all potential statute of limitation have expired with respect to any PV’s liabilities under this Agreement, PV shall cause the External Service Providers, at their own exclusive cost, provide and maintain in full force the following insurances policies to be executed with leading insurance companies with rating not lower than A- S&P, with the limits and coverage provision not less than the limits and coverage provisions set forth below (the “ ESP Insurances” ): |
| - | Third Party Liability: Euro 2,500,000.00 each and every loss; |
| - | Worker’s Compensation: Euro 2,500,000.00 each person. |
| 11.2. | The ESP Insurances shall not reduce or otherwise affect the PV’s liability hereunder, provided that any payment by above insurance shall be in lieu of any payment due by PV under this Agreement. |
| 11.3. | If the ESP fails to execute and/or maintain in effect any ESP Insurances, the SPV shall be entitled to obtain and maintain in force any of such insurances, provided however that any costs and expenses associated with such insurances shall be promptly reimbursed by PV at SPV’s request and may be deducted from or set-off against any payment otherwise due by the SPV under this Agreement and/or under the agreements with the ESP. The entering and maintaining in force by the SPV of any of such policies on behalf of the ESP shall not limit or reduce for any reason the liabilities of PV under this Agreement and shall not affect or be deemed to be an amendment of any terms hereof. |
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| 11.4. | All costs, expenses, and charges of the ESP Insurances shall be paid by the ESP and/or PV. PV shall also ensure, under its responsibility, that the ESP Insurances are effective and will be maintained in force for the entire duration of this Agreement. |
| 11.5. | PV agrees to deliver copies of the ESP Insurances, of their annual renewal to the SPV at least 7 (seven) calendar days before the date scheduled for the beginning of its activities giving evidence the occurred payment. |
| 11.6. | Without limiting the PV’s obligations, responsibilities and liabilities under this Agreement, the SPV shall - at cost sustained by the SPV but borne by PV up to an overall yearly amount of 20,000.00 Euro – provide and maintain in full force the “All Risks Property” / “Business Interruption” insurance policy with a leading insurance company with the limits and coverage provisions specified in ANNEX 11.6 and with policy conditions substantially the form attached hereto as ANNEX 11.6 . In addition to the “All Risks Property” / “Business Interruption” insurance policy, the SPV shall, at its own costs, provide and maintain in full force the third party liability insurance policy with a leading insurance company and with the limits and coverage provisions indicated in ANNEX 11.6.1 . |
| 11.7. | With regard to the “All Risks Property”/”Business Interruption” insurance policy provided by the SPV, PV undertakes to comply with all the insurance conditions set out thereof. PV shall manage on behalf of the SPV, if so required by the SPV, the “All Risks Property”/ “Business Interruption” insurance claims vis-à-vis the insurance company. If the SPV decides to manage directly the claims towards the insurance companies, it undertakes to manage them in a timely and diligent manner keeping PV always informed. |
| 12. | Confidentiality of Information |
| 12.1. | For the duration of this Agreement and until 5 (five) years following its termination, each Party shall keep all information received from the other Party and marked confidential (hereinafter, the “ Confidential Information” ). |
| 12.2. | The Confidential Information shall not be divulged without both Parties’ written consent given in advance. The Parties may not use the Confidential Information for any purpose other than the purposes set out in this Agreement, except if needed by Bluesphere and/or the SPV and/or their agents and advisors. This provision will survive the termination of the Agreement or the expiry of its Term. The Parties shall uphold the confidentiality of, and shall not use other than for the purposes set out in this Agreement, any Confidential Information related to the Plant, including documents, data, technical, business, financial and/or any other written and or oral information regarding the Plant which was prepared by any of the Parties, except for: |
| 12.2.1 | when the information becomes part of the public domain (and not as a result of the breach of this Agreement); |
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| 12.2.2 | when the information was in the one Party’s possession prior to receiving it from the other Party; |
| 12.2.3 | when the information was received by a third party which is not, to the knowledge of the receiving Party, in breach of an obligation of confidentiality, and is therefore not subject to the limitations of its exposure; |
| 12.2.4 | when the information is requested by any governmental, regulatory, judicial or other such body under applicable legislation, regulations or rules. |
| 12.3. | Each Party shall take reasonable measures to protect Confidential Information. |
| 12.4. | A Party may divulge the Confidential Information to its consultants, technical or commercial consultants, accountants, auditors, counsels, investors, creditors (including the Lender and its advisors), shareholders, prospective buyers and prospective buyers or investors of the shareholders, bankers and subsidiaries (hereinafter, the “ Consultants” ) to the extent it is necessary. A Party transferring Confidential Information to Consultants must inform them of its confidential nature and guarantee their commitment to keeping such information confidential. None of the Parties including their consultants, representatives, sub-contractors or any of their related parties will use or disclose any of the Confidential Information obtained from the other Party during the period of this Agreement for a purpose other than the operation of the Plant. Such Confidential Information will not be held as confidential if it were proven to be publicly available prior to it being transferred to the Consultants. |
| 13. | Force Majeure |
| 13.1. | Failure of a Party to execute, or delay in a Party’s performance of this Agreement or part thereof, shall not constitute a breach of this Agreement if caused by an Event of Force Majeure. |
| 13.2. | An “Event of Force Majeure” means extraordinary and not foreseeable events beyond the reasonable control of either Party, which constitutes exceptional and unforeseeable circumstances, preventing in full or in part the affected Party to perform its obligations under the Agreement, despite the exercise of diligent efforts, such Party was unable to prevent, limit or minimize. |
| 13.3. | Pursuant to all of the above, the following events, shall constitute an Event of Force Majeure, so long as such events are the direct cause of failure to perform or delay in performance: |
| (i) | as can be proven and as stated above (for avoidance of doubt any events which is not specifically set forth as Force Majeure event cannot be deemed as a Force Majeure event: acts of God; acts of public enemies; |
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| (ii) | orders or restraints of any kind of the government of the Italian Republic or any of its departments, agencies, political subdivisions or officials, or any civil, administrative or military authority; |
| (iii) | earthquakes; hurricanes; tornadoes; floods; explosions; |
| (iv) | partial or entire failure of national or local energy transmission utilities and grids. |
| 13.4. | A Party affected by an Event of Force Majeure shall inform the other Party in writing within 2 (two) days of such occurrence, and in addition shall provide supporting documentation and evidence regarding the circumstances which constitute the Event of Force Majeure, specifying why under these circumstances the implementation, or the timely implementation, of a contractual obligation was not possible, and proving that such failure or delay were the direct result of those circumstances. |
| 13.5. | The Party affected by an Event of Force Majeure agrees to take all appropriate measures to mitigate the negative consequences caused by the Event of Force Majeure on the implementation of the Agreement. |
| 14. | Representations and warranties of the Parties |
| 14.1. | Without prejudice to any other warranty or undertaking provided under any other provisions of this Agreement, the PV represents and warrants also on behalf of ESP, among others, the following: |
| 14.1.1. | to be in possession of all the insurance policies and the permits required for the performance of Services; |
| 14.1.2 | to have an appropriate professional organization, technically qualified personnel, Vegetal Oil supply agreements, machinery and equipment and anything else needed for the performance of the Services; |
| 14.1.3 | to have full knowledge of the information provided by the SPV, of the contractual documentation being part of or referred to in this Agreement (including the Technical Specifications), and that such information and documents are sufficient and appropriate to identify the nature and characteristics of the Services to be performed; |
| 14.1.4 | every aspect of the performance of the Services shall comply with the Agreement, Applicable Laws, Technical Specifications, and in any case shall be entirely fit for the use for which they are performed, as specified in the Agreement or as may be reasonably inferred by a competent contractor having experience in the provision of services of the nature, scope, similar value and complexity as the Services; |
| 14.1.5 | it is informed of the technical and functional features of the Plant and is able to perform the Services in accordance with the common industrial standards currently on the market; |
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| 14.1.6 | the spare parts shall be compliant with the Plant, Technical Specifications, design and operational and maintenance requirements; |
| 14.1.7 | it is fully aware of all the conditions and requirements necessary under the Applicable Laws, including without limitation the Ministerial Decree, that the Plant must meet to receive the Feed in Tariff and it is able to perform the Services necessary to ensure that the Plant satisfies and maintains these conditions and requirements for the entire duration of this Agreement; |
| 14.1.8 | it is fully aware to be the sole responsible vis-à-vis the SPV about the supply of the Services in compliance with the common industry’s practice and market’s standard, therefore, assuming any responsibility vis-à-vis the SPV for the supply of the Services; |
| 14.1.9 | the Overall Remuneration is a fair and proper consideration for all the activities that are necessary for it to properly perform all the Services under this Agreement and, therefore, the performance of such activities, will not give rise to requests for additional payments or increase of the Overall Remuneration; |
| 14.2. | Without prejudice to any other warranty or undertaking provided under any other provisions of this Agreement, each Party represents and warrants to the other, among others, the following: |
| 14.2.1. | it is a company duly incorporated and validly existing under the laws of its constitution; |
| 14.2.2. | this Agreement will constitute legally binding, valid and enforceable obligations enforceable against it in accordance with its terms; |
| 14.2.3. | it has the corporate power to enter into and perform this Agreement and the transactions contemplated by it; |
| 14.2.4. | there has not been and, to the best of its knowledge, there is no material adverse change in its business or financial condition, that could affect its ability to perform its obligations under this Agreement; |
| 14.2.5. | no material litigation, arbitration or proceedings before any court, arbitral body or agency have been started or are pending or threatened against it, nor any other issue has been raised that, should be successful, could impair the performance of this Agreement and the transactions contemplated by it; |
| 14.2.6. | it is not insolvent nor in a situation under articles 2446 or 2447 of the ICC, as applicable; |
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| 14.2.7. | none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated, or compliance with the terms and provisions hereof and thereof shall conflict with or result in a breach of, or require any consent under, its by-laws or any Applicable Laws or regulation, or any order, writ, injunction or decree of any court, or any agreement or instrument to which it is a party or by which it is bound or to which it is subject, or constitute a default under any such agreement or instrument; |
| 14.2.8. | it has all the required financial resources to fully comply with the obligations assumed under this Agreement. |
| 14.3. | PV also on behalf of ESP will be responsible and will act in accordance with the Applicable Laws and the Technical Specifications in relation to the performance of the Services, and will keep the SPV harmless against any and all the claims and/or requests which may be raised by its employees and/or consultants and/or any third parties related to or arising out in connection with the performance of this Agreement and the performance of the Services, including those regarding payment of consideration or social contributions payable to subcontractors or their employees. |
| 14.4. | PV also on behalf of ESP shall comply with all permits, authorisations and approvals issued by any Authority under Applicable Laws in relation to the operation of the Plant. |
| 14.5. | PV also on behalf of ESP shall manage and handle, at its own costs and expenses and for the benefit of the SPV, all the product and performance warranties in respect of all components of the Plant, if any during the period of validity of this Agreement. |
| 14.6. | PV will cooperate with the SPV by providing its assistance in the management of any request from any Authority (including GSE and Enel) relating to the Services or in the preparation of any communication or notice to be sent by the SPV to any Authority in accordance with the Applicable Laws, so that the SPV can regularly comply with the conditions set forth in the permits, and with any obligations set forth in the Applicable Laws, as well as possible requests made by the Authority. |
| 14.7. | PV shall be responsible jointly and severally liable with the EPS for obtaining and maintaining any permit necessary for the performance the Services in compliance with the Applicable Laws. |
| 15. | Financing |
| 15.1. | PV acknowledges and irrevocably accepts that any credits of the SPV deriving from this Agreement and the insurances issued under the terms of this Agreement may be assigned or pledged in favour of any credit institution or lender that have granted a credit facility to the SPV or to the shareholder of the SPV (the “ Credit Facility ”) as guarantee of the credits and/or in any event of the exact fulfilment of all the obligations deriving from and/or in any way connected with the finance documents governing the Credit Facility. |
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| 15.2. | In the event that a Credit Facility has been granted, PV: |
| 15.2.1 | undertakes to use its best efforts to comply with any reasonable request to modify this Agreement which may be submitted by the lender; and |
| 15.2.2 | acknowledges and accepts that the lender and its advisors may have the right to access the Site, or any other place where the materials, and/or equipment are located, stored or are being worked on, in order to inspect the performance of the Services contemplated under this Agreement. |
| 16. | Assignment |
| 16.1. | The rights and obligations of PV pursuant to this Agreement shall not be assigned to a third party without the SPV’s prior written consent. |
| 16.2. | It remains understood that the amounts or credits due to PV by the SPV under this Agreement may be assigned, transferred or pledged at PV’s discretion, with prior written notice to the SPV. |
| 17. | Intellectual Property Rights |
| 17.1. | The PV warrants and indemnifies the SPV against any and all claims by owners or licensors of patents, trademarks, licenses, drawings, models or other intellectual property relating to any technical and/or executive aspect on the performance of the Services. |
| 17.2. | In any event, the PV shall bear all the burdens and responsibilities associated to the obtainment of the rights to these patents, trademarks, licenses, designs, models and other copyrighted material, to the applicable extent. |
| 17.3. | The SPV will not be involved in the relationship between the PV and the owners of (or who holds a license on) such rights and any disputes between them. |
| 18. | Miscellaneous |
| 18.1. | This Agreement constitutes the entire contract between the Parties in relation to the subject matter raised therein, and therefore entirely replaces and resolves all prior or separate stipulation, written or oral, in that regard. |
| 18.2. | Any invalidity, nullity or unenforceability of any provision referred to the Agreement will not affect the validity and enforceability of the remaining provisions contained therein, except as provided in Article 1419 of the ICC. In any case, the Parties shall do everything possible to negotiate in good faith alternative provisions that have the same effect. |
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| 18.3. | All remedies specified in this Agreement or otherwise available shall be cumulative and in addition to any other remedy provided hereunder or now or hereafter available at law or in equity. No waiver with respect to any breach or default hereunder shall be deemed to be a waiver with respect to any subsequent breach or default, whether of similar or different nature; nor shall the failure of a Party to insist upon the performance by the other of any term hereof be deemed a waiver of the rights of the first-mentioned Party with respect thereto. |
| 18.4. | Each Party shall equally bear any costs connected with the signing of this Agreement, including stamps, copies, registration fees (which will apply only in case of use). |
| 18.5. | Notices |
All notices and other communications required or desired to be communicated by one Party to the other shall be in writing and shall be deemed given when sent by email, facsimile, or manual delivery or 10 (ten) days after mailing by registered airmail to the respective addresses set forth below or to such other addresses as may be designated by a written notice to the other Party, provided, however, that any notice of change of address shall be effective only upon receipt:
To PV :
Pronto-Verde AG
[ ]
To SPV :
Futuris Papia S.p.A.
[ ]
With copy to Bluesphere Italy S.r.l.
[ ]
| 19. | Conflict Resolution and Jurisdiction |
| 19.1. | This Agreement is governed by Italian Law with the exclusion of any conflict of laws. |
| 19.2. | The Parties shall endeavour to amicably settle any possible dispute arising from, or in relation to, the interpretation, validity, execution and termination of this Agreement by direct negotiations held in good faith for a term not exceeding 30 (thirty) calendar days from the first notice regarding the dispute sent in writing. Should the Parties be unsuccessful in resolving their dispute within such 30 (thirty) days’ period, the dispute shall be brought before the exclusive jurisdiction of the Court of Milan. |
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List of Annexes
ANNEX H – Services Agreement
ANNEX I – Oil Supply Agreement
ANNEX 2.9. - Principles for EBITDA Calculation
ANNEX 2.19. - Guaranteed Plant EBITDA
ANNEX 2.26. - Periodic Maintenance Programme
ANNEX 2.26.1. - Services
ANNEX 2.30. - Vegetal Oil characteristics
ANNEX 8.2. – Escrow Agreement
ANNEX 11.6. - All Risks Property / Business Interruption insurance policy conditions
ANNEX 11.6.1. - Third party liability insurance policy conditions
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***
If you agree on the above terms and conditions, please return us copy of this Agreement undersigned as a sign of acceptance by your authorised representative.
Yours faithfully,
FUTURIS PAPIA S.p.A.
| /s/ FUTURIS PAPIA S.p.A. |
* * *
For full and unconditional acceptance thereof.
Yours faithfully,
PRONTO VERDE AG
| /s/ PRONTO VERDE AG |
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