Loan Agreement
Exhibit
10.1
Confidential
treatment has been requested for portions of this exhibit and such portions have
been filed separately with the Commission. The copy filed herewith omits the
information for which confidential treatment has been requested and replaces it
with [***].
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between
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SES
SOCIETE
D’ENERGIE
SOLAIRE
SA
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Xxxxx
xx Xxxxx-Xxxxxx 000
0000
Xxxx-xxx-Xxxxxx
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Joint
engagement :
(hereinafter
the “debtors”)
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In
the event of a plurality of debtors, the latter shall be jointly liable,
pursuant to Art. 143seq CO.
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and
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Banque
Cantonale de Genève
(hereinafter
the “bank”)
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Xxxx
xx x’Xxx 00, 0000 Xxxxxx
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Object :
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Financing
of the construction of a photovoltaic power plant (hereinafter the “solar
plant”) on the roof top of the [***] Shopping Mall, prior to purchase of
the solar plant by [***] subsequent to the operation starting date,
expected by June 30, 2010.
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Limit :
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CHF
3'000'000.00 (three million Swiss francs)
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Use :
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On current
account :
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N° :
5017.04.49 [***]
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and/or
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for the opening of letter of
credits :
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The
bank reserves all rights to refuse issuance of certain warranties and/or
cautions and letter of credits.
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Interest :
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Current account :
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5.750%
per year for the letter of credits, variable at any time, notably subject
to the conditions of the market.
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Special
interest rate will be charged on any amount in excess of the limit of the
loan in current account. This interest rate is regularly published in the
brochure “Tariffs and Services Conditions” of the bank ; currently,
it amounts to
9.500%.
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Confidential
treatment has been requested for portions of this exhibit and such portions have
been filed separately with the Commission. The copy filed herewith omits the
information for which confidential treatment has been requested and replaces it
with [***].
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Commission :
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Current account :
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0.250%
per quarter, calculated on the highest debit balance during the given
period.
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Issuance of letters of
credit :
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The
bank will charge a commission and costs on issuance of letter of
credits.
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Billing :
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The
interests, commissions and costs will be calculated and included in the
current account each quarter.
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Set-up
fees :
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CHF
10'000.00, which will be deducted from account N°5017.04.49 during the
first closing
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Maturity:
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June
30, 2010, date on which the financing will have been entirely repaid,
being understood that the loan can be accelerated at any time by one or
the other of the parties, according to the general conditions of the
bank.
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Security :
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Simple
security from [***] in the amount of up to CHF 3'000'000.00 in
capital, in accordance with the instrument to be provided to the
bank.
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Assignment
by the debtor(s) to the bank of the sale proceeds of the financed solar
plant, pursuant to the assignment agreement attached
herewith.
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Assignment
by the debtor(s) to the bank of the proceeds resulting from the contract
to be entered into with [***] relating to the sale of the electricity,
pursuant to the assignment agreement attached herewith.
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Assignment
by the debtor(s) to the bank of the proceeds of the civil liability
insurance policy and fire flood insurance policy (natural disasters, riots
and acts of malevolence), pursuant to the assignment agreement attached
herewith.
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Assignment
by the debtor(s) to the bank of the proceeds of the sale of the industrial
building located in xxxxxx xx Xxxxxx-xxx-Xxxxxx, 0000 Xxxx-xxx-Xxxxxx,
pursuant to the assignment agreement attached
herewith.
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Confidential
treatment has been requested for portions of this exhibit and such portions have
been filed separately with the Commission. The copy filed herewith omits the
information for which confidential treatment has been requested and replaces it
with [***].
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Other
conditions :
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The
amount of this credit is determined on the basis of the financial plan
provided to the bank, based upon a global cost of the project in the
amount of CHF [***].
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The
amounts for which the financing is not provided for by the bank
are as follows:
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CHF [***] of works performed by Xxxxxx X.X.,
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CHF 250'000.00 of beneficiary margin of the debtor(s).
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Payment
of the two amounts indicated above is postponed until the maturity date of
the current financing.
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The
repayment of the EUR [***] corresponding to the advance of 5% paid by the
debtor(s) at the order of the photovoltaic modules is not due until the
sale of the solar plant to [***].
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Should
the project undergo any technical or financial modifications, the
debtor(s) must inform the bank at the earliest date
possible.
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During
the construction, the solar plant shall be sufficiently and constantly
insured against fire and flood damages by a company having its head office
in Switzerland. The insurance shall also cover civil liability. The
debtor(s) commit themselves to provide the bank with a copy of the
insurance policy covering the construction site.
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Any
modification of the contract or delay in payment of an insurance premium
shall be notified to the bank.
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Subordination
of the claims of SES Solar Inc. amounting to CHF 2,381,926 pursuant to the
annual statement as of December 31, 2008, copy of which is to be provided
to the bank.
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The
debtor(s) commit themselves not to reimburse the claims above without the
bank’s written consent.
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At
the end of the construction, the debtor(s) shall provide the bank with a
copy of the certificate established by [***] certifying that the
constructions have been correctly realized and that they do not present
any danger to third parties.
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Confidential
treatment has been requested for portions of this exhibit and such portions have
been filed separately with the Commission. The copy filed herewith omits the
information for which confidential treatment has been requested and replaces it
with [***].
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Miscellaneous :
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Under
no circumstances shall the sum of credit be liberated
without:
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Satisfaction
of all the aforementioned points (being understood that the conclusion of
the guarantee provided by [***] and conclusion of the contract with [***]
will take place after the use of credit),
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Definite
validation of the construction permit, a copy of which shall be submitted
to the bank,
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Remittance
to the bank of a copy of the purchase agreement of the solar power station
between the debtor(s) and the [***], duly signed, for the minimum price of
CHF [***],
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Remittance
to the bank of a duly signed copy of the agreement between the debtor(s)
and Xxxxxx X.X, in relation to the works to be provided for the minimum
amount of CHF [***] and with deferred payments,
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Remittance
to the bank of a copy of the contract of use of a commercial building’s
roof in [***], free of charge, between the debtor(s) and the owner of the
building, duly signed, for a minimum term of 25 years
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Remittance
to the bank of a copy of the contract duly signed between the debtor(s)
and [***] in relation to the purchase of the electricity produced by the
financed solar power station
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The
debtor(s) shall notify the bank immediately of any circumstances which put
or could put them in default or which caused or could cause a
deterioration in its/their financial standing.
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Funds
withdrawals :
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This
loan shall be used as the works advance, by means of payment orders,
accompanied by the relevant invoices to the benefit of the service
providers, established and signed by debtor(s)
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To
allow a precise control of the payment, the debtor(s) will provide the
bank with the list of the service providers duly dated and
signed.
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Confidential
treatment has been requested for portions of this exhibit and such portions have
been filed separately with the Commission. The copy filed herewith omits the
information for which confidential treatment has been requested and replaces it
with [***].
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Other
contractual bases:
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In addition, the present contract is also governed by the following enclosed documents, which are integral part of this contract and which should be returned to the bank duly dated and signed: | |
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·
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4
assignment agreements of products as a possible
guarantee
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Notices:
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All correspondence in relation to the financing should be sent to: | |
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SES
SOCIETE D’ENERGIE SOLAIRE SA
Xxx.
Xxxxxxxx Xxxxxxxxxx
Xxxxx
xx Xxxxx-Xxxxxx 000
0000
Xxxx-xxx-Xxxxxx
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Deadline
for acceptance :
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The present contract and its annexes must be returned to the bank no later than 30 September 09 duly signed and dated. | |
The
undersigned confirms that they took knowledge of every page of the present
contract, as well as general terms of the bank and the aforementioned documents,
and declares to accept all the contractual conditions which are enunciated
therein.
Geneva,
18 September, 2009
Banque
Cantonale de Genève
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Tanguy
de Jaegere
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Luca
Fontanelli
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Member
of the Management
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Executive
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Debtor(s):
Signature
/s/ Xxxxxxxx
Xxxxxxxxxx
SES
SOCIETE D’ENERGIE SOLAIRE SA
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Plan-les-Ouates
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September
18, 2009
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Confidential
treatment has been requested for portions of this exhibit and such portions have
been filed separately with the Commission. The copy filed herewith omits the
information for which confidential treatment has been requested and replaces it
with [***].
Contract to provide a
guarantee
The
undersigned:
SES
SOCIETE D’ENERGIE SOLAIRE SA
Assign to
the Banque Cantonale de Genève, with its headquarters in Geneva (“the
Bank”):
All the
proceeds of the sale of the Solar Central (being: the photovoltaic production
unit comprising the solar panels, the supporting structure, cables, accessory
equipment, and the associated remote processing) that is to be built on the
rooftops and in an appropriate local in the Shopping Center of [***], at
[***],
As well
as all the accessory rights and preferences, and interests that are or are to be
owed.
The
present assignment guarantees all present and future rights that the Bank have
or may have against the undersigned.
The
undersigned commit themselves to instruct the buyer to make payment directly to
the Bank who has the authority to notify the assignment if it thinks
fit.
The
undersigned acknowledge as being binding, the general conditions that are
applicable in relation to the Bank’s business and its clients.
Assignee(s)
SES
SOCIETE D’ENERGIE SOLAIRE SA
Signature:
/s/ Xxxxxxxx
Xxxxxxxxxx
Date and
place: September
18, 2009
Confidential
treatment has been requested for portions of this exhibit and such portions have
been filed separately with the Commission. The copy filed herewith omits the
information for which confidential treatment has been requested and replaces it
with [***].
Contract to provide a
guarantee
The
undersigned:
SES
SOCIETE D’ENERGIE SOLAIRE SA
Assign to
the Banque Cantonale de Genève, with its headquarters in Geneva (“the Bank”),
the product of the potential sale of the property at:
Xxxxxx xxx Xxxxx-xxx-Xxxxxx
00, 0000 Xxxx-xxx-Xxxxxx (XXX 0000 xx xx xxxxxxx xx
Xxxx-xxx-Xxxxxx)
For a
sum, yet to be determined, but that will be decided with a potential buyer,
including all accessory rights and preferences, as well as interests that are or
are to be owed.
The
present assignment guarantees all present and future rights that the Bank have
or may have against the undersigned.
The
undersigned commit themselves to instruct the buyer to make his payment(s)
directly to the Bank who is authorized to notify the assignment if it thinks
fit.
The
undersigned acknowledge as being binding, the general conditions that are
applicable in relation to the Bank’s business and its clients.
Assignee(s)
SES
SOCIETE D’ENERGIE SOLAIRE SA
Signature:
/s/ Xxxxxxxx
Xxxxxxxxxx
Date and
place: September
18, 2009
Confidential
treatment has been requested for portions of this exhibit and such portions have
been filed separately with the Commission. The copy filed herewith omits the
information for which confidential treatment has been requested and replaces it
with [***].
Contract to provide a
guarantee
The
undersigned:
SES
SOCIETE D’ENERGIE SOLAIRE SA
Assign to
the Banque Cantonale de Genève, with its headquarters in Geneva (“the
Bank”):
All the
proceeds arising from the contract that the undersigned will conclude with [***]
in relation to the sale of electricity produced by the solar central that it to
be built on the rooftops of the shopping center at [***],
As well
as all the accessory rights and preferences, and interests that are or are to be
owed.
The
present assignment guarantees all present and future rights that the Bank have
or may have against the undersigned.
The
undersigned commit themselves to instruct the buyer to make his payment(s)
directly to the Bank who is authorized to notify the assignment if it thinks
fit.
The
undersigned acknowledge as being binding, the general conditions that are
applicable in relation to the Bank’s business and its clients.
Assignee(s)
SES
SOCIETE D’ENERGIE SOLAIRE SA
Signature:
/s/ Xxxxxxxx
Xxxxxxxxxx
Date and
place: September
18, 2009
Confidential
treatment has been requested for portions of this exhibit and such portions have
been filed separately with the Commission. The copy filed herewith omits the
information for which confidential treatment has been requested and replaces it
with [***].
Contract to provide a
guarantee
The
undersigned:
SES
SOCIETE D’ENERGIE SOLAIRE SA
Assign to
the Banque Cantonale de Genève, with its headquarters in Geneva (“the
Bank”):
Its
(their) rights that follow from the policies of the civil liability insurance
and fire and floor insurance (force of nature, riots and malevolence acts)
concluded by the undersigned to cover the risks that are inherent to the
construction and exploitation of the solar central on the rooftops of the
shopping center at [***],
As well
as all the accessory rights and preferences, and interests that are or are to be
owed.
The
present assignment guarantees all present and future rights that the Bank have
or may have against the undersigned.
The
undersigned commit themselves to instruct the buyer to make his payment(s)
directly to the Bank who is authorized to notify the assignment if it thinks
fit.
The
undersigned acknowledge as being binding, the general conditions that are
applicable in relation to the Bank’s business and its clients.
Assignee(s)
SES
SOCIETE D’ENERGIE SOLAIRE SA
Signature:
/s/ Xxxxxxxx
Xxxxxxxxxx
Date and
place: September
18, 2009
