NOTE PURCHASE AND SALE AGREEMENT
Exhibit 10.1
THIS NOTE PURCHASE AND SALE AGREEMENT (“Agreement”) is entered into as of December 22, 2010
(“Effective Date”) by and between SOLAR POWER, INC., a California corporation (“Seller”), and HEK
PARTNERS, LLC, a California limited liability company (“Buyer”).
1. Background.
(a) Seller was a party to that certain Engineering, Procurement and Construction Contract
dated September 30, 2009 (“EPC Agreement”) between Seller and Solar Tax Partners 1, LLC (“STP1”)
pursuant to which STP1 contracted with Seller to construct and install an electricity
grid-connected photovoltaic solar power plant facility with a total generating capacity rated at
approximately 3,614.56 kWp (“Generating Facility”). Buyer is the managing member of STP1.
(b) As partial payment of the purchase price under the EPC, Seller agreed that $3,630,164 of
the payment required under the terms of the EPC Agreement could be paid pursuant to a promissory
note (“Promissory Note”) made by Buyer in favor of Seller.
(c) Buyer and Seller have been negotiating to amend the terms of the Promissory Note to
provide that the current payment schedule be eliminated and that payments be made from cash
distributions to Buyer from the Generating Facility entities, over a term not to exceed twenty (20)
years.
2. Purpose. Seller wishes to sell, transfer and assign and Buyer wishes to purchase
and assume all of Seller’s right, title, and interest under the Promissory Note and Security
Agreement (“Note Documents”), subject to the terms and conditions of this Agreement.
3. Purchase and Sale of Note. As of the Effective Date, Seller agrees to sell the
Promissory Note to Buyer on the following terms and conditions: (a) Buyer shall (i) pay to Seller
the sum of One Million Dollars ($1,000,000) in cash (“Purchase Price”) and (ii) hereby agree to the
release of Seller set forth in Section 5 below, and (b) Seller shall assign to Buyer all right,
title and interest in and to the Promissory Note, and shall agree to pay the following future
obligations of Buyer concurrent with the closing of a loan by East West Bank to STP1 to refinance
the Generating Facility: (i) all closing, recording and escrow fees and costs, (ii) the attorney’s
fees of Greystone Renewable Energy Fund 2008-A, LLC in connection with such loan, (iii) and any
funding shortfall required to close the loan.
4. Assignment of Promissory Note. Concurrent with the payment by Buyer of the
Purchase Price, Seller shall execute and deliver to Buyer the Assignment of Promissory Note in the
form attached hereto as Exhibit A to which the original executed Promissory Note shall be
attached.
5. Release and Waiver of Claims.
(a) Buyer hereby releases, waives, and forever discharges Seller, its successors in interest,
and its past, present and future assigns, officers, directors, subsidiaries, affiliates, and
insurers, from any and all past claims, demands, actions, liabilities and causes of actions, of
every kind and character, whether asserted or unasserted, whether known or unknown, suspected
or unsuspected, in law or in equity, for or by reason of any matter, cause or thing whatsoever,
arising out of or in connection with the Generating Facility, excepting only the obligations
created by, and the representations, warranties and covenants made in this Agreement and under
that Guaranty dated December 23, 2009.
(b) It is understood and agreed that the Release in Section 5(a) is intended to cover and
does cover all claims or possible claims of every nature and kind whatsoever, whether known or
unknown, suspected or unsuspected, or hereafter discovered or ascertained, and all right under
Section 1542 of the Civil Code of California (“Section 1542”) are hereby expressly waived. The
parties acknowledge that they are familiar with Section 1542, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Buyer expressly, knowingly, and intentionally waives and relinquishes any and all rights
that they have under Section 1542, as well as under any other similar state or federal statute or
common law principle.
6. Miscellaneous.
(a) Entire Agreement. This Agreement and the Exhibits hereto contain the entire
agreement of the parties hereto, and supersede any prior written or oral agreements between them
concerning the subject matter contained herein, including, without limitation, any letters of
intent or letters of interest between the parties. THERE ARE NO REPRESENTATIONS, AGREEMENTS,
ARRANGEMENTS OR UNDERSTANDINGS, ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER WHICH ARE NOT FULLY
EXPRESSED HEREIN.
(b) Amendment. The provisions of this Agreement may be modified at any time by
agreement of the Parties. Any such agreement shall be ineffective to modify this Agreement in any
respect unless in writing and signed by the Parties against whom enforcement of the modification or
discharge is sought.
(c) Further Assurances. Each Party agrees to execute and deliver such other
assurances, deeds, instructions, instruments of transfer and other documents as may be reasonably
requested by the other Party to carry out the purpose and intent of this Agreement.
(d) Attorneys’ Fees. In the event any of the parties shall commence legal proceedings
or arbitration proceedings for the purpose of enforcing any provision or condition hereof, or by
reason of any breach arising under the provisions hereof, then the prevailing party in such
proceeding shall be entitled to court costs and reasonable attorneys’ fees to be determined by the
Court or Arbitrator. Without limiting the generality of the foregoing, the prevailing party shall
be entitled to recover its attorneys’ fees and other legal expenses incurred in connection with a
bankruptcy or other insolvency-related proceeding of the other party (and including such fees
and expenses incurred in efforts, whether successful or not, to obtain adequate protection,
annulment, modification or termination of the automatic stay).
(e) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of their respective successors and permitted assigns.
(f) Waiver. Any of the terms or conditions of this Agreement may be waived in writing
at any time by the party entitled to the benefit thereof, but no such waiver shall affect or impair
the right of the waiving party to require observance, performance or satisfaction either of that
term or condition as it applies on a subsequent occasion or of any other term or condition.
(g) Counterparts. This Agreement may be executed in any number of counterparts and
each such counterpart shall be deemed an original, but all of which, when taken together, shall
constitute one agreement. Signatures transmitted by facsimile or by .pdf file delivered via
electronic mail shall be binding; provided, however, that any Party transmitting its signature by
facsimile or such electronic mail shall promptly send an original signature to the other Party.
(h) Invalidity of Provision. If any provision of this Agreement as applied to either
party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or
unenforceable for any reason, the same shall in no way affect (to the maximum extent permissible by
law) any other provision of this Agreement, the application of any such provision under
circumstances different from those adjudicated by the court, or the validity or enforceability of
this Agreement as a whole.
(i) Governing Law. The rights and obligations of the Parties and the interpretation
and performance of this Agreement shall be governed by the laws of the State of California,
excluding its conflicts of laws rules.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, this Note Purchase and Sale Agreement has been executed and is effective
as of the date set forth above.
| SELLER: | BUYER: | |||||||||
| SOLAR POWER, INC., a California corporation | HEK PARTNERS , LLC, a California limited liability company | |||||||||
By:
|
/s/ Xxxxxx Xxxxxx | By: | /s/Xxxxxxx X. Xxxxxx | |||||||
Name:
|
Xxxxxx Xxxxxx | Xxxxxxx X. Xxxxxx, Manager | ||||||||
Title:
|
Chief Financial Officer | |||||||||
| By: | /s/ Xxxxxx Xxx | |||||||||
| Xxxxxx Xxx, Manager | ||||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||||
| Xxxxxxx X. Xxxxxxx, Manager | ||||||||||
EXHIBIT A
ASSIGNMENT OF PROMISSORY NOTE
THIS ASSIGNMENT OF PROMISSORY NOTE (“Assignment”) is made as of December 22, 2010 by SOLAR
POWER, INC., a California corporation (“Assignor”) and HEK PARTNERS, LLC, a California limited
liability company (“Assignee”).
1. Background. Assignor and Assignee have entered into that certain Note Purchase and
Sale Agreement dated December 22, 2010 (“Purchase Agreement”) pursuant to which Assignor has agreed
to sell, transfer and assign to Assignee all of Assignor’s right, title and interest in and to that
certain Promissory Note dated December 23, 2009 by Assignee in favor of Assignor in the principal
amount of $3,630,164 (“Promissory Note”), the original copy of which is attached as Attachment
1.
2. Assignment. Assignor hereby assigns, conveys, grants and transfers to Assignee,
all of Assignor’s right, title, and interest in and to the Note and assigns and delegates to
Assignee all of the terms, covenants, conditions, duties and obligations to be performed by
Assignor under the Note arising from and after the Effective Date.
3. Assumption. Assignee hereby accepts and assumes from Assignor all such right,
title, and interest in and to the Promissory Note, and accepts and assumes the delegation and
agrees to perform and fulfill all the terms, covenants, conditions, and obligations required to be
performed and fulfilled by Assignor under the Promissory Note.
4. Entire Agreement. This Assignment, together with the Purchase Agreement which is
incorporated herein by reference, contains the entire agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject matter
contained herein, including, without limitation, any letters of intent or letters of interest
between the parties.
IN WITNESS WHEREOF, this Assignment and Assumption of Note has been executed and is effective
as of the date set forth above.
| ASSIGNOR: | ASSIGNEE: | |||||||||
| SOLAR POWER, INC., a California corporation | HEK PARTNERS , LLC, a California limited liability company | |||||||||
By:
|
/s/ Xxxxxx Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name:
|
Xxxxxx Xxxxxx | Xxxxxxx X. Xxxxxx, Manager | ||||||||
Title: |
Chief Financial Officer | |||||||||
| By: | /s/ Xxxxxx Xxx | |||||||||
| Xxxxxx Xxx, Manager | ||||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||||
| Xxxxxxx X. Xxxxxxx, Manager | ||||||||||
