Guarantee Agreement Between Mr. Michael J. Ahearn a married man dealing with his sole and separate property (as the “Guarantor”) and IKB Deutsche Industriebank AG, Düsseldorf (as the Agent and a Beneficiary)
Exhibit 10.7
Between
Xx. Xxxxxxx X. Xxxxxx
a married man dealing with his sole and separate property
(as the “Guarantor”)
(as the “Guarantor”)
and
IKB Deutsche Industriebank AG, Düsseldorf
(as the Agent and a Beneficiary)
(as the Agent and a Beneficiary)
Preamble:
First Solar Holdings GmbH, Mainz, Germany, together with First Solar Inc., Phoenix, Arizona, USA
and through First Solar Manufacturing GmbH, Frankfurt (Oder), Germany (hereinafter referred to as
the “Borrower” or the “Principal Debtor”), intend to construct and operate a production plant in
Frankfurt/Oder for the production of solar modules on the basis of cadmium-telluride having a
capacity of 100 MWp (hereinafter referred to as the “Project”). First Solar GmbH shall distribute
the solar modules.
For this purpose, IKB Deutsche Industriebank AG, is ready to assist the Borrower — if need be,
together with other banks – (together with IKB Deutsche Industriebank AG hereinafter referred to as
the “Beneficiaries”), in accordance with the facility agreement signed on the date hereof by all
parties to this Agreement(hereinafter referred to as “Facility Agreement”) with loans of up to a
total of EURO 102,044,000 (hereinafter referred to as the “Loans”) that are divided as follows:
1. Installment loan of EURO 53,044,000 (hereinafter referred to as the “Installment Loan“)
2. Bridge-over loan of EURO 22,000,000
3. Working capital credit line of EURO 27,000,000 (hereinafter referred to as the “Working Capital
Loan”)
First Solar GmbH and First Solar Holdings GmbH are jointly and severally liable for the Loans
together with the Borrower.
The total financing need of the Project in the amount of EURO 142,524,000 is further covered by
equity capital in the amount of EURO 24,193,000 to be contributed by First Solar Holdings GmbH to
the Borrower, and by a shareholders’ loan of EURO 20,000,000 to be provided by First Solar Holdings
GmbH.
The Federal Republic of Germany, together with the Federal State of Xxxxxxxxxxx, xxxx assume an 80%
combined guaranties and sureties undertaking with regard to the Installment Loan and the Working
Capital Loan (hereinafter referred to as “Guaranties Undertaking”).
This guarantor is the general manager of the “Borrower”.
1. Guarantee
The Guarantor herewith guarantees and promises to pay an amount up to
EURO 500,000
(in words: Five Hundred Thousand Euro)
(in words: Five Hundred Thousand Euro)
for all existing, future, and contingent claims that pertains or will pertain to the Beneficiaries
and/or the Agent under the Facility Agreement toward the Principal debtor.
The Guarantor is familiar with the “Facility Agreement”.
2. Recourse to the guarantee, waiver of rights
2.1
If the claims secured by this guarantee become due and neither the Principal Debtor nor First Solar
GmbH or First Solar Holdings GmbH satisfies these claims, the Beneficiaries and/or the Agent may
approach the Guarantor, who then, upon a demand made by the Beneficiaries and/or the Agent, must
effect payment hereunder due to his guarantee as a jointly and severally liable debtor. Neither the
Beneficiaries nor the Agent are obliged to first take any judicial actions against the Principal
Debtor or to realize any other securities provided to them.
The Agent is entitled to assert the Beneficiaries’ rights resulting from this guarantee on their
behalf.
2.2
The Guarantor’s right to discharge any claim by way of setting off shall be excluded.
3. Transfer of securities
Before complete satisfaction of the guaranteed debt, the Guarantor shall have no right to a
transfer of securities that have been assigned to the Beneficiaries to secure the guaranteed debt.
If the claims of the Beneficiaries and/or the Agent exceed the amount indicated in article 1
hereof, and any other security provided to the Beneficiaries is transferred to the the Guarantor
by operation of law which also serves to secure the part of the Beneficiaries ‘ and/or Agent’s
claims against the Principal Debtor which are not guaranteed hereunder, then the Beneficiaries and
the Agent are entitled to satisfy their claims by enforcing these securities in priority to the
Guarantor.
4. Offsetting collected payments
The Beneficiaries and/or the Agent may apply the proceeds from the realization of any security,
provided to them by the Principal Debtor, first to the portion of their claim that exceeds the
amount indicated in article 1 hereof. This also applies to any security that the Guarantor has
provided as additional security for any claims toward the Principal Debtor, unless these were only
intended to support this guarantee. In the same manner, namely by giving priority to the
non-guaranteed portion of their claims against the Principal Debtor, the Beneficiaries and/or the
Agent may apply all payments received from the Principal Debtor or on his behalf.
5. Liability of several guarantors
If, in addition to the Guarantor, a third party has provided a guaranty guaranteeing the same
liability of the Principal Debtor, then each individual guarantor is liable – excluding, in
relation to the Beneficiaries and/or the Agent”, a joint and several liability of these guarantors
– for the total amount of the guarantee such guarantor assumed, irrespective of any payments
effected by another guarantor, until all claims of the Beneficiaries and/or the Agent against the
Principal Debtor have been completely satisfied.
The Guarantor shall not be released from his obligations under this guarantee, if the Beneficiaries
and/or the Agent release any other guarantor from their liability.
6. Release of securities
The Guarantor shall not be released from his obligation under this guarantee, if the Beneficiaries
and/or the Agent cancel or release any other security provided to them for securing the guaranteed
debt.
7. Guarantee of the Federal Republic of Germany and the Federal State of Xxxxxxxxxxx
The guarantee provided under this guarantee agreement shall apply in priority to the Guarantee
Undertaking. The Guarantor shall have no recourse or compensation claims toward the Federal
Republic of Germany or the Federal State of Xxxxxxxxxxx.
The Guarantor may only assert any claims arising due to the guarantee provided hereunder in
subordination to any claims arising due to the Guarantee Undertaking.
8. Legal Successors of the “Agent”
The Agent may assign its rights and duties arising from this Agreement to third parties at any time
in accordance with the Facility Agreement, after the Agent has resigned from its position of a
security agent or after having been dismissed from this position. The Guarantor hereby consents for
the respective third party, who assumes the position of a security agent in accordance with the
Facility Agreement, to become party to this Agreement as the legal successor of the Agent.
9. Statutes of limitations
The guarantor hereby waives the right to interpose the statute of limitations with respect to this
guarantee.
10. Return of the guarantee
The Beneficiaries shall release the Guarantor” from his obligations under this Agreement as soon as
the Principal Debtor, First Solar GmbH and First Solar Inc., have duly meet all their obligations
assumed in the Agreement Undertaking with regard to the implementation of a insolvency proof and
free of cost system for the return, recycling and disposal of solar modules signed by First Solar
Inc. and the Agent on the date hereof.
11. Applicable Law, Jurisdiction
This Agreement is governed by the laws of the State of Arizona without regard to its conflicts of
law principles. Place of jurisdiction and place of performance shall be Arizona, U.S.A. Each
party, and any other party claiming rights hereunder, unconditionally submits itself to the
exclusive jurisdiction of any court located in Maricopa County, State of Arizona, U.S.A., for any
dispute arising under or related in any fashion to this Agreement. Each such party unconditionally
waives any objection that it may now or hereafter have to the laying of venue of any suit, action
or proceeding in any such court and waives the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
IKB Deutsche Industriebank AG as the Agent
By : |
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Its: |
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Guarantor: | ||||
Xxxxxxx X. Xxxxxx, a married man dealing with his sole and separate property |