EXECUTION VERSION PURCHASE and Sale AGREEMENT by and between PATTERN ENERGY GROUP INC., Purchaser and GREEN POWER INVESTMENT CORPORATION, Seller Dated as of February 26, 2018 Interests in GK Green Power Kanagi GK Green Power Otsuki Otsuki Wind Power...
Exhibit 10.4
EXECUTION VERSION
by and between
PATTERN ENERGY GROUP INC.,
Purchaser
and
GREEN POWER INVESTMENT CORPORATION,
Seller
Dated as of
February 26, 2018
Interests in
XX Xxxxx Power Kanagi XX Xxxxx Power Otsuki Otsuki Wind Power Corporation
LIST OF EXHIBITS AND APPENDICES
| Exhibit A | General Definitions | |
| Exhibit B | Rules of Construction | |
| Appendix A | Kanagi | |
| Section A | Transaction Terms and Conditions | |
| Section B | Acquired Interests; Ownership Structure; and Solar Project Information | |
| Section C | Documents and Key Counterparties | |
| Section D | Affiliate Transactions | |
| Appendix B | Ohorayama | |
| Section A | Transaction Terms and Conditions | |
| Section B | Acquired Interests; Ownership Structure; and Wind Project Information | |
| Section C | Documents and Key Counterparties | |
| Section D | Affiliate Transactions | |
| Appendix C | Otsuki | |
| Section A | Transaction Terms and Conditions | |
| Section B | Acquired Interests; Ownership Structure; and Wind Project Information | |
| Section C | Documents and Key Counterparties | |
| Section D | Affiliate Transactions |
THIS PURCHASE and Sale AGREEMENT (this “Agreement”), dated as of February 26, 2018, is made by and between Pattern Energy Group Inc., a Delaware corporation (“Purchaser”), and Green Power Investment Corporation, a Japanese corporation (the “Seller”). Capitalized terms used in this Agreement shall have the respective meanings specified in Exhibit A attached hereto.
ARTICLE 1 PURCHASE AND SALE OF THE ACQUIRED INTERESTS
other deliverables with respect to each Acquisition set forth in Part II of Section A of the Appendix relating to such Acquisition.
(a) At or prior to each Closing for an Acquisition, Seller shall deliver, or cause to be delivered, to the Purchaser:
| (i) | except as otherwise provided on Schedule 1.5(a)(i), the original certificates representing the Acquired Interests to be purchased at such Closing duly endorsed for transfer by Seller to the Purchaser (or the applicable Subsidiary Purchaser) or with appropriate powers with respect thereto duly endorsed by Seller; provided, that if such Acquired Interests are not in certificated form, Seller shall deliver to the Purchaser (or the applicable Subsidiary Purchaser) a duly executed assignment agreement or other instrument conveying such Acquired Interests to the Purchaser in form and substance reasonably acceptable to the Purchaser; |
| (ii) | any other documents and certificates contemplated by Article 4 and Article 5 hereof to be delivered by or on behalf of Seller at such Closing, including the certificate referred to in Section 5.2(d); |
| (iii) | not less than five (5) Business Days prior to its delivery of a Closing Notice for a Closing, Seller shall deliver to the Purchaser (A) an updated Financial Model for the applicable Project, which shall be revised pursuant to Part I of Section A of the Appendix for the applicable Acquisition, and which shall be used to determine the Purchase Price Adjustment (if any) for such Acquisition; and (B) a detailed calculation of any proposed Purchase Price |
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Adjustment, if any, for such Acquisition. The Purchaser shall have a period of two (2) Business Days to review and confirm the updates to such Financial Model and the calculation of such Purchase Price Adjustment. If the Purchaser disapproves of such updates to such Financial Model and/or the calculation of such Purchase Price Adjustment, the parties shall have a further period of two (2) Business Days to negotiate the same. In the event that the parties cannot agree on such updates to such Financial Model and/or calculation of such Purchase Price Adjustment (acting reasonably) following such two (2) Business Day period, (x) the parties shall resolve any dispute in accordance with the procedures set forth in Section 7.4 (which, for the avoidance of doubt, shall not delay the Closing Date) and (y) the amount in dispute shall be retained by the Purchaser until the dispute is resolved as aforesaid. Subject to the foregoing, with respect to each Closing, Seller shall deliver to Purchaser a signed direction containing the final determination of the Purchase Price for such Acquisition (less any disputed amount) for the Purchaser not less than two (2) Business Days prior to the Closing Date applicable to such Closing; and
| (iv) | any other Closing deliverables set forth in Section A-1 of the Appendix for such Acquisition. |
(b) With respect to each Acquisition, at or prior to the Closing for such Acquisition, the Purchaser shall deliver to Seller:
| (i) | the documents and certificates contemplated by Article 4 and Article 5 hereof to be delivered by or on behalf of the Purchaser (or the applicable Subsidiary Purchaser) with respect to such Acquisition, including the certificate referred to in Section 5.3(d); and |
| (ii) | any other Closing deliverables set forth in Section A-2 of the applicable Appendix relating to such Acquisition. |
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ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in, or qualified by any matter set forth in, the Schedules attached hereto, with respect to each Acquisition, Seller hereby represents and warrants to Purchaser as set forth in this Article 2 as of (a) the date hereof and (b) the Closing Date, in each case, unless otherwise specified in the representations and warranties below, in which case the representation and warranty is made as of such date. Whether or not a particular Section of this Article 2 refers to a specific, numbered Schedule for an Acquisition, such Section shall, to the extent applicable, be subject to the exceptions, qualifications, and other matters set forth in the Schedules for such Acquisition to the extent that the relevance of such exceptions, qualifications or other matters is reasonably apparent on the face thereof. Seller is making the representations and warranties set forth in this Article 2 solely on an Acquisition by Acquisition basis, and the representations and warranties with respect to any one Acquisition shall not apply to any other Acquisition.
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(a) None of Seller, the Project Company for such Acquisition or any of such Project Company’s Subsidiaries is a party to or has received written notice of any pending or, to the Knowledge of Seller, threatened litigation, action, suit, proceeding or governmental investigation against Seller, such Project Company or such Project Company’s Subsidiaries which would reasonably be expected to be material to the ownership of the Acquired Interests for such Acquisition or which seeks the issuance of an order restraining, enjoining, altering or materially delaying the consummation of the transactions contemplated by this Agreement with respect to such Acquisition.
(b) Neither the Project Company for such Acquisition nor any of its Subsidiaries is a party to or has received written notice of any pending or, to the Knowledge of Seller, threatened litigation, action, suit, proceeding or governmental investigation which would reasonably be expected to be material to the Project for such Acquisition or which seeks the issuance of an order restraining, enjoining, altering or materially delaying the consummation of the transactions contemplated by this Agreement with respect to such Acquisition.
(c) There are no material disputes with any counterparty to a Material Contract relating to the Project Company or the Project relating to such Acquisition. Neither the Project Company for such Acquisition nor any of its Subsidiaries has made any material warranty claim under any Material Contract.
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(a) There has been no actual violation by Seller of or failure by Seller to comply with any Governmental Rule that is applicable to it, or allegation by any Governmental Authority of such a violation, that would reasonably be expected to prevent or materially impair or delay the consummation of the transactions contemplated by this Agreement with respect to such Acquisition.
(b) To the Knowledge of Seller, there has been no actual violation by the Project Company for such Acquisition or any of its Subsidiaries of or failure by such Project Company or its Subsidiaries to comply with any Governmental Rule that is applicable to it, or allegation by any Governmental Authority of such a violation, that would reasonably be expected to be material and relates to the Project or would otherwise reasonably be expected to prevent or materially impair or delay the consummation of the transactions contemplated by this Agreement with respect to such Acquisition.
(a) With respect to the Kanagi Project, the Project Company for such Acquisition has been, at all times since June 24, 2015, a partnership or a disregarded entity for U.S. federal income tax purposes. With respect to the Ohorayama Project, the Project Company for such Acquisition has been, at all times since March 26, 2015, a partnership or a disregarded entity for U.S. federal income tax purposes. With respect to the Otsuki Project, the Project Company for such Acquisition has been, at all times since its formation, a corporation for U.S. federal income tax purposes.
(b) The Project Company for each Acquisition and its Subsidiaries has been, at all times since its formation, taxable as a corporation for Japanese tax purposes.
(c) With respect to the HoldCo for each Acquisition and its Subsidiaries, no jurisdiction or authority in or with which such entity does not file Tax Returns has alleged that it is required to file Tax Returns, and there is no claim, audit, action, suit, proceeding or investigation now pending or threatened against or with respect to any such entity.
(d) The Holdco for each Acquisition and its Subsidiaries has timely filed all Tax Returns that it is required to file, has timely paid or has caused to be timely paid all Taxes it is required to pay to the extent due (other than those Taxes that it is contesting in good faith and by appropriate proceedings, with adequate and segregated reserves established for such Taxes) and, to the extent such Taxes are not due, has established or caused to be established reserves that are adequate for the payment thereof as required by GAAP.
(e) None of the HoldCo for each Acquisition and its Subsidiaries has been a member of an affiliated, consolidated, combined or unitary group for any Tax purposes other than one of which such HoldCo or its applicable Subsidiary was the common parent, or made any election or participated in any arrangement whereby any Tax liability or any Tax asset of such HoldCo or such HoldCo’s applicable Subsidiary was determined or taken into account for Tax purposes with reference to or in conjunction with any Tax liability or any Tax asset of any other Person.
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(f) The HoldCo for each Acquisition and its Subsidiaries each has withheld from each payment made to any Person, all amounts required by applicable Laws to be withheld, and has remitted such withheld amounts within the prescribed periods to the appropriate Governmental Authorities.
(g) The HoldCo for each Acquisition and its Subsidiaries each has charged, collected and remitted on a timely basis all Taxes as required under applicable Laws on any sale, supply or delivery whatsoever, made by it.
(h) The HoldCo for each Acquisition and its Subsidiaries each has maintained and continues to maintain at its place of business all records and books of account required to be maintained under applicable Laws, including Laws relating to sales and use Taxes.
(i) With respect to the HoldCo for each Acquisition and its Subsidiaries (i) no reassessments of the Taxes of it have been issued and are outstanding, (ii) the Seller has not received any indication from any Governmental Authority that an assessment or reassessment of it is proposed in respect of any Taxes, regardless of its merits, and (iii) it has not executed or filed with any Governmental Authority any agreement or waiver extending the period for assessment, reassessment or collection of any Taxes.
(j) The HoldCo for each Acquisition and its Subsidiaries each will not be required to include for any Post-Closing Tax Period (i) any adjustment in taxable income pursuant to Section 481 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Laws) or (ii) taxable income attributable to any prepaid amount received on or prior to the Closing Date or income economically realized in any Pre-Closing Tax Period, including any distributions in a Pre-Closing Tax Period from an entity that is fiscally transparent for Tax purposes and any income that would be includible in a Post-Closing Tax Period as a result of the installment method.
(k) None of the Project Companies is treated as engaged in a trade or business within the United States for U.S. federal income tax purposes.
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Knowledge of Seller, each other party thereto, in accordance with its terms, except as such terms may be limited by (i) applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, whether considered in a proceeding in equity or at law. None of the Project Company for the applicable Acquisition or its Subsidiaries, or to the Knowledge of Seller, any other party thereto (i) is in breach of or default in any material respect under a Material Contract relating to the Project Company or the Project for such Acquisition and, to the Knowledge of Seller, no event has occurred and is continuing which, with notice or the lapse of time or both, would constitute a material breach of or default under any such Material Contract or would give rise to any right of termination, cancellation, acceleration, amendment, suspension or revocation of any such a Material Contract, or (ii) has received any written notice of termination or suspension of any Material Contract relating to the Project Company or the Project for such Acquisition, and to the Knowledge of Seller, no action is being taken by any Person to terminate or suspend any such Material Contract.
(a) Part V of Section C of the Appendix for such Acquisition lists all of the real property owned by the Project Company for such Acquisition or its Subsidiaries. To the Knowledge of Seller, no Governmental Authority has commenced the exercise of any eminent domain or similar power with respect to the Project Company Real Property for such Acquisition, and there are no pending or, to the Knowledge of Seller, threatened condemnation or eminent domain proceedings that affect any such Project Company Real Property.
(b) The Project Company for such Acquisition and/or its Subsidiaries has good and valid title to or, subject to the terms and conditions of the Material Leases for such Acquisition, the right to use all Project Company Real Property for such Acquisition, free and clear of all Liens other than Permitted Liens. With respect to the Project Company Real Property for such Acquisition it leases or on which it was granted servitudes or superficies pursuant to the Material Leases relating to such Acquisition, the Project Company for such Acquisition or its applicable Subsidiary has peaceful and undisturbed nonexclusive possession under all Material Leases relating to such Acquisition, servitudes or superficies under which it is leasing or occupying property in accordance with the terms and conditions of such Material Leases, servitude or superficies and subject to the Permitted Liens. All rents and other payments under the Material Leases relating to such Acquisition have been paid in full to the extent due.
(c) The Project Company Real Property relating to such Acquisition is sufficient to provide the Project Company for such Acquisition and its Subsidiaries with continuous, uninterrupted and, together with public roads, contiguous access to the Project relating to such Acquisition sufficient for the operation and maintenance of such Project as currently conducted. All utility services necessary for the construction and operation of such Project for its intended purposes are available or are reasonably expected to be so available as and when required upon commercially reasonable terms.
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and effect all Permits required for the operation, ownership and maintenance of the applicable Project as presently conducted, and, in the case of any Project not yet in operation, holds all Permits needed to complete construction of such Project and reasonably expects to obtain when needed all Permits needed for the operation and maintenance of such Project in due course on commercially reasonable terms and conditions, in each case, other than those Permits required in connection with certain construction and maintenance activities which are ministerial in nature and can reasonably be expected to be obtained in due course on commercially reasonable terms and conditions as and when needed. None of the Project Company for such Acquisition or any of its Subsidiaries is in material default or material violation, and, to the Knowledge of Seller, no event has occurred and is continuing which, with notice or the lapse of time or both, would constitute a material default or material violation of, or would give rise to any right of termination, cancellation, acceleration, amendment, suspension or revocation under, any of the terms, conditions or provisions of any Permits held by such Project Company or its Subsidiaries. There are no legal proceedings pending or, to the Knowledge of Seller, threatened in writing, relating to the suspension, revocation or modification of any Permits held by the Project Company for such Acquisition or any of its Subsidiaries.
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Project Company for the applicable Acquisition and its Subsidiaries are insured in amounts no less than as required by applicable Law, applicable Permits or any Material Contract relating to the Project Company or the Project for such Acquisition, to which such Person is a party or by which its assets or properties are bound.
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF Purchaser
Except as set forth in, or qualified by any matter set forth in, the applicable Schedules, the Purchaser hereby represents and warrants to Seller with respect to each Acquisition as set forth in this Article 3 as of (a) the date hereof and (b) as of the Closing Date, in each case, unless otherwise specified in the representations and warranties below, in which case the representation and warranty is made as of such date. Whether or not a particular Section of this Article 3 refers to a specific, numbered Schedule for an Acquisition, such Section shall, to the extent applicable, be subject to the exceptions, qualifications, and other matters set forth in the Schedules relating to such Acquisition to the extent that the relevance of such exceptions, qualifications or other matters is reasonably apparent on the face thereof. Purchaser is making the representations and warranties set forth in this Article 3 solely on an Acquisition by Acquisition basis, and the representations and warranties with respect to any one Acquisition shall not apply to any other Acquisition.
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any agreement, contract, lease, license, instrument or other arrangement to which the Purchaser is a party or by which the Purchaser is bound.
3.10 Broker’s Fee. With respect to such Acquisition, the Purchaser has no liability or obligation for any fees or commissions payable to any broker, finder or agent with respect to the transactions contemplated by this Agreement relating to the Acquisition.
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ARTICLE 4 COVENANTS; OTHER OBLIGATIONS
(a) Project Specific Pre-Closing Covenants of Seller. Seller shall use commercially reasonable efforts to conduct the business, operations and affairs of the Project Company for such Acquisition only in the ordinary and normal course of business, subject to the following provisions with respect to any proposed entry into any Material Contract relating to such Acquisition or any proposed amendment, termination or waiver (in whole or in part) of any Material Contract relating to such Acquisition (each such proposal, a “Material Contract Change”):
| (i) | Seller shall give prior written notice to Purchaser of, and shall to the extent practicable consult in good faith with Purchaser regarding, any Material Contract Change that would reasonably be expected to materially and adversely affect such Project or any applicable HoldCo; and |
| (ii) | Seller may, but shall not be obligated to, seek by written notice the approval of the Purchaser to any Material Contract Change. During the twenty calendar-day period following delivery of any such notice, Seller shall provide to the Purchaser promptly any information within Seller’s possession regarding such Material Contract Change as the Purchaser reasonably requests. The Purchaser shall, by the end of such twenty calendar-day period, notify Seller whether it approves (acting reasonably) such Material Contract Change. If Purchaser does not approve such Material Contract Change, Seller may (A) abstain from proceeding with such Material Contract Change, (B) proceed with such Material Contract Change (in which case the Purchaser retains its right to assert a failure of a condition precedent to Closing, if applicable), or (C) terminate this Agreement with respect to such Project Company. If Purchaser fails to complete the Closing as a result of a proposed Material Contract Change, then the Seller must proceed with such Material Contract Change, or notify the Purchaser and provide the Purchaser with the opportunity to complete such Closing. |
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(d) Tax. Without the prior written consent of Purchaser, none of Seller, the Project Company for an Acquisition and their respective Subsidiaries shall, to the extent it may affect such Project Company and its Subsidiaries and/or the owners of any such entity, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, settle any Tax claim or assessment, surrender any right to claim a Tax refund, offset or other reduction in Tax liability.
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reasonable judgment of the disclosing party, is necessary or appropriate to comply with Governmental Rules and standards governing disclosures to investors) or in accordance with the rules, regulations and orders of any stock exchange. Seller shall not, and shall cause its Affiliates and directors, officers, employees, agents, consultants advisors and partners not to, disclose any confidential information in or relating to this Agreement other than (i) to its Affiliates and its and their directors, officers, employees, agents, consultants, advisors and partners, provided in each case that such recipient is bound by reasonable confidentiality obligations, (ii) as required by applicable law or regulation or (iii) with the prior consent of Purchaser. Seller shall not use, and shall not enable any third party to use, any confidential information in or relating to this Agreement that constitutes material non-public information regarding Purchaser in a manner that is prohibited by the U.S. securities laws.
(c) Regulatory Approvals. Each party shall use its commercially reasonable efforts to obtain all required regulatory approvals with respect to each Acquisition (including the required Governmental Approvals set forth in Part VII of Section A of the applicable Appendix) as promptly as possible and, in any event, prior to the Closing Date for such Acquisition. To that end, each of the parties shall make, or cause to be made, all other filings and submissions, and submit all other documentation and information that in the reasonable opinion of the Purchaser is required or advisable, to obtain the regulatory approvals for each Acquisition, and will use its commercially reasonable efforts to satisfy all requests for additional information and documentation received under or pursuant to those filings, submissions and the applicable legislation and any orders or requests made by any Governmental Authority. Notwithstanding any other provision of this Agreement, the Purchaser will not be required to (i) propose or agree to accept any undertaking or condition, enter into any consent agreement, make any divestiture or accept any operational restriction or other behavioral remedy with respect to any Acquisition, (ii) take any action that, in the reasonable judgment of the Purchaser, could be expected to limit the right of the Purchaser to own or operate all or any portion of the business or assets of the Project Company for an Acquisition or of the Purchaser or any of its Affiliates, or to conduct their respective affairs in a manner consistent with how they each conduct their affairs as of the date of this Agreement, or (iii) contest or defend any judicial or administrative proceeding brought by any Governmental Authority seeking to prohibit, prevent, restrict or unwind the consummation of all or a part of an Acquisition.
(e) Other Obligations of Seller and Purchaser. The parties mutually covenant as follows:
| (i) | to use all reasonable efforts in good faith to obtain promptly the satisfaction of the conditions to the Closing for each Acquisition; |
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| (ii) | to furnish to the other parties and to the other parties’ counsel all such information as may be reasonably required in order to effectuate the foregoing actions, including draft regulatory filings and submissions, provided that such information may be redacted to render illegible any commercially sensitive portions thereof, and in such event the parties will meet in good faith to agree on protective measures to allow disclosure of such redacted information to counsel in a manner that affords the maximum protection to such commercially sensitive information as is reasonable in the circumstances; and |
| (iii) | to advise the other parties promptly if any party determines that any condition precedent to its obligations hereunder will not be satisfied in a timely manner. |
(a) Seller shall prepare or cause to be prepared and file or cause to be filed (i) all Tax Returns for each HoldCo and its Subsidiaries that do not include any Post-Closing Tax Period and (ii) all Tax Returns that the such HoldCo and its Subsidiaries file jointly with the Seller or any of its Affiliates. Seller shall permit Purchaser to review, comment and consent on each such Tax Return prior to filing it and shall reasonably and in good faith consider such revisions to such Tax Returns as are requested by Purchaser. To the extent that any Taxes shown as due and payable on any such Tax Return were not included in the calculation of the Purchase Price, such Taxes shall be paid by Seller.
(b) Except as set forth in Section 4.03(c), Buyer shall prepare or cause to be prepared and file or cause to be filed all Tax Returns for each HoldCo and its Subsidiaries. Purchaser shall permit Seller to review and comment on each such Tax Return that relates to a Pre-Closing Tax Period prior to filing it, to the extent that such Tax Return could result in a Tax liability for which Seller would be responsible under this Agreement, and Purchaser shall reasonably and in good faith consider such revisions to such Tax Returns as are requested by Seller. Any Covered Taxes for any Tax Period with respect to which such Tax Returns were filed shall be promptly paid to Buyer or, at Buyer’s request, to the applicable Governmental Authority, to the extent not included in the calculation of the Purchase Price.
(c) For purposes of the determination of Covered Tax in respect of a Straddle Tax Period, (i) in the case of any Taxes other than gross receipts, sales or use Taxes and Taxes based upon or related to income, the definition of Covered Tax shall be deemed to include the amount of such Tax for the entire Tax period multiplied by a fraction the numerator of which is
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the number of days in the Tax period ending on and including the Closing Date and the denominator of which is the number of days in the entire Tax period, and (ii) in the case of any Tax based upon or related to income and any gross receipts, sales or use Tax, the definition of Covered Tax shall be deemed to include the amount that would be payable if the relevant Tax period ended on and included the Closing Date.
(d) All transfer (including real property transfer), stamp, issuance, sales, use, filing, recording, documentary, value added, ad valorem or similar taxes or governmental fees or assessments (collectively, and including any penalties and interest, “Transfer Taxes”) incurred in connection with an Acquisition contemplated by this Agreement shall be borne in equal parts by Purchaser and Seller. The party that is required by applicable Law to file any Tax Return with respect to Transfer Taxes shall do so, and the other party shall reasonably cooperate with respect thereto. If either party may file any such required Tax Return, Seller shall file the Tax Return and Purchaser agrees to reasonably cooperate with Seller with respect thereto.
ARTICLE 5 CONDITIONS TO CLOSING; TERMINATION
5.1 Conditions Precedent to Each Party’s Obligations to Close. The obligations of the parties to proceed with a Closing with respect to an Acquisition under this Agreement are subject to the fulfillment prior to or at such Closing of the following conditions (any one or more of which may be waived in whole or in part by all parties in their sole discretion):
(a) No Violations. The consummation of such Acquisition shall not violate any applicable Governmental Rule.
(b) No Adverse Proceeding. No order of any court or administrative agency shall be in effect which restrains or prohibits such Acquisition, and there shall not have been threatened, nor shall there be pending, any action or proceeding by or before any court or Governmental Authority challenging such Acquisition or seeking monetary relief by reason of the consummation of such Acquisition.
(c) No Termination. The obligations under this Agreement with respect to such Acquisition shall not have been terminated pursuant to Section 5.4.
(d) Other Conditions Precedent to Closing to Each Party’s Obligations. The conditions precedent, if any, set forth on Section A-3 of the Appendix relating to such Acquisition shall have been satisfied (any one or more of which may be waived in whole or in part by all parties in their sole discretion).
5.2 Conditions Precedent to the Obligations of Purchaser to Close. The obligations of the Purchaser to proceed with a Closing with respect to an Acquisition under this Agreement are
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subject to the fulfillment prior to or at such Closing of the following conditions (any one or more of which may be waived in whole or in part by the Purchaser in its sole discretion):
(a) Representations and Warranties. The representations and warranties of Seller set forth in Sections 2.1 to 2.7 (inclusive) and 2.11 with respect to such Acquisition shall be true and correct as of the Closing Date as if made at and as of such date. All other representations and warranties of Seller set forth in Article 2 with respect to such Acquisition shall be true and correct at and as of such Closing Date as if made at and as of such date (other than any representations or warranties that are qualified by materiality, including by reference to Material Adverse Effect with respect to such Acquisition, which shall be true in all respects) as though such representations and warranties were made on and as of such Closing Date, except to the extent that (i) such representations and warranties expressly relate to an earlier date, in which case as of such earlier date and (ii) the failure of such representations and warranties to be true and correct, taken in the aggregate, would not have a Material Adverse Effect with respect to such Acquisition.
(b) Performance and Compliance. Seller shall have performed, in all material respects, all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by it with respect to such Acquisition on or before such Closing.
(c) Consents. All necessary Consents relating to such Acquisition shall have been obtained, including those set forth in Part VII of Section A of the Appendix relating to such Acquisition.
(d) Certificate of Seller. The Purchaser shall have received a certificate of Seller dated the date of such Closing confirming the matters set forth in Sections 5.2(a) and (b) with respect to such Acquisition in a form reasonably acceptable to the Purchaser.
(e) Good Standing Certificate. The Purchaser shall have received a good standing certificate of Seller and the Project Company relating to such Acquisition, in each case issued by the secretary of state or equivalent local Governmental Authority of the state or local jurisdiction of its formation; provided that in the case of any entities formed under the laws of Japan, documents which are customary delivered for Japanese entities which evidence the equivalent shall be delivered in lieu of a good standing certificate.
(f) Satisfactory Instruments. All instruments and documents reasonably required on the part of Seller to effectuate and consummate such Acquisition shall be delivered to the Purchaser and shall be in form and substance reasonably satisfactory to the Purchaser.
(g) Material Contracts. Absence of any amendment to, entry into, termination or waiver (in whole or in part) of any applicable Material Contract relating to such Acquisition, except any such amendment, termination or waiver that has been approved by the Purchaser that would reasonably be expected to materially and adversely affect the Project or any applicable HoldCo.
(h) Other Conditions Precedent to Seller’s Obligation to Close. The conditions precedent, if any, set forth in Part IV of Section A of the Appendix relating to such
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Acquisition shall have been satisfied or waived in whole or in part by Purchaser in Purchaser’s sole discretion.
5.3 Conditions Precedent to the Obligations of Seller to Close. The obligations of Seller to proceed with a Closing with respect to an Acquisition under this Agreement are subject to the fulfillment prior to or at such Closing of the following conditions (any one or more of which may be waived in whole or in part by Seller in its sole discretion):
(a) Purchase Price. The Purchaser shall have transferred in immediately available funds the Purchase Price for such Acquisition pursuant to, in accordance with and into the account or accounts designated in, Part I of Section A of the Appendix relating to such Acquisition.
(b) Representations and Warranties. The representations and warranties set forth in Article 3 with respect to such Acquisition shall be true and correct at and as of such Closing Date as if made at and as of such date (other than any representations or warranties that are made as of a specific date, which shall be true and correct as of such date).
(c) Performance and Compliance. The Purchaser shall have performed, in all material respects, all of the covenants and complied with all the provisions required by this Agreement to be performed or complied with by it with respect to such Acquisition on or before such Closing.
(d) Certificate of Purchaser. Seller shall have received a certificate of the Purchaser dated the date of such Closing confirming the matters set forth in Sections 5.3(b) and (c) relating to such Acquisition in a form reasonably acceptable to Seller.
(e) Satisfactory Instruments. All instruments and documents required on the part of the Purchaser to effectuate and consummate such Acquisition shall be delivered to Seller and shall be in form and substance reasonably satisfactory to Seller.
(f) Other Conditions Precedent to Seller’s Obligation to Close. The conditions precedent, if any, set forth in Section A-5 of the Appendix relating to such Acquisition shall have been satisfied or waived in whole or in part by Seller in Seller’s sole discretion.
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(a) By the Parties. The obligations of the parties under this Agreement with respect to an Acquisition may be terminated at any time prior to the Closing for such Acquisition by mutual written consent of Purchaser and Seller.
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ARTICLE 6 REMEDIES FOR BREACHES OF THIS AGREEMENT
| (i) | any breach by Seller of any representation or warranty made by it in Article 2 with respect to such Acquisition (solely with respect to the Acquisition of the Otsuki Project, subject to any applicable Updated Disclosure Schedules delivered pursuant to Appendix C that are deemed to cure a breach of any representation or warranty in accordance with the last sentence of the section entitled “Updating of Disclosure Schedules” in Part VII in Section A of Appendix C) or any breach or violation of any covenant, agreement or obligation of Seller contained herein relating to such Acquisition; |
| (ii) | Covered Taxes; and |
| (iii) | as set forth in Part VI of Section A of the Appendix for such Acquisition. |
| (i) | any breach by the Purchaser of any representation or warranty made by it in Article 3 with respect to such Acquisition or any breach or violation of any covenant, agreement or obligation of the Purchaser contained herein relating to such Acquisition; and |
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| (ii) | as set forth in Part VI of Section A of the applicable Appendix for such Acquisition. |
6.2 Limitations on Seller’s or Purchaser’s Indemnification.
(a) Minimum Limit on Claims. A party required to provide indemnification under this Article 6 (an “Indemnifying Party”) with respect to an Acquisition shall not be liable under this Article 6 to an Indemnified Party for any Claim for breach of any representation or warranty with respect to such Acquisition unless and until the aggregate amount of all Claims with respect to such Acquisition for which it would, in the absence of this provision, be liable exceeds the Basket Amount for such Acquisition, and in such event the Indemnified Party will be liable for the amount of all Claims with respect to such Acquisition, including the applicable Basket Amount; provided that the foregoing limitation shall not apply in the case of actual fraud or willful misrepresentation by the Indemnifying Party with respect to such Acquisition or, for the avoidance of doubt, to Covered Taxes.
(b) Maximum Limit on Claims.
| (i) | Limitation on Seller’s Liability. Seller’s maximum aggregate liability for Claims for breaches of representations and warranties under this Agreement with respect to an Acquisition is limited to Seller’s Maximum Liability set forth in Part VI of Section A of the applicable Appendix for such Acquisition; provided that the Seller’s Maximum Liability will not apply to any Claim based on (A) actual fraud or willful misrepresentation with respect to such Acquisition, (B) any breach of the representations and warranties set forth in Sections 2.1, 2.2, 2.3, 2.5, 2.6, 2.9, 2.11 and 2.18 (solely with respect to the Indebtedness of the Project Company relating to such Acquisition) or (C) for the avoidance of doubt, Covered Taxes. |
| (ii) | Limitation on Purchaser’s Liability. The Purchaser’s maximum aggregate liability for Claims for breaches of representations and warranties under this Agreement with respect to an Acquisition is limited to the Purchaser’s Maximum Liability set forth in Part VI of Section A of the Appendix for such Acquisition; provided that the Purchaser’s Maximum Liability will not apply to any Claim based on (A) actual fraud or willful misrepresentation with respect to such Acquisition or (B) any breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.5 and 3.10 with respect to such Acquisition. |
(c) Time Limit for Claims. No Indemnified Party may make a Claim for indemnification under Section 6.1 in respect of any Claim unless notice in writing of the Claim, incorporating a statement setting out in reasonable detail the grounds on which the Claim is based, has been given by the Indemnified Party prior to the expiration of the applicable Survival Period as set forth in Part VI of Section A of the Appendix relating to the applicable Acquisition.
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6.3 Reimbursements; Refunds.
(a) Right of Reimbursement. Subject to Part VI of Section A of the applicable Appendix, the amount of Losses payable under Section 6.1 by an Indemnifying Party shall be net of any amounts recovered by the Indemnified Party under applicable insurance policies or from any other Person responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person responsible for any Losses subsequent to an indemnification payment by the Indemnifying Party and such amounts would result in a duplicative recovery, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.
(b) Other Refund Obligations. In addition to the obligations set forth in Section 6.3(a), the applicable Indemnified Party shall be obligated to reimburse or refund to the Indemnifying Party for payments made by it to such Indemnified Party under this Article 6 with respect to an Acquisition as set forth in Part VI of Section A of the Appendix for such Acquisition.
6.4 Mitigation; Treatment of Indemnification.
(a) The Indemnified Party shall use commercially reasonable efforts to mitigate all Losses relating to a Claim for which indemnification is sought under this Article 6.
(b) All indemnification payments under this Article 6 with respect to an Acquisition shall be deemed adjustments to the Purchase Price for such Acquisition.
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(a) No party shall assign this Agreement or any of its rights or obligations herein without the prior written consent of the other parties, in their sole discretion, except as provided herein and except that any party may assign this Agreement or any of its rights or obligations herein to an Affiliate of such party but the assigning party shall continue to be liable for all of its obligations hereunder following any such assignment. Subject to the foregoing, this Agreement, and all rights and powers granted hereby, will bind and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(b) Notwithstanding Section 7.3(a), each of Seller and Purchaser may assign its rights and obligations under this Agreement with respect to an Acquisition without the consent of the other parties as specified in Part VII of Section A of the Appendix relating to such Acquisition.
7.4 Jurisdiction; Service of Process; Waiver of Jury Trial.
(a) EACH OF THE PARTIES HERETO WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(b) Any and all claims, counterclaims, demands, causes of action, disputes, controversies, and other matters in question arising out of or relating to this Agreement, or the alleged breach hereof, or in any way relating to the subject matter of this Agreement or the relationship between the parties created by this Agreement (hereafter, a “Dispute”), except for
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any claims for specific performance as set forth in Section 7.15, shall be finally resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA Commercial Arbitration Rules, including the Procedures for Large, Complex Commercial Disputes (the “Rules”) then in force to the extent such Rules are not inconsistent with the provisions of this Agreement. The party or parties commencing arbitration shall deliver to the other party or parties a written notice of intent to arbitrate (a “Demand”) in accordance with Rule R-4. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq.
| (i) | Selection of Arbitrators. Disputes shall be resolved by a panel of three independent and impartial arbitrators, (the “Arbitrators”). The party or parties initiating the arbitration shall appoint an arbitrator in its or their Demand; the responding party or parties shall appoint an arbitrator in its or their answering statement, which is due thirty (30) days after receipt of the Demand. If any party fails or refuses to timely nominate an arbitrator within the time permitted, such arbitrator shall be appointed by the AAA from individuals with significant experience in renewable energy projects from its Large, Complex Commercial Case Panel. Within thirty (30) days of the appointment of the second arbitrator, the two party-appointed arbitrators shall appoint the third arbitrator, who shall act as the chair of the arbitration panel. If the two party-appointed arbitrators fail or refuse to appoint the third arbitrator within such thirty (30)-day period, the third arbitrator shall be appointed by the AAA from individuals with significant experience in renewable energy projects from its Large, Complex Commercial Case Panel in accordance with Rule R-12. The Arbitrators, acting by majority vote, shall resolve all Disputes. |
| (ii) | Confidentiality. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the parties. |
| (iii) | Place of Arbitration. The place of arbitration shall be New York, New York. Any action in connection therewith shall be brought in the United States District Court for the Southern District of New York or, if that court does not have jurisdiction, any New York state court in New York County. Each party consents to the exclusive jurisdiction of such courts in any such suit, action or proceeding, and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Each party further agrees to accept service of process out of any of the before mentioned courts in any such dispute by registered or certified mail addressed to the party at the address set forth in Part VII of Section A. |
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| (iv) | Conduct of the Arbitration. The arbitration shall be conducted in accordance with the Rules and in a manner that effectuates the parties’ intent that Disputes be resolved expeditiously and with minimal expense. The Arbitrators shall endeavor to commence the arbitration hearing within one hundred and eighty (180) days of the third arbitrator’s appointment. |
| (v) | Interim Relief. Any party may apply to the Arbitrators seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Any party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the Arbitrators’ determination of the merits of the controversy). |
| (vi) | Discovery. The Arbitrators, upon a showing of good cause, may require and facilitate such limited discovery as it shall determine is appropriate in the circumstances, taking into account the needs of the parties, the burden on the parties, and the desirability of making discovery limited, expeditious, and cost-effective. The Arbitrators shall issue orders to protect the confidentiality of proprietary information, trade secrets and other sensitive information disclosed in discovery. |
| (vii) | Arbitration Award. The Arbitrators shall endeavor to issue a reasoned, written award within thirty (30) days of the conclusion of the arbitration hearing. The Arbitrators shall have the authority to assess some or all of the costs and expenses of the arbitration proceeding (including the Arbitrators’ fees and expenses) against any party. The Arbitrators shall also have the authority to award attorneys’ fees and expenses to the prevailing party or parties. In assessing the costs and expenses of the arbitration and/or awarding attorneys’ fee and expenses, the Arbitrators shall consider the relative extent to which each party has prevailed on the disputed issues and the relative importance of those issues. The limitations of Section 7.14 shall apply to any award by the Arbitrators. |
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Purchase and Sale Agreement as of the day and year first above written.
PATTERN ENERGY GROUP INC.
/s/ Xxxxx Xxxxxx By: Xxxxx Xxxxxx Its: Vice President |
[Signature Page to Purchase and Sale Agreement]
GREEN POWER INVESTMENT CORPORATION
/s/ Xxxxxxx Xxxxxx By: Xxxxxxx Xxxxxx Its: President |
[Signature Page to Purchase and Sale Agreement]
EXHIBIT A: GENERAL DEFINITIONS (as applicable and to the extent used in the final Agreement)
“AAA” shall have the meaning set forth in Section 7.4(b).
“Acquisition” shall have the meaning set forth in Section 1.1.
“Acquired Interests” means, with respect to an Acquisition, the Acquired Interests defined and described in Part I of Section B of the Appendix for such Acquisition.
“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the Person specified, or who holds or beneficially owns 50% or more of the equity interest in the Person specified or 50% or more of any class of voting securities of the Person specified; provided that notwithstanding the foregoing (a) Purchaser and its Subsidiaries shall not be deemed to be Affiliates of Seller and (b) Seller and its Affiliates (other than Purchaser and its Subsidiaries) shall not be deemed to be Affiliates of the Purchaser.
“Agreement” shall have the meaning set forth in the preamble to this Agreement.
“Antisocial Activities” means, collectively, (i) making violent demands; (ii) making wrongful demands beyond legal liability; (iii) engaging in threatening or violent behavior in relation to transactions; (iv) damaging the trust of parties to a transaction or obstructing business by spreading rumors or using fraudulent means or force; and (v) any other actions equivalent to items (i) through (iv).
“Antisocial Forces” means entities or persons that are (i) gangster crime groups (“bouryokudan” as defined under Article 2(ii) of the Act on Prevention of Unjust Acts by Organized Crime Group Members (Act No. 77 of 1991, including subsequent revisions; hereinafter, the “Act on Prevention of Unjust Acts by Organized Crime Group Members”)); (ii) members of gangster crime groups (“bouryokudan in” as defined under Article 2(vi) of the Act on Prevention of Unjust Acts by Organized Crime Group Member; hereinafter the same) or former gangster crime groups members for whom fewer than five years having passed since separation; (iii) associate members of gangster crime groups; (iv) companies affiliated with gangster crime groups; (v) extortionist (soukaiya) racketeer groups; (vi) groups conducting criminal activities under the pretext of social campaigns; (vii) crime groups specialized in intellectual crimes; (viii) other entities equivalent to items (i) through (vii); (ix) companies whose management is influenced by a person to which any of items (i) through (viii) apply (hereinafter, “Gang Members”); (x) companies whose management materially involves Gang Members; (xi) persons who wrongfully engage Gang Members for the purpose of gaining unjust profit for themselves, their company or a third party or for the purpose of harming a third party; (xii) persons who provide funds or assistance to or are otherwise involved with Gang Members; and (xiii) companies whose directors or other persons materially involved in their management have socially unacceptable relationships with Gang Members.
“Arbitrators” shall have the meaning set forth in Section 7.4(b).
EX A - 1
“Basket Amount” shall have the meaning set forth in Part VI of Section A of the applicable Appendix.
“Books and Records” means books, Tax Returns, contracts, commitments, and records of a Person.
“Business Day” means any day other than a Saturday, a Sunday or any other day on which banks are authorized to be closed in New York, New York or Tokyo, Japan.
“Claim” means a claim by an Indemnified Party for indemnification pursuant to Section 6.1.
“Closing” shall have the meaning set forth in Section 1.4.
“Closing Date” shall mean the date the Closing occurs.
“Closing Notice” shall have the meaning set forth in Section 5.6.
“Code” shall mean the United States Internal Revenue Code of 1986, as amended.
“Consent” means any consent, approval, order or Permit of or from, or registration, declaration or filing with or exemption by any Person, including any Governmental Authority.
“Contract” means any agreement, lease, license, obligation, plan, arrangement, purchase order, commitment, evidence of indebtedness, mortgage, indenture, security agreement or other contract (whether written or oral) entered into by a Person or by which a Person or any of its assets are bound.
“Covered Tax” means any (a) Tax of HoldCo and its Subsidiaries related to a Pre-Closing Tax Period and (b) liability for the payment of any amount of Tax as a result of being or having been before the Closing a member of an affiliated, consolidated, combined or unitary group, or a party to any agreement or arrangement, as a result of which liability of HoldCo or any of its Subsidiaries is determined or taken into account with reference to the activities of any other Person.
“Demand” shall have the meaning set forth in Section 7.4(b).
“Dispute” shall have the meaning set forth in Section 7.4(b).
“Dollars” or “$” means the lawful currency of the United States of America.
“Environmental Claim” means any suit, action, demand, directive, claim, Lien, written notice of noncompliance or violation, allegation of liability or potential liability, or proceeding made or brought by any Person in each case (a) alleging any liability under or violation of or noncompliance with any applicable Environmental Law, (b) with respect to the release of or exposure to Hazardous Substances, or (c) with respect to noise pollution or visual impacts, including shadow flicker.
EX A - 2
“Environmental Law” means any Law pertaining to the environment, natural resources, human health and safety in connection with exposure to Hazardous Substances, and physical and biological natural resources, including but not limited to the Soil Contamination Countermeasures Act of Japan (Act No. 53 of May 29, 2002) and Waste Management and Public Cleansing Act (Law No. 137 of 1970).
“ERISA” means the Employment Retirement Income Security Act of 1974, as amended.
“Financial Model” means the financial model for the applicable Project.
“Financial Statements” means, with respect to the applicable Project, the annual unaudited consolidated statement of operations of such Project for the year ended December 31, 2017 and the related balance sheet as at December 31, 2017, prepared in accordance with GAAP.
“GAAP” means generally accepted accounting principles used by the applicable Project Company to prepare the Financial Statements, consistently applied throughout the specified period.
“Governmental Authority” means any federal or national, state, provincial, county, municipal or local government or regulatory or supervisory department, body, political subdivision, commission, agency, instrumentality, ministry, court, judicial or administrative body, taxing authority, or other authority thereof (including any corporation or other entity owned or controlled by any of the foregoing) having jurisdiction over the matter or Person in question, including the Ministry of Economy, Trade and Industry of Japan and the Bank of Japan.
“Governmental Rule” means, with respect to any Person, any applicable law, statute, treaty, rule, regulation, ordinance, order, code, judgment, decree, protocol, operating guide, injunction or writ issued by any Governmental Authority.
“Hazardous Substances” means all substances, materials, chemicals, wastes or pollutants that are defined, regulated, listed or prohibited under Environmental Law, including without limitation, (i) asbestos or asbestos containing materials, radioactive materials, lead, and polychlorinated biphenyls, any petroleum or petroleum product, solid waste, mold, mycotoxin, urea formaldehyde foam insulation and radon gas; (ii) any waste or substance that is listed, defined, designated or classified as, or otherwise determined by any Environmental Law to be, ignitable, corrosive, radioactive, dangerous, toxic, explosive, infectious, radioactive, mutagenic or otherwise hazardous; (iii) any pollutant, contaminant, waste, chemical, deleterious substances or other material or substance (whether solid, liquid or gas) that is defined as a “solid waste,” “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,” “contaminant,” “hazardous constituent,” “special waste,” “toxic substance,” or a word, term, or phrase of similar meaning or regulatory effect under any Environmental Law.
“HoldCo” means, with respect to the applicable Project, the entities set forth on Part I of Section B of the Appendix applicable to such Project; provided that if no HoldCo is specified, for purposes of this Agreement the applicable Project Company shall be deemed to be the HoldCo for such Project.
EX A - 3
“Indebtedness” means all obligations of a Person (a) for borrowed money (including principal, accrued and unpaid interest, fees due, and any other amounts due), whether or not contingent, (b) evidenced by notes, bonds, debentures, mortgages or similar instruments or debt securities, (c) for the deferred purchase price of property, goods or services (other than trade payables or accruals incurred in the ordinary course of business and not past due), including all seller notes and “earn out” payments, (d) under capital leases, (e) secured by a Lien on the assets of such Person, whether or not such obligation has been assumed by such Person, (f) with respect to reimbursement obligations for letters of credit, performance bonds and other similar instruments (whether or not drawn), (g) under any interest rate, currency or other hedging agreement (including collars) or commitment therefor, (h) to repay deposits or other amounts advanced by and owing to third parties, (i) under conditional sale or other title retention agreements relating to property purchased by such Person, (j) in the nature of guaranties of the obligations described in clauses (a) through (i) above of any other Person or as to which such Person has an obligation substantially the economic equivalent of a guaranty, or (k) in respect of any other amount properly characterized as indebtedness in accordance with GAAP.
“Indemnified Party” means either a Purchaser Indemnified Party or a Seller Indemnified Party, as the case may be.
“Indemnifying Party” shall have the meaning set forth in Section 6.2(a).
“Intellectual Property” means all intellectual property rights, including, without limitation, (a) patents, patent applications, patent disclosures and inventions, (b) Internet domain names, trademarks, trade names, service marks, trade dress, trade names, logos and corporate names and registration and applications for registration of any item listed in clause (b), together with all of the goodwill associated therewith, (c) copyrights (registered or unregistered), works of authorship and copyrightable works, and registrations and applications for registration of any item in this clause (c), (d) computer software (whether in source code, object code or other form), data, databases and any documentation related to any item listed in this clause, (e) trade secrets and other confidential information (including confidential and proprietary know how, ideas, formulas, compositions, recipes, inventions (whether patentable or unpatentable and whether or not reduced to practice), manufacturing and production processes, procedures and techniques, research and development information, drawings, blueprints, specifications, designs, plans, proposals, technical data, financial and marketing plans and customer and supplier lists and information), (f) all rights of privacy and publicity, (g) other intellectual property rights and (h) copies and tangible embodiments thereof (in whatever form or medium).
“Kanagi Project” means the solar project located in the Shimane Prefecture of Japan, as more fully described on Part II of Section B of the Appendix applicable to such project.
“Knowledge” means (a) with respect to Seller, the actual knowledge of the persons identified in Part VII of Section A of the applicable Appendix, which shall include at a minimum (i) the senior developer responsible for each Project, (ii) the construction manager responsible for each Project, (iii) the transaction counsel responsible for the financing of each Project and (iv) the finance manager responsible for the financing of each Project and (b) with respect to the Purchaser, the actual knowledge of the persons identified in Part VII of Section A of the applicable Appendix.
EX A - 4
“Laws” means all common law, laws, by-laws, statutes, treaties, rules, Orders, rulings, decisions, judgments, injunctions, awards, decrees, codes, ordinances, standards, regulations, restrictions, official guidelines, policies, directives, interpretations, Permits or like action having the effect of law of any Governmental Authority.
“Lease” means a lease, ground lease, sublease, license, concession, easement, right of way, encroachment agreement, municipal right of way agreements, and road user agreements or other written agreement, including any option relating thereto, in each case, governing real property, to which the Project Company for an Acquisition or any of its Subsidiaries is a party.
“Lien” on any asset means any mortgage, deed of trust, lien, hypothec, pledge, charge, security interest, restrictive covenant, right of first refusal, right of first offer, easement or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected or effective under applicable law, as well as the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.
“Loss” means any and all losses (including loss of profit and loss of expected profit), claims, actions, liabilities, damages, expenses, diminution in value or deficiencies of any kind or character including all interest and other amounts payable to third parties, all liabilities on account of Taxes and all reasonable legal fees and expenses and other expenses reasonably incurred in connection with investigating or defending any claims or actions, whether or not resulting in any liability.
“Material Adverse Effect” means, with respect to an Acquisition, any circumstance, matter, condition, development, change, event, occurrence, state of affairs, or effect that, individually or in the aggregate, is or would reasonably be expected to have a material adverse effect on (a) the business, results of operations, assets or liabilities, financial condition or properties of any the Project Company for such Acquisition or its Subsidiaries, taken as a whole, or (b) the ability of Seller to consummate the transactions contemplated by this Agreement with respect to such Acquisition or otherwise perform any of its obligations under this Agreement with respect to such Acquisition; provided, however, none of the following shall be deemed (either alone or in combination) to constitute, and none of the following shall be taken into account in determining whether there has been, a Material Adverse Effect:
(a) any change in general economic, political or business conditions;
(b) changes resulting from acts of war or terrorism or any escalation or worsening of any such acts of war or terrorism threatened or underway as of the date of this Agreement;
(c) changes or developments generally affecting the power services industry;
(d) any changes in accounting requirements or principles imposed by GAAP after the date of this Agreement;
(e) any changes in applicable Law after the date of this Agreement; or
EX A - 5
(f) changes in the wind or solar power industry, as applicable, that, in each case, generally affect companies in such industry;
provided that the incremental extent of any disproportionate change, event, occurrence, development, effect, condition, circumstance or matter described in clauses (a) through (f) with respect to the Project Company for such Acquisition, relative to other similarly situated businesses in the wind or solar power industry, as applicable, may be considered and taken into account in determining whether there has been a Material Adverse Effect.
“Material Contract” means, with respect to an Acquisition, (i) any Material Lease to Acquisition, (ii) the Contracts set forth in Part I, III, IV and V of Section C of the Appendix relating to such Acquisition and (iii) any other Contract to which the Project Company for such Acquisition or any of its Subsidiaries is a party or by which any such Person, or any of their respective assets, is bound (A) providing for past or future payments by or to any such Person in excess of $500,000 (or its Japanese Yen equivalent) annually or $1,000,000 (or its Japanese Yen equivalent) in the aggregate, (B) relating to any partnership, joint venture or other similar arrangement, (C) relating to any Indebtedness, (D) limiting the freedom of any such Person compete in any line of business or with any Person or in any area or granting “most favored nation” or similar status, (E) with either Seller or any of such Seller’s Affiliates, (F) with Purchaser or any of its Affiliates, (G) relating to the acquisition or disposition of any business or material portion thereof (whether by merger, sale of stock, sale of assets or otherwise), (H) that was not entered into in the ordinary course of business of any such Project Company, or (I) the loss of which would result in a Material Adverse Effect.
“Material Contract Change” shall have the meaning set forth in Section 4.1(a).
“Material Leases” means, with respect to an Acquisition, all Leases (i) the loss of which would result in a reduction in production of such Project or in its ability to deliver energy to the point of interconnection or would otherwise result in a Material Adverse Effect, or (ii) that are otherwise material to the operations of such Project, in each of clauses (i) and (ii), other than Leases that primarily relate to a Project Company that is not the subject of such Acquisition.
“Ohorayama Project” means the wind project located in the Kochi Prefecture of Japan, as more fully described on Part II of Section B of the Appendix applicable to such project.
“Order” means any writ, judgment, injunction, ruling, decision, order or similar direction of any Governmental Authority, whether preliminary or final.
“Organization Documents” means, with respect to (a) any corporation, its articles or certificate of incorporation and by-laws, (b) any limited partnership, its certificate or declaration of limited partnership and its partnership agreement, (c) any limited liability company, its articles or certificate of organization or formation and its operating agreement, members agreement or limited liability company agreement, or (d) any other Person, documents of similar substance.
“Otsuki Project” means the wind project located in the Kochi Prefecture of Japan, as more fully described on Part II of Section B of the Appendix applicable to such project.
EX A - 6
“Outside Closing Date” shall have the meaning set forth in Part III of Section A of the applicable Appendix.
“Permitted Lien” means any of the following: (a) Liens for Taxes either not yet due and payable or being contested in good faith through appropriate proceedings and for which adequate reserves have been established in the Project Company’s balance sheet in accordance with GAAP; (b) inchoate mechanics’ and materialmen’s Liens for construction in progress and workmen’s, repairmen’s, warehousemen’s and carrier’s Liens arising in the ordinary course of business either for amounts not yet due or which have not been perfected, filed or registered in accordance with applicable Law against any applicable Project Company, any Project or the Project Company Real Property; (c) as to any applicable Project Company Real Property, title defects, easements, rights of first refusal, restrictions, irregularities, encumbrances (other than for borrowed money), encroachments, servitudes, rights of way and statutory Liens that do not or would not reasonably be expected to materially impair the value or use by the applicable Project Company of the Project Company Real Property; (d) security given to a public utility or any Governmental Authority when required by such utility or authority in connection with the operations of any applicable Project Company in the ordinary course of business.
“Permit” means, with respect to a Project, filings, registrations, licenses, permits, notices, technical assistance letters, decrees, certificates, approvals, consents, waivers, Orders, authorizations, agreements, directions, instructions, grants, easements, exemptions, exceptions, variances and authorizations to or from any Governmental Authority.
“Person” means any individual, corporation, partnership, limited partnership, limited liability partnership, trust, business trust, estate, joint venture, unincorporated association, limited liability company, cooperative, Governmental Authority or other entity.
“Personal Property” means, with respect to an Acquisition, all office equipment, machinery, equipment, supplies, vehicles, tractors, trailers, tools, spare parts, production supplies, furniture and fixtures and other items of tangible personal property owned by the Project Company for such Project or its Subsidiaries, other than office equipment, machinery, equipment, supplies, vehicles, tractors, trailers, tools, spare parts, production supplies, furniture and fixtures and other items of tangible personal property that primarily relate to a Project Company that is not the subject of such Acquisition.
“Post-Closing Adjustment” shall have the meaning set forth in Part I of Section A of the applicable Appendix.
“Post-Closing Period” means the period commencing on the Closing Date.
“Post-Closing Tax Period” means any Tax period beginning after the Closing Date; and, with respect to a Straddle Tax Period, the portion of such Tax period beginning after the Closing Date.
“Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date; and, with respect to a Straddle Tax Period, the portion of such Tax period ending on the Closing Date.
“Project” means each of the Kanagi Project, the Otsuki Project and the Ohorayama Project.
EX A - 7
“Project Company” means each of the Kanagi Project Company, the Otsuki Project Company and the Ohorayama Project Company.
“Project Company Real Property” means, with respect to an Acquisition, all real property of the Project Company relating to such Acquisition or its Subsidiaries, together with all buildings, structures, improvements and fixtures thereon relating to such Acquisition, (i) held by such Project Company or its Subsidiaries pursuant to a Material Lease or (ii) required to be set forth on Part II of Section B of the Appendix for such Project.
“Purchase Price” shall have the meaning set forth in Section 1.1, and is more particularly described in Part I of Section A of the applicable Appendix.
“Purchase Price Adjustment” shall have the meaning set forth in Part I of Section A of the applicable Appendix.
“Purchase Rights Agreements” means that certain Amended and Restated Purchase Rights Agreement dated as of June 16, 2017 by and among Pattern Energy Group LP, Pattern Energy Group Inc. and, solely with respect to Article IV thereof, Pattern Energy Group Holdings LP and Pattern Energy GP LLC, as such agreement is amended, modified or supplemented in accordance with its terms.
“Purchaser” shall have the meaning set forth in the preamble to this Agreement.
“Purchaser Indemnified Party” shall have the meaning set forth in Section 6.1(a).
“Purchaser’s Maximum Liability” shall have the meaning set forth in Part VI of Section A of the applicable Appendix.
“Rules” shall have the meaning set forth in Section 7.4(b).
“Securities Act” shall have the meaning set forth in Section 2.10.
“Seller” shall have the meaning set forth in the preamble to this Agreement.
“Seller Indemnified Party” shall have the meaning set forth in Section 6.1(b).
“Seller’s Maximum Liability” shall have the meaning set forth in Part VI of Section A of the applicable Appendix.
“Straddle Tax Period” means a Tax period that begins on or before the Closing Date and ends thereafter.
“Subsidiary” means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.
EX A - 8
“Survival Period” shall have the meaning set forth in Part VI of Section A of the applicable Appendix.
“Tax” or “Taxes” means, collectively all federal, state and local or foreign income, estimated, payroll, withholding, excise, sales, goods and services, harmonized, value-added, use, real and personal property, corporation, use and occupancy, business and occupation, mercantile, transfer, capital stock and franchise or other taxes, levies, duties, assessments, reassessments or other charges of any kind whatsoever (including interest, additions and penalties thereon), whether disputed or not.
“Tax Return” means any return, declaration, notice, form, report, claim for refund or information return or statement relating to the determination, assessment, collection or payment of Taxes or to the administration, implementation or enforcement of or compliance with any legal requirement pertaining to Taxes, including, for greater certainty, any schedule or attachment thereto.
EX A - 9
EXHIBIT B: RULES OF CONSTRUCTION
| 1. | The singular includes the plural and the plural includes the singular. |
| 2. | The word “or” is not exclusive. |
| 3. | A reference to a Governmental Rule includes any amendment or modification to such Governmental Rule, and all regulations, rulings and other Governmental Rules promulgated under such Governmental Rule. |
| 4. | A reference to a Person includes its successors and permitted assigns. |
| 5. | Accounting terms have the meanings assigned to them by GAAP, as applied by the accounting entity to which they refer. |
| 6. | The words “include,” “includes” and “including” are not limiting and shall be deemed to mean “include, without limitation”, “includes, without limitation” or “including, without limitation”. |
| 7. | A reference to an Article, Section, Exhibit, Schedule or Appendix is to the Article, Section, Exhibit, Schedule or Appendix of this Agreement unless otherwise indicated. |
| 8. | Any reference to “this Agreement”, “hereof,” “herein” and “hereunder” and words of similar import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. |
| 9. | Any reference to another agreement or document shall be construed as a reference to that other agreement or document as the same may have been, or may from time to time be, varied, amended, supplemented, substituted, novated, assigned or otherwise transferred. |
| 10. | References to “days” shall mean calendar days, unless the term “Business Days” shall be used. References to a time of day shall mean such time in New York, New York, unless otherwise specified. |
| 11. | This Agreement is the result of negotiations among, and has been reviewed by, Seller, Purchaser, and their respective counsel. Accordingly, this Agreement shall be deemed to be the product of the parties thereto, and no ambiguity shall be construed in favor of or against either Seller or Purchaser. |
| 12. | The words “will” and “shall” shall be construed to have the same meaning and effect. |
EX B - 1
appendix A
Section a: Transaction Terms and Conditions
| Kanagi Transaction - GPI | |
I. Purchase Price
| |
| “Purchase Price”: | As set forth on Schedule 1.01
|
| Currency: | US Dollars, or where otherwise provided, Japanese Yen.
|
“Purchase Price Adjustment”:
| The Purchase Price Adjustment at Closing shall be calculated to maintain the after tax IRR (which shall be denominated in Japanese Yen) in the Financial Model (assuming internal use of any tax benefits) of the Purchaser based on the updated Financial Model delivered pursuant to Section 1.5(a)(iii), which has been updated solely to reflect the following:
(i) change in the timing of Closing and the amount and date of the initial distribution to the Purchaser (considering any distributions received by the Seller prior to Closing and with the Seller leaving a reasonable amount of working capital in the project to fund near-term payables);
(ii) changes to reflect amendments to or new Material Contracts that have an economic impact on the Project (including the terms of any project debt and tax equity financing and changes to the length of the term of any power purchase agreement);
(iii) changes in the amounts and timing of material acquired assets and liabilities not associated with operating the business in the ordinary course, including post-construction refunds, reserve amounts, outstanding debt balances, capital expenditures, etc.; and
(iv) manifest errors.
|
| Post-Closing Adjustment: | None |
| Deferred Purchase Price: | None |
Payment Mechanics and Payee Information:
| Seller
Bank:
Account #:
Account Name:
SWIFT:
|
II. Signing Date Deliverables
| |
Seller’s Signing Date Deliverables:
| Duly executed copies of:
· Purchase and Sale Agreement by and between Purchaser and
|
1
| Seller related to Purchaser’s acquisition of the membership interest of Green Power Tsugaru GK (the “Tsugaru GPI PSA”) | |
| Purchaser’s Signing Date Deliverables: | Duly executed copies of:
· the Tsugaru GPI PSA;
· Purchase and Sale Agreement by and between Purchaser and the Pattern Energy Group LP (“LP1”) related to Purchaser’s acquisition of the membership interests of XX Xxxxx Power Kanagi, XX Xxxxx Power Otsuki and XX Xxxxx Power Futtsu (the “LP1 PSA”);
· Purchase and Sale Agreement by and between Purchaser and the LP1 related to Purchaser’s acquisition of the membership interest of Green Power Tsugaru GK (the “Tsugaru LP1 PSA”); and
· Deferred Payment Agreement by and between Purchaser and LP1.
|
III. Closing
| |
Closing Location:
| At the offices of Purchaser:
Xxxx 0, Xxx 0
Xxx Xxxxxxxxx, XX 00000
|
| Expected Closing Date: | Xxxxx 0, 0000 |
Xxxxxxx Closing Date:
| June 30, 2018 |
IV. Closing Deliverables & Conditions Precedent to Closing
| |
| Additional Closing Deliverables of Seller: | In addition to the closing deliverables set forth in Section 1.5(a) of the Agreement, Seller shall deliver, or cause to be delivered, to Purchaser the additional closing deliverables set forth in Exhibit A-1.
|
| Additional Closing Deliverables of Purchaser: | In addition to the closing deliverables set forth in Section 1.5(b) of the Agreement, Purchaser shall deliver, or cause to be delivered, to Seller the additional closing deliverables set forth in Exhibit A-2.
|
| Additional Conditions Precedent to Each Party’s Obligations to Close: | In addition to the conditions precedent set forth in Section 5.1 of the Agreement, the obligation of Purchaser and Seller to Close is subject to the additional conditions precedent set forth in Exhibit A-3.
|
| Additional Conditions Precedent to Purchaser’s Obligations to Close: | In addition to the conditions precedent set forth in Section 5.2 of the Agreement, the obligation of Purchaser to Close is subject to the additional conditions precedent set forth in Exhibit A-4.
|
| Additional Conditions Precedent to Seller’s Obligations to Close: | In addition to the conditions precedent set forth in Section 5.3 of the Agreement, the obligation of Seller to Close is subject to the additional conditions precedent set forth in Exhibit A-5.
|
V. Additional Termination Rights
| |
By Either Purchaser or Seller:
| None
|
By Purchaser:
| Purchaser shall have the right to terminate this Agreement with respect to
|
2
all of the Acquisitions without any liability or payment, at any time prior to the occurrence of the Closing hereunder, if:
· any of the LP1 PSA, Tsugaru LP1 PSA, or Tsugaru GPI PSA is terminated for any reason prior to the closing of the Acquisitions (as defined therein) contemplated thereby.
| |
By Seller:
| None
|
VI. Indemnification Provisions
| |
Additional Seller Indemnity Obligations:
| If Purchaser is entitled to receive indemnification from LP1 under the LP1 PSA with respect to (1) any representations and warranties with respect to the Kanagi Project and the Kanagi Project Company and its Subsidiaries (the “Kanagi Representations”) and/or (2) any covenants contained in Article 4 of the LP1 PSA to the extent relating to the Kanagi Project Company and its Subsidiaries or the Kanagi Project (“Project Level Indemnity Obligations”) (which indemnification shall, as provided in the LP1 PSA, be determined by calculating Purchaser’s “Losses” as if LP1 had indirectly owned and sold to Purchaser both (i) the Acquired Interests (as defined in the LP1 PSA) for the Kanagi Acquisition and (ii) the Acquired Interests under this Agreement for the Kanagi Acquisition), then the aggregate amount of such indemnification payments shall be made severally and not jointly by LP1 and Seller in the following proportions: 7.66% by Seller and 92.34% by LP1; provided that the foregoing allocation shall not apply to any actual fraud or willful misrepresentation by either LP1 or Seller, and each of LP1 and Seller shall remain fully liable for its own actual fraud or willful misrepresentation as and to the extent provided for in the LP1 PSA (in the case of LP1) and this Agreement (in the case of Seller).
Solely in respect of the Kanagi Representations and the Project Level Indemnity Obligations, the foregoing indemnification by Seller shall be in lieu of any indemnification by Seller under Section 6.1(a)(i).
The Seller shall not be entitled to any control rights under Section 6.4 with respect to any Claims relating to Project Level Indemnity Obligations with respect to the Kanagi Acquisition.
|
Additional Purchaser Indemnity Obligations:
| N/A
|
Survival Period:
| Until the date that is 12 months after the Closing, except for (i) the representations and warranties in Sections 2.1, 2.2, 2.3(a), 2.6 and 2.11 and any claim for any breach of any representation or warranty involving actual fraud or willful misrepresentation, which shall survive until the expiration of the relevant statute of limitations, and (ii) the representations and warranties in Section 2.9, which shall survive until the date that is 60 days after the expiration of the period, if any, during which an assessment, reassessment or other form of recognized written demand assessing liability for Tax, interest or penalties under applicable Law in respect of any taxation year to which such representations and warranties relate could be initiated (the “Survival Period”). |
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| Representations and Warranties: | Pursuant to the LP1 PSA, LP1 is making the Kanagi Representations. Notwithstanding anything in this Agreement to the contrary, Seller is making no representations and warranties in Article II of this Agreement with respect to the subject matter of the Kanagi Representations, and the Kanagi Representations shall constitute the sole representations and warranties being made to Purchaser with respect to the Kanagi Project and the Kanagi Project Company and its Subsidiaries in connection with the transactions contemplated hereby; provided that the foregoing limitations shall not apply to any actual fraud or willful misrepresentation by the Seller. | |
| Limitation on Liability: | “Basket Amount”:
| With respect to the Kanagi Acquisition, 1.00% of the applicable Purchase Price; provided that (i) the Basket Amount shall not apply to Seller’s payment obligations relating to Project Level Indemnity Obligations, (ii) if Seller makes (or is obligated to make) any payments with respect to the Project Level Indemnity Obligations relating to breaches of the Kanagi Representations then the Basket Amount shall be deemed to have been satisfied and (iii) if Purchaser has made indemnification claims to LP1 under the LP1 PSA with respect to Project Level Indemnity Obligations relating to the Kanagi Acquisition but no indemnification payments have been made because the applicable Basket Amount has not been satisfied under the LP1 PSA, then 7.66% of the unpaid amounts so claimed shall be treated as claims under this Agreement for purposes of satisfying the Basket Amount hereunder.
|
| “Seller’s Maximum Liability”: | With respect to the Kanagi Acquisition, 11.00% of the applicable Purchase Price; provided that the amount of any payments made by Seller with respect to Project Level Indemnity Obligations relating to the Kanagi Acquisition shall, subject to the application of the proviso in Section 6.2(b)(i) of this Agreement (applied mutatis mutandis with respect to the applicable provisions of the LP1 PSA), for purposes of Section 6.2(b)(i) of this Agreement be treated as payments by Seller for Claims under this Agreement with respect to the Kanagi Acquisition.
| |
“Purchaser’s Maximum Liability”:
| With respect to the Kanagi Acquisition, 11.00% of the Purchase Price. | |
Additional Refund or Reimbursement Obligations:
| By Purchaser or Purchaser Indemnified Party: None
By either Seller or any Seller Indemnified Party: None
| |
VII. Additional Transaction Terms
|
4
| Required Governmental Approvals: | Pattern US Finance Company LLC to submit to Bank of Japan a prior notification of inward direct investment (tainai chokusetsu toshi) in regard to the investment in Green Power Generation GK pursuant to the Foreign Exchange and Foreign Trade Act of Japan. | |
| Persons with Knowledge: | Purchaser’s Persons with Knowledge: Esben Xxxxxxxx, Xxxx Xxxx and Xxxxx Xxxxxx
Seller’s Persons with Knowledge: Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxx and Xxxxxx Xxxxxxxx
| |
Additional Assignment Rights:
| Assignment Rights of Seller: None
Assignment Rights of Purchaser: None
| |
| Governing Law: | New York
| |
| Notice Information: | To Purchaser:
| Xxxx 0, Xxx 0 Xxx Xxxxxxxxx, XX 00000 Attention: General Counsel Phone: 000-000-0000 Fax: 000-000-0000
|
To Seller:
| Xxxxxxx Xxxxxxxxx 0/X 0-00-00 Xxxxxxx, Xxxxxx-xx Xxxxx, Xxxxx 107-0052 Attention: CFO and General Counsel Phone: x00 (0) 0000-0000
|
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EXHIBIT A-1:
ADDITIONAL CLOSING DELIVERABLES OF Seller
| 1. | A properly executed Assignment and Assumption Agreement between Subsidiary Purchaser and Seller transferring 7.66% of Seller’s membership interests in the Project Company. |
| 2. | Consent Letter by the Project Company for Japanese law perfection purposes. |
| 3. | Written consent of participating members regarding amendment of articles of incorporation of the Project Company. |
| 4. | Amended and restated articles of incorporation of the Project Company. |
| 5. | Written consent of all members of the Project Company which authorizes and approves the transfer of the membership interest from Seller to the Subsidiary Purchaser. |
| 6. | Documents required for the registration regarding change of the participating members of the Project Company. |
6
EXHIBIT A-2:
Additional Closing Deliverables of purchaser
Copies or originals of the following documents, each dated as of or prior to the Closing Date:
| 1. | A properly executed Assignment and Assumption Agreement between Subsidiary Purchaser and Seller transferring 7.66% of the membership interests in the Project Company. |
7
EXHIBIT A-3:
Additional Conditions Precedent to
Each Party’s Obligations to Close
| 1. | Receipt of the required Governmental Approvals (excluding the post-closing items) identified in |
Part VII of Section A.
| 2. | No circumstances, developments, changes or events has occurred since the date hereof that, individually or in the aggregate, could reasonably be expected to result in the failure of a condition to closing set forth in Article 5 of the Tsugaru LP1 PSA. |
8
EXHIBIT A-4:
ADDITIONAL CONDITIONS PRECEDENT TO
PURCHASER’S OBLIGATIONS TO CLOSE
None.
9
EXHIBIT A-5:
Additional Conditions Precedent to
SELLER’S Obligations to Close
None.
10
Section B: Acquired Interests; Ownership Structure;
and Solar Project Information
| KANAGI TRANSACTION - GPI | |
| I.Acquired Interests & Ownership Structure | |
| Project Company: | Green Power Kanagi GK, a Japanese godo kaisha |
| Holding Company (“HoldCo”): | None |
| Subsidiaries of HoldCo | None |
| Subsidiaries of Project Company | None |
| Subsidiary Purchasers | Green Power Generation GK, a Japanese godo kaisha |
| Subsidiary Transferor | None |
| Percentage of Project Company Acquired by Purchaser: | 7.66% |
| Percentage to be acquired from LP1: | 92.34%
Purchaser will indirectly acquire the remaining 92.34% of the Project Company in the aggregate that is held by Kanagi Holdings LLC, a Delaware limited liability company (46.17%) and Pattern Development Japan LLC , a Delaware limited liability company (46.17%) pursuant to the LP1 PSA.
|
| Acquired Interests: | 7.66% of the membership interests in the Project Company (the “Acquired Interests”). |
11
| Direct or Indirect Co-Owners of Project Company: | Structure Immediately Prior to the Closing
|
12
| Direct or Indirect Co-Owners of Project Company (cont.): | Structure Immediately Following the Closing
|
| XX.Xxxxx Project Information | |
| Solar Project: | Nameplate capacity: 9.8 MW
|
13
Location: Shimane Prefecture, Japan
Solar panel manufacturer: Kyocera Corporation solar panels.
| |
| Commercial Operation Date of Solar Project: | February 2016 |
| Permits & Governmental Approvals: | See attached Exhibit B-1. |
| Legal description of Solar Project site (i.e., real property description): | See attached Exhibit B-2. |
14
EXHIBIT B-1: PERMITS & GOVERNMENTAL APPROVALS
COMPLETED PERMITS
| Document | |
| 1. | FIT Law:
(a) METI Approval
(b) FIT Business Plan Approval (jigyou keikaku nintei)
|
| 2. | Electricity Business Act:
(a) Notice Regarding Construction Plan
(b) Notice Regarding Safety Rule
(c) Filing of Chief Electricity Engineer
|
| 3. | Construction Recycling Law:
Notice pursuant to the Construction Recycling Law
|
| 4. | Soil Contamination Countermeasures Act:
Notice Regarding the Change of Shape and Nature of a Land which is Larger than a Certain Area.
|
| 5. | Shimane Prefecture Guideline Concerning Land Use:
Notice Regarding Development Consultation
|
| 6. | Fire Service Act and Hamada City Ordinance on Fire Prevention:
Notice Regarding Installation of Transformers and Batteries
|
| 7. | Road Act and municipality ordinances:
Road Occupancy Permission
|
| 8. | River Act:
River Occupancy Permission
|
| 9. | Forest Act:
Notice Regarding Tree Trimming
|
| 10. | Shimane Prefecture Landscape Ordinance:
Notice Regarding Large Scale Development
|
| 11. | Road Traffic Act:
Permits to Restrict Traffic
|
| 12. | Building Standards Act
Building certification application for retaining wall of switching station at interconnection point
|
15
EXHIBIT B-2: LEGAL DESCRIPTION OF PROJECT SITE
The real estate documents listed in Article V (Real Estate Documents) of Section C (Documents & Key Counterparties) of this Appendix A are incorporated herein by reference
16
section C: Documents & Key Counterparties
| Kanagi Transaction | |
| I.Material Project Agreements & Key Counterparties | |
| Engineering, Procurement and Construction Agreement | Date: Xxxxx 0, 0000 XXXXXXX Communication Systems Co., Ltd. (“KCCS”) |
| Operation and Maintenance Agreement | Date: March 31, 2015 KCCS |
| Insurance Policy (PD/BI) | Date: May 9, 2017 Aioi Nissay Dowa Insurance Co., Ltd. |
| Insurance Policy (GL) | Date: May 9, 2017 Aioi Nissay Dowa Insurance Co., Ltd. |
| Insurance Policy (D&O) | Date: June 27, 2017 AIU Insurance Company, Ltd. |
| MOU | Regarding EPC Agreement Date: December 26, 2014 KCCS |
| Power Purchase Agreement | Date: Xxxxx 00, 0000 Xxxxxxx Electric Power Company |
| Contribution in Aid of Construction Costs Agreement | Date: December 26, 0000 Xxxxxxx Electric Power Company |
| MOU regarding Commissioning | Date: January 28, 2016 Chugoku Electric Power Company |
| Asset Management Agreement | Date: June 26, 2015 Green Power Investment Corporation (“GPI”) |
| Electricity Supply Agreement | Date: December 15, 0000 Xxxxxxx Electric Power Company |
| II.Reports, Other Deliverables and Consultants | |
| Insurance Consultant | MST Risk Consulting Co., Ltd. |
| Insurance Consultant’s Report | Insurance Consulting Report for Kanagi Solar Project dated March 24, 2015 |
| Independent Engineer | Xxxx XxxXxxxxx |
| Independent Engineer’s Report | Kanagi PV Plant Energy Yield Assessment Report dated March 2015 |
| Environmental Consultant | ITOCHU Techno-Solutions Corporation |
| Environmental Consultant’s Report | Green Power Kanagi Solar Power Plant Technical Verification Report (Environmental Verification) dated November 25, 2014 |
| III.Financing Arrangements & Key Counterparties | |
| Financing Agreement | None |
| IV.Equity and Co-Ownership Arrangements & Key Counterparties | |
| Development Fee Agreement | Date: June 26, 2015 GPI |
| V.Real Estate Documents | |
| Superficies Agreement | Date: June 2, 2014 Kanagi Kaihatsu XX Xxxxxxx 148-3, 1478-1, 1478-3, 1479-4, 1480-2, 1480-3, 1480-4, 1480-5, 1481-2, 1482-1, 1482-3, 1482-4, 1482-5, 1482-6, 1482-7, 1482-8, 1482-10, 1482-11, 1482-12, 1482-13, 1482-14, 1493-3, 1500-1, 1500-2, 1500-8, 1501-2, 1913, 1914, 1915-1, 1915-2, 1915-3, 1915-4, 1915-5, 1915-6, 1917-1, 1917-2 |
17
| Superficies Agreement | Date: August 26, 2014 Xxxxxxxx Xxxxxxxxx Kusa (ha) 355-1 |
| MOU regarding Superficies Agreement | Date: November 7, 2014 Kanagi Kaihatsu KK |
| MOU regarding Tree Trimming | Date: November 7, 2014 Kanagi Kaihatsu KK |
| MOU regarding Tree Trimming | Date: November 27, 2014 Agricultural Producers' Cooperative Corporation Kanagi Noen |
| MOU regarding Tree Trimming | Date: November 7, 2014 Xxxxxxxx Xxxxxxxxx |
| MOU regarding Tree Trimming | Date: October 30, 2014 (as amended as of March 30, 2015) Xxxxxx Xxxxxx |
| MOU regarding Tree Trimming | Date: October 15, 2014 (as amended as of March 30, 2015) Xxxxxxxx Xxxxx |
| MOU regarding Tree Trimming | Date: October 20, 2014 (as amended as of March 30, 2015) Atsuko Shikamori |
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SECTION D: AFFILIATE TRANSACTIONS
| 1. Asset Management Agreement | |
| Execution Date | June 26, 2015 |
| Parties | Project Company and Green Power Investment Corporation |
| Term | 20 years from the COD
The Project Company may request to extend the Term for 5 years or less
|
| Fee | 2,300,000 JPY per month (after COD), plus Third Party Costs and AM Costs |
| Payment Term | Monthly payment in arrears |
| Termination | In addition to typical causes of termination, the Project Company may terminate the agreement after the end of five year after the COD without paying the termination fee. |
| Services | Services related to operation, maintenance and other activities, exercise of rights and performance of obligations the Project Company |
19
appendix b
Section a: Transaction Terms and Conditions
| Ohorayama Transaction (GPI) | |
I. Purchase Price
| |
| “Purchase Price”: | As set forth on Schedule 1.01
|
| Currency: | US Dollars, or where otherwise provided, Japanese Yen.
|
“Purchase Price Adjustment”:
| The Purchase Price Adjustment at Closing shall be calculated to maintain the after tax IRR (which shall be denominated in Japanese Yen) in the Financial Model (assuming internal use of any tax benefits) of the Purchaser based on the updated Financial Model delivered pursuant to Section 1.5(a)(iii), which has been updated solely to reflect the following:
(i) changes in the final financing terms for the Project (including the terms of any project debt financing);
(ii) changes to reflect amendments to or new Material Contracts that have an economic impact on the Project;
(iii) changes in the amounts and timing of material acquired assets and liabilities not associated with operating the business in the ordinary course, including consumption tax reimbursements, system upgrades and warranty claims;
(iv) changes to the completion date of the construction from the expected date of Final Completion (as defined in that certain Balance of Plant Contract by and between the Seller and Shimizu Corporation dated December 8, 2016) as set forth in Section 3.25 hereof;
(v) change in the timing of Closing and the amount and date of the initial distribution to the Purchaser (considering any distributions received by the Seller prior to Closing and with the Seller leaving a reasonable amount of working capital in the project to fund near-term payables);
(vi) manifest errors; and
(vii) changes to the net capacity factor (NCF) directly attributable to any changes to as-built conditions.
|
| Post-Closing Adjustment: | If, after the Closing of the Acquisition of the Acquired Interests relating to the Project, Purchaser or its controlled Affiliates directly or indirectly receive one or more Term Conversion Date Distributions, Purchaser shall (or shall cause a controlled Affiliate to) promptly, and in any event within two (2) Business Days of its receipt thereof, pay Seller, as an adjustment to the Purchase Price, an amount equal to 5.01% of such Term Conversion |
1
Date Distributions.
“Term Conversion Date Distribution” has the meaning assigned to such term in that certain Credit Agreement between XX Xxxxx Power Xxxxxx as borrower, the Bank of Tokyo-Mitsubishi UFJ, Ltd., as Administrative Agent and the other parties thereto, dated December 16, 2016, or as the same may from time to time be amended with the consent of the Purchaser and Seller.
| |
| Deferred Purchase Price: | None |
Payment Mechanics and Payee Information:
| Seller
Bank: Account #: Account Name: SWIFT:
|
II. Signing Date Deliverables
| |
Seller’s Signing Date Deliverables:
| Duly executed copies of:
· Purchase and Sale Agreement by and between Purchaser and Seller related to Purchaser’s acquisition of the membership interest of Green Power Tsugaru GK (the “Tsugaru GPI PSA”), as of the date hereof
|
| Purchaser’s Signing Date Deliverables: | Duly executed copies of:
· the Tsugaru GPI PSA; · Purchase and Sale Agreement by and between Purchaser and the Pattern Energy Group LP (“LP1”) related to Purchaser’s acquisition of the membership interests of XX Xxxxx Power Kanagi, XX Xxxxx Power Otsuki and XX Xxxxx Power Futtsu (the “LP1 PSA”), as of the date hereof; · Purchase and Sale Agreement by and between Purchaser and the LP1 related to Purchaser’s acquisition of the membership interest of Green Power Tsugaru GK (the “Tsugaru LP1 PSA”), as of the date hereof; and · Deferred Payment Agreement by and between Purchaser and LP1, as of the date hereof.
|
III. Closing
| |
Closing Location:
| At the offices of Purchaser: Xxxx 0, Xxx 0 Xxx Xxxxxxxxx, XX 00000
|
| Expected Closing Date: | Xxxxx 0, 0000 |
Xxxxxxx Closing Date:
| June 30, 2018 |
IV. Closing Deliverables & Conditions Precedent to Closing
| |
| Additional Closing | In addition to the closing deliverables set forth in Section 1.5(a) of the |
2
| Deliverables of Seller: | Agreement, Seller shall deliver, or cause to be delivered, to Purchaser the additional closing deliverables set forth in Exhibit A-1. |
| Additional Closing Deliverables of Purchaser: | In addition to the closing deliverables set forth in Section 1.5(b) of the Agreement, Purchaser shall deliver, or cause to be delivered, to Seller the additional closing deliverables set forth in Exhibit A-2.
|
| Additional Conditions Precedent to Each Party’s Obligations to Close: | In addition to the conditions precedent set forth in Section 5.1 of the Agreement, the obligation of Purchaser and Seller to Close is subject to the additional conditions precedent set forth in Exhibit A-3.
|
| Additional Conditions Precedent to Purchaser’s Obligations to Close: | In addition to the conditions precedent set forth in Section 5.2 of the Agreement, the obligation of Purchaser to Close is subject to the additional conditions precedent set forth in Exhibit A-4.
|
| Additional Conditions Precedent to Seller’s Obligations to Close: | In addition to the conditions precedent set forth in Section 5.3 of the Agreement, the obligation of Seller to Close is subject to the additional conditions precedent set forth in Exhibit A-5. |
V. Additional Termination Rights
| |
By Either Purchaser or Seller:
| None
|
By Purchaser:
| Purchaser shall have the right to terminate this Agreement with respect to all of the Acquisitions without any liability or payment, at any time prior to the occurrence of the Closing hereunder, if:
· LP1 PSA, Tsugaru LP1 PSA or Tsugaru GPI PSA is terminated for any reason prior to the closing of the Acquisitions (as defined therein) contemplated thereby. |
By Seller:
| None
|
VI. Indemnification Provisions
| |
Additional Seller Indemnity Obligations:
| If Purchaser is entitled to receive indemnification from LP1 under the LP1 PSA with respect to (1) any certain representations and warranties with respect to the Ohorayama Project and the Ohorayama Project Company and its Subsidiaries (the “Ohorayama Representations”) and/or (2) any covenants contained in Article 4 of the LP1 PSA to the extent relating to the Ohorayama Project Company and its Subsidiaries or the Project (“Project Level Indemnity Obligations”) (which indemnification shall, as provided in the LP1 PSA, be determined by calculating Purchaser’s “Losses” as if LP1 had indirectly owned and sold to Purchaser both (i) the Acquired Interests (as defined in the LP1 PSA) relating to the Ohorayama Acquisition and (ii) the Acquired Interests under this Agreement relating to the Ohorayama Acquisition), then the aggregate amount of such indemnification payments shall be made severally and not jointly by LP1 and Seller in the following proportions: 5.01% by Seller and 94.99% by LP1; provided that the foregoing allocation shall not apply to any actual fraud or willful misrepresentation by either LP1 or Seller, and each of LP1 |
3
and Seller shall remain fully liable for its own actual fraud or willful misrepresentation as and to the extent provided for in the LP1 PSA (in the case of LP1) and this Agreement (in the case of Seller).
Solely in respect of the Ohorayama Representations and the Project Level Indemnity Obligations, the foregoing indemnification by Seller shall be in lieu of any indemnification by Seller under Section 6.1(a)(i).
Seller shall not be entitled to any control rights under Section 6.4 of this Agreement with respect to any Claims relating to any Project Level Indemnity Obligations relating to the Ohorayama Acquisition. | ||
Additional Purchaser Indemnity Obligations:
| None
| |
Survival Period:
| Until the date that is 12 months after the Closing, except for (i) the representations and warranties in Sections 2.1, 2.2, 2.3(a), 2.6 and 2.11 and any claim for any breach of any representation or warranty involving actual fraud or willful misrepresentation, which shall survive until the expiration of the relevant statute of limitations, (ii) the representation and warranty in Section 2.18 with respect to the Indebtedness of HoldCo and its Subsidiaries, which shall survive until the date that is the later of: (A) 6 months after the Closing; and (B) 3 months following the completion of the Project Company's first annual audited financial statements for a fiscal year ending after the Closing, and (iii) the representations and warranties in Section 2.9, which shall survive until the date that is 60 days after the expiration of the period, if any, during which an assessment, reassessment or other form of recognized written demand assessing liability for Tax, interest or penalties under applicable Law in respect of any taxation year to which such representations and warranties relate could be issued to HoldCo or any of its Subsidiaries (the “Survival Period”). | |
| Representations and Warranties: | Pursuant to the LP1 PSA, LP1 is making the Ohorayama Representations. Notwithstanding anything in this Agreement to the contrary, Seller is making no representations and warranties in Article II of this Agreement with respect to the subject matter of the Ohorayama Representations, and the Ohorayama Representations shall constitute the sole representations and warranties being made to Purchaser with respect to the Ohorayama Project and the Ohorayama Project Company and its Subsidiaries in connection with the transactions contemplated hereby; provided that the foregoing limitations shall not apply to any actual fraud or willful misrepresentation by the Seller. | |
| Limitation on Liability: | “Basket Amount”:
| With respect to the Ohorayama Acquisition, 1.00% of the applicable Purchase Price; provided that (i) the Basket Amount shall not apply to Seller’s payment obligations relating to Project Level Indemnity Obligations, (ii) if Seller makes (or is obligated to make) any payments with respect to the Project Level Indemnity Obligations relating to breaches of the Ohorayama Representations then the Basket Amount shall be deemed to have been |
4
| satisfied and (iii) if Purchaser has made indemnification claims to LP1 under the LP1 PSA with respect to Project Level Indemnity Obligations relating to the Ohorayama Acquisition but no indemnification payments have been made because the applicable Basket Amount has not been satisfied under the LP1 PSA, then 5.01% of the unpaid amounts so claimed shall be treated as claims under this Agreement for purposes of satisfying the Basket Amount hereunder. | ||
| “Seller’s Maximum Liability”: | With respect to the Ohorayama Acquisition, 11.00% of the applicable Purchase Price; provided that the amount of any payments made by Seller with respect to Project Level Indemnity Obligations relating to the Ohorayama Acquisition shall, subject to the application of the proviso in Section 6.2(b)(i) of this Agreement (applied mutatis mutandis with respect to the applicable provisions of the LP1 PSA), for purposes of Section 6.2(b)(i) of this Agreement be treated as payments by Seller under this Agreement for Claims relating to the Ohorayama Acquisition.
| |
“Purchaser’s Maximum Liability”:
| With respect to the Ohorayama Acquisition, 11.00% of the applicable Purchase Price. | |
Additional Refund or Reimbursement Obligations:
| By Purchaser or Purchaser Indemnified Party: None
By either Seller or any Seller Indemnified Party: None
| |
VII. Additional Transaction Terms
| ||
| Required Governmental Approvals: | Pattern US Finance Company LLC to submit to Bank of Japan a prior notification of inward direct investment (tainai chokusetsu toshi) in regard to the investment in Green Power Generation GK pursuant to the Foreign Exchange and Foreign Trade Act of Japan. | |
| Persons with Knowledge: | Purchaser’s Persons with Knowledge: Esben Xxxxxxxx, Xxxx Xxxx and Xxxxx Xxxxxx
Seller’s Persons with Knowledge: Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxx and Xxxxxx Xxxxxxxx
| |
Additional Assignment Rights:
| Assignment Rights of Seller: None
Assignment Rights of Purchaser: None
|
5
| Governing Law: | New York
| |
| Notice Information: | To Purchaser:
| Xxxx 0, Xxx 0 Xxx Xxxxxxxxx, XX 00000 Attention: General Counsel Phone: 000-000-0000 Fax: 000-000-0000
|
To Seller:
| Xxxxxxx Xxxxxxxxx 0/X 0-00-00 Xxxxxxx, Xxxxxx-xx Xxxxx, Xxxxx 107-0052 Attention: CFO and General Counsel Phone: x00 (0) 0000-0000
|
6
EXHIBIT A-1:
ADDITIONAL CLOSING DELIVERABLES OF Seller
| 1. | A properly executed Assignment and Assumption Agreement between Subsidiary Purchaser and Seller transferring 5.01% of the equity interests in the Project Company. |
| 2. | Consent Letter by the Project Company for Japanese law perfection purposes. |
| 3. | Written consent of participating members regarding amendment of articles of incorporation of the Project Company. |
| 4. | Amended and restated articles of incorporation of the Project Company. |
| 5. | Written consent of all members of the Project Company which authorizes and approves the transfer of the membership interest from the Seller to the Subsidiary Purchaser. |
| 6. | Documents required for the registration regarding change of the participating member of the Project Company. |
7
EXHIBIT A-2:
Additional Closing Deliverables of purchaser
Copies or originals of the following documents, each dated as of or prior to the Closing Date:
| 1. | A properly executed Assignment and Assumption Agreement between Subsidiary Purchaser and Seller transferring 5.01% of the equity interests in the Project Company. |
8
EXHIBIT A-3:
Additional Conditions Precedent to
Each Party’s Obligations to Close
| 1. | Receipt of the required Governmental Approvals (excluding the post-closing items) identified in Part VII of Section A. |
| 2. | No circumstances, developments, changes or events has occurred since the date hereof that, individually or in the aggregate, could reasonably be expected to result in the failure of a condition to closing set forth in Article 5 of the Tsugaru GPI PSA. |
9
EXHIBIT A-4:
ADDITIONAL CONDITIONS PRECEDENT TO
PURCHASER’S OBLIGATIONS TO CLOSE
None.
10
EXHIBIT A-5:
Additional Conditions Precedent to
SELLER’S Obligations to Close
None.
11
Section B: Acquired Interests; Ownership Structure;
and WIND Project Information
| OHORAYAMA TRANSACTION | |
| I.Acquired Interests & Ownership Structure | |
| Project Company: | XX Xxxxx Power Otsuki, a Japanese godo kaisha |
| Holding Company (“HoldCo”): | None |
| Subsidiaries of HoldCo | None |
| Subsidiaries of Project Company | None |
| Subsidiary Purchasers | Green Power Generation GK, a Japanese godo kaisha |
| Subsidiary Transferor | None |
| Percentage of Project Company Acquired by Purchaser: | 5.01% |
| Percentage to be Acquired by LP1: | 94.99%
Purchaser will indirectly acquire the remaining 94.99% of the Project Company held by Ohorayama Wind LLC, a Delaware limited liability company pursuant to the LP1 PSA.
|
| Acquired Interests: | Purchaser will acquire 5.01% of the membership interests in the Project Company (the “Acquired Interests”). |
12
| Direct or Indirect Co-Owners of Project Company: | Structure Immediately Prior to the Closing
|
13
| Direct or Indirect Co-Owners of Project Company (cont.): | Structure Immediately Following the Closing
|
| II.Wind Project Information | |
| Wind Project: | Nameplate capacity: 33 MW Location: Kochi Prefecture, Japan Wind turbine manufacturer: GE 3.0W 103m rotor, 85m hub height
|
| Commercial Operation Date of Wind Project: | March 1, 2018 |
14
| Permits & Governmental Approvals: | See attached Exhibit B-1. |
| Legal description of Wind Project site (i.e., real property description): | See attached Exhibit B-2. |
15
EXHIBIT B-1: PERMITS & GOVERNMENTAL APPROVALS
COMPLETED PERMITS
| Document | |
| 1. |
Environmental Impact Assessment Act:
(a) Submission and public notice of environmental impact assessment methodology report (houhousho);
(b) Submission and public notice of draft environmental impact assessment report (hyoukasho an); and
(c) Submission and public notice of environmental impact assessment report (hyoukasho).
|
| 2. |
FIT Law:
(a) Approval (setsubi nintei) by Minister of Economy, Trade and Industry of Japan and the approval on amendment (henkou nintei) and the notices concerning minor amendment (keibi henkou todokede) therefor.
(b) FIT Business Plan Approval (jigyou keikaku nintei)
|
| 3. |
Kochi Prefecture Basic Regulations on Land:
(a) Notification of development plan to the Governor of Kochi Prefecture.
(b) Notification of informational plan to the Governor of Kochi Prefecture.
(c) Submission of informational report to the Governor of Kochi Prefecture.
(d) Notification of commencement of construction
|
| 4. |
Forest Act:
(a) Forest land development permit by the Governor of Kochi Prefecture.
(b) Notification of commencement of construction
(c) Permit for activities in protecting forest by the Governor of Kochi Prefecture.
(d) Notification of felling in protecting forest to the Governor of Kochi Prefecture.
|
| 5. |
Erosion Control Act / Kochi Prefecture Erosion Control Designated Management Ordinance:
(a) Permit for activities in designated erosion control areas by the Governor of Kochi Prefecture.
(b) Notification of activities in designated erosion control areas to the Governor of Kochi Prefecture.
|
| 6. |
Otsuki Non-Legal Public Property Management Regulations:
(a) Permit for public works for laying of new roads (including culverts) by the mayor of Otsuki town.
(b) Notification of commencement of construction
(c) Permit for exclusive use for laying of new roads (including culverts) by the mayor of Otsuki town.
|
| 7. |
Soil Contamination Countermeasures Act:
Notification of changes to land character has to the Governor of Kochi Prefecture.
|
| 8. |
Factory Location Act:
(a) Notification related to new construction of designated factories to the Governor of Kochi Prefecture.
(b) Application for shortening of the restricted period to the Governor of Kochi Prefecture.
|
16
| 9. | Construction Waste Recycling Act:
Notification of demolition and new construction work of a certain scale to the Governor of Kochi Prefecture.
|
| 10. | Agricultural Land Act:
Permit for conversion of agricultural land and establishment and transfer of rights by the Governor of Kochi Prefecture.
|
| 11. | Road Act:
Permit for exclusive use for underground transmission line installation by the Mayor of Otsuki Town, Mayor of Sukumo City and manager of Kochi Prefecture Hata Civil Engineering Office.
|
| 12. | Outline of Administrative Processes for Management and Disposal of Kochi Prefecture Land Improvement Assets:
Permit for exclusive use land improvement assets by the Governor of Kochi Prefecture.
|
| 13. | Sukumo Non-Legal Public Property Management Ordinance:
Permit for exclusive use of non-legal public property by the Mayor of Sukumo City.
|
| 14. | River Act:
Permit for exclusive use of the river area and installation of facilities in the river area by the manager of Kochi Prefecture Hata Civil Engineering Office.
|
| 15. | Electricity Business Act:
(a) Submission of Project Safety Conditions (xxxx xxxxx) and its amendment to the manager of Chugoku Shikoku Industrial Safety and Inspection Department.
(b) Notification of construction plan (kouji keikaku no todokede) to the manager of Chugoku Shikoku Industrial Safety and Inspection Department.
(c) Notification of appointment of chief electrical engineer (denki shunin gijutsusha sen-nin no todokede) to the manager of Chugoku Shikoku Industrial Safety and Inspection Department.
(d) Power Producer (hatsuden jigyousha) Filing
|
| 16. | Civil Aeronautics Act:
(a) Permit for aircraft obstacle light (kouku shougai tou) installation exemption by the director of West Japan Civil Aviation Bureau.
(b) Approval for daytime obstacle markings (hiruma shougai hyoushiki) installation exemption by the director of West Japan Civil Aviation Bureau.
|
| 17. | Survey Act:
Request for the transfer of surveying xxxx (triangulation point) to the director of Geographical Survey Institute.
|
| 18. | Wire Telecommunications Act:
Notification of installation of wire telecommunications equipment to the Minister of the Internal Affairs and Communications.
|
| 19. | Otsuki Town Ordinance of the Procedure of Land Development Activities:
Approval of the land development activities by the Mayor of Otsuki Town.
|
| 20. | Electricity Business Act: |
17
(a) Self-inspection of the electric facilities prior to the commencement of operation (xxxxxx xxx xxxxx xxxxx).
(b) Examination of the system in respect of the self-inspection (xxxxxx xxx anzen kanri shinsa) .
| |
| 21. | Civil Aeronautics Act:
Notification related to aircraft obstacle light installation and daytime obstacle markings installation.
|
| 22. | Otsuki Town Ordinance of the Procedure of Land Development Activities:
Notification of the completion of construction to the Mayor of Otsuki Town.
|
| 23. | Road Act:
Permit for passage of the limit excess vehicle.
|
| 24. | Road Traffic Act:
(a) Permit for loading outside the limit (seigen gai sekisasai kyoka).
(b) Permit for towing outside the limit (seigen gai xxx-in kyoka).
(c) Permit for road use (douro shiyou kyoka).
|
| 25. | Kochi Prefecture Port Facilities Management Ordinance:
Permit for exclusive use of a port facility or use of a port facility.
|
| 26. | Fire Service Act / Hata West Fire Association Fire Prevention Ordinance:
Notification of installation of the transformer facility and the electric storage facility.
|
18
EXHIBIT B-2: LEGAL DESCRIPTION OF PROJECT SITE
The real estate documents listed in Article V (Real Estate Documents) of Section C (Documents & Key Counterparties) of this Appendix B are incorporated herein by reference.
19
section C: Documents & Key Counterparties
| Ohorayama Transaction (GPI) | |
| I.Material Project Agreements & Key Counterparties | |
| Balance of Plant Contract | Date: December 8, 2016 Shimizu Corporation |
| Contract for the Sale of Power Generation Equipment and Related Services | Date: December 8, 2016 General Electric International, Inc. |
| General Electric Company Parent Guaranty Agreement - Turbine Supply Agreement | Date: December 8, 2016 General Electric Company |
| Full Service Agreement | Date: December 8, 2016 GE International, Inc. (Tokyo Branch) |
| General Electric Company Parent Guaranty Agreement - Full Service Agreement | Date: December 8, 2016 General Electric Company |
| Insurance Policy (DSU) | Date: Xxxxxxxx 0, 0000 Xxxxx Re International Se, Japan Branch |
| Insurance Policy (EAR) | Date: December 5, 2016 Swiss Re International Se, Japan Branch |
| Insurance Policy (MARINE CARGO) | Date: June 17th, 2017 Chubb Insurance Co. of Japan |
| Power Purchase Agreement | Date: March 31, 2016 Shikoku Electric Power Company |
| Contribution in Aid of Construction Costs Agreement | Date: Xxxxx 00, 0000 Xxxxxxx Electric Power Company |
| Management, Operation, and Maintenance Services Agreement | Date: December 16, 2016 Green Power Operation GK |
| Project Administration Agreement | Date: December 16, 2016 Green Power Operation GK |
| Memorandum of Commissioning of Power Purchase Agreement (shiunten oboegaki) | Date: November 21, 2017 Shikoku Electric Power Company |
| II.Reports, Other Deliverables and Consultants | |
| Independent Engineer: | Xxxx XxxXxxxxx Japan KK |
| Independent Engineer’s Report: | Ohorayama Wind Farm Lenders’ Technical Advisor Final Report, dated December 9, 2016 |
| Insurance Consultant: | JLT Japan Limited |
| Insurance Consultant’s Report: | Ohorayama Wind Farm Insurance Advisory Report, dated November 2016 |
| Independent Financial Model Advisor: | Tokyo Kyodo Accounting Office |
| Independent Financial Model Advisor’s Report: | Report on the Results of the Agreed Procedure regarding Wind Power Project, dated December 6, 2016 |
| Independent Environmental Consultant: | Ramboll Environ US Corporation |
| Independent Environmental Consultant’s Report: | Environmental Review Refresh, dated September 2016 |
| Wind Consultant: | DNV GL AS Japan Branch |
20
| Wind Consultant’s Report: | Report Ref. 195032-JPYO-R-02-E, dated August 25, 2016 |
| III.Financing Arrangements & Key Counterparties | |
| Credit Agreement for Construction Financing and Term Financing | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| ISDA 2002 Master Agreements | Date: December 16, 2016 BTMU, SMBC and SMTB, respectively
|
| Schedule to ISDA 2002 Master Agreements | Date: December 16, 2016 BTMU, SMBC and SMTB, respectively
|
| Inter-secured Parties Agreement | Date: December 16, 2016 The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“BTMU”), Sumitomo Mitsui Banking Corporation (“SMBC”), Sumitomo Mitsui Trust Bank, Limited.(“SMTB”)
|
| Membership Interest Pledge Agreement | Date: December 16, 2016 BTMU, SMBC, SMTB, Green Power Investment Corporation (“GPI”), Ohorayama Wind LLC
|
| Material Project Document Pledge Agreement | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| Agreement on Option to Assign Contractual Positions in the Material Project Documents | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| Collateral Account Pledge Agreement | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| JCT Refund Account Pledge Agreement | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| Insurance Pledge Agreement | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| Interest Rate Hedge Agreement Pledge Agreement | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| Agreement on Option to Assign Contractual Positions in the Interest Rate Hedge Agreement | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| Superficies Mortgage Agreement | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| New York Security Agreement | Date: December 16, 2016 BTMU, SMBC and SMTB
|
| Agency Fee Letter | Date: December 16, 2016 BTMU
|
| Fee Letter | Date: December 16, 2016 BTMU, SMBC and SMTB, respectively
|
| IV.Equity and Co-Ownership Arrangements & Key Counterparties | |
| Contribution Agreement | Date: December 16, 2016 Ohorayama Wind LLC, GPI
|
| Amended and Restated Development Fee Agreement | Date: Xxxxx 00, 0000 XXX
|
| V.Real Estate Documents |
21
| Superficies Agreement | Date: September 3, 2013 Xxxxx Xxxxxxxxx Kashiratsudoi 666, 675, 683-1 |
| Superficies Agreement | Date: September 13, 2013 Xxxxx Xxxxxxxxx Kashiratsudoi 667, 673 |
| Superficies Agreement | Date: September 5, 2013 Xxxxxxxxx Xxxxx Hokotsuchi 814-5 |
| Superficies Agreement | Date: January 10, 2014 Xxxxxxx Xxxxxxxxx Hokotsuchi 713 |
| Superficies Agreement | Date: December 5, 2013 Xxxxxxxxx Xxxxxxx Hokotsuchi 712-1, 809-1 |
| Superficies Agreement | Date: November 5, 2014 Ippan Xxxxxx Xxxxx Horayama wo Mamorukai Hokotsuchi 672-1 |
| Superficies Agreement | Date: October 7, 2014 Otsuki Town Hiromi 4312, 0000-0, Xxxxxxxxxxxxx 626-113 |
| Superficies Agreement | Date: September 9, 2013 Xxxxxx Xxxxx Hiromi 4311-8 |
| Superficies Agreement | Date: April 14, 2016 Xxxxx Xxxxx Sukumo-shi, Kaizuka 867-3 |
| Superficies Agreement | Date: October 22, 2013 Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx Tachibanaura 634 |
| Superficies Agreement | Date: October 7, 2013 Xxxxxxxxx Xxxxx Tachibanaura 627 |
| Superficies Agreement | Date: October 22, 2013 Xxxx Xxxxxx, Xxxxxx Xxxxxx Tachibanaura 587, 607 |
| Superficies Agreement | Date: November 5, 2014 Tachibanaura Chikukai Tachibanaura 482-41 |
| Superficies Agreement | Date: November 5, 2014 Ippan Xxxxxx Xxxxx Tachibanaura no Sato wo Mamorukai Tachibanaura 482-40 |
| Superficies Agreement | Date: December 11, 2013 Xxxxxx Xxxxx Tachibanaura 461 |
| Superficies Agreement | Date: September 3, 2013 Xxxxx Xxxxxxxxx Kashiratsudoi 669, 671, 672 |
| Superficies Agreement | Date: September 3, 2013 Xxxxxxx Xxxxx |
00
| Xxxxxxxxxxxxx 000 | |
| Superficies Agreement | Date: September 6, 2013 Xxxxx Xxxxx Kashiratsudoi 606-46 |
| Superficies Agreement | Date: October 22, 2013 Xxxxxx Xxxxxx Kashiratsudoi 606-33 |
| Superficies Agreement | Date: September 6, 2013 Xxxxxx Xxxxxxxx, Xxxxx Xxxxx Kashiratsudoi 606-32 |
| Superficies Agreement | Date: September 17, 2013 Yasushi Futakami Kashiratsudoi 606-31 |
| Superficies Agreement | Date: September 5, 2013 Xxxxxx Xxxxx Kashiratsudoi 606-29 |
| Superficies Agreement | Date: October 9, 2013 Xxxxxx Xxxxxxxx Kashiratsudoi 606-28 |
| Superficies Agreement | Date: April 24, 2015 Xxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx Kashiratsudoi 606-27 |
| Superficies Agreement | Date: December 5, 2013 Xxxxxx Xxxxxxxxx Hokotsuchi 814-1 |
| Easement Agreement (tsukou chiekiken settei keiyaku) | Date: April 8, 2014 Xxxxxxxx Xxxxxx Hokotsuchi 602-133 |
| Easement Agreement (tsukou chiekiken settei keiyaku) | Date: December 5, 2017 Xxxxx Xxxxx Kaizuka 867-6 |
23
SECTION D: AFFILIATE TRANSACTIONS
| 1. Management, Operation, and Maintenance Services Agreement | |
| Execution Date | December 16, 2016 |
| Parties | Project Company and Green Power Operation GK |
| Term | Initial Term: 20 years from the date 6 months prior to the Anticipated COD
The Project Company may request to extend the Term for 5 years or less |
| Fee | 43,440,000 JPY as fixed annual fee, plus Reimbursable Expenses and Reimbursable Expenses Fee |
| Payment Term | Monthly payment in arrears |
| Termination | In addition to typical causes of termination, the Project Company may terminate the agreement for convenience at any time after the end of second year after the COD with 180 days prior written notice by paying the Termination Fee. |
| Services | Operation, maintenance and management of the Wind Plant |
| 2. Project Administration Agreement | |
| Execution Date | December 16, 2016 |
| Parties | Project Company and Green Power Operation GK |
| Term | Initial Term: 20 years from the execution date (December 16, 2016)
The Project Company may request to extend the Term for 5 years or less
|
| Fee | 33,720,000 JPY as fixed annual fee, plus Reimbursable Expenses and Reimbursable Expenses Fee |
| Payment Term | Monthly payment in arrears |
| Termination | In addition to typical causes of termination, the Project Company may terminate the agreement for convenience at any time after the end of second year after the COD with 180 days prior written notice by paying the Termination Fee. |
| Services | Administrative services of the Project Company and Wind Plant |
| 3. | Master Services Agreement between the Project Company and Seller, dated November 17, 2016. |
| 4. | Development Fee Agreement between the Project Company and Seller, dated Xxxxx 00, 0000 (xx amended on March 26, 2016). |
24
appendix C
Section a: Transaction Terms and Conditions
| Otsuki Transaction | |
I. Purchase Price
| |
| “Purchase Price”: | As set forth on Schedule 1.01
|
| Currency: | US Dollars, or where otherwise provided, Japanese Yen.
|
“Purchase Price Adjustment”:
| The Purchase Price Adjustment at Closing shall be calculated to maintain the after tax IRR (which shall be denominated in Japanese Yen) in the Financial Model (assuming internal use of any tax benefits) of the Purchaser based on the updated Financial Model delivered pursuant to Section 1.5(a)(iii), which has been updated solely to reflect the following:
(i) change in the timing of Closing and the amount and date of the initial distribution to the Purchaser (considering any distributions received by the Seller prior to Closing and with the Seller leaving a reasonable amount of working capital in the project to fund near-term payables);
(ii) changes to reflect amendments to or new Material Contracts that have an economic impact on the Project (including the terms of any project debt and tax equity financing and changes to the length of the term of any power purchase agreement);
(iii) changes in the amounts and timing of material acquired assets and liabilities not associated with operating the business in the ordinary course, including post-construction refunds, reserve amounts, outstanding debt balances, capital expenditures, etc.; and
(iv) manifest errors.
In addition, the Purchase Price relating to the Otsuki Project will be decreased by the amount required to pay in full (i) all amounts outstanding under that certain Credit Agreement between Otsuki Wind Power Corporation as borrower, Sumitomo Mitsui Trust Bank, Limited (formerly Sumitomo Trust Bank, Limited) and the other parties thereto, dated November 27, 2006 (as amended) (the “Otsuki Facility”), and (ii) all amounts required to terminate that certain Interest Rate Swap Agreement between Seller and Sumitomo Mitsui Trust Bank, Limited dated December 4, 2006, as amended on September 27, 2007, including any termination and/or breakage costs in connection therewith, irrespective of whether such amounts are repaid immediately prior to, at or after the Closing.
|
| Post-Closing Adjustment: | None. |
1
| Deferred Purchase Price: | None |
Payment Mechanics and Payee Information:
| Seller
Bank: Account #: Account Name: SWIFT:
|
II. Signing Date Deliverables
| |
Seller’s Signing Date Deliverables:
| Duly executed copies of:
· Purchase and Sale Agreement by and between Purchaser and Seller related to Purchaser’s acquisition of the membership interest of Green Power Tsugaru GK (the “Tsugaru GPI PSA”), as of the date hereof
|
| Purchaser’s Signing Date Deliverables: | Duly executed copies of:
· the Tsugaru GPI PSA; · Purchase and Sale Agreement by and between Purchaser and the Pattern Energy Group LP (“LP1”) related to Purchaser’s acquisition of the membership interests of XX Xxxxx Power Kanagi, XX Xxxxx Power Otsuki and XX Xxxxx Power Futtsu (the “LP1 PSA”) as of the date hereof; · Purchase and Sale Agreement by and between Purchaser and the LP1 related to Purchaser’s acquisition of the membership interest of Green Power Tsugaru GK (the “Tsugaru LP1 PSA”), as of the date hereof; and · Deferred Payment Agreement by and between Purchaser and LP1 as of the date hereof.
|
III. Closing
| |
Closing Location:
| At the offices of Purchaser: Xxxx 0, Xxx 0 Xxx Xxxxxxxxx, XX 00000
|
| Expected Closing Date: | Xxxxx 0, 0000 |
Xxxxxxx Closing Date:
| June 30, 2018 |
IV. Closing Deliverables & Conditions Precedent to Closing
| |
| Additional Closing Deliverables of Seller: | In addition to the closing deliverables set forth in Section 1.5(a) of the Agreement, Seller shall deliver, or cause to be delivered, to Purchaser the additional closing deliverables set forth in Exhibit A-1.
|
| Additional Closing Deliverables of Purchaser: | In addition to the closing deliverables set forth in Section 1.5(b) of the Agreement, Purchaser shall deliver, or cause to be delivered, to Seller the additional closing deliverables set forth in Exhibit A-2.
|
| Additional Conditions Precedent to Each Party’s | In addition to the conditions precedent set forth in Section 5.1 of the Agreement, the obligation of Purchaser and Seller to Close is subject to the
|
2
| Obligations to Close: | additional conditions precedent set forth in Exhibit A-3. | |
| Additional Conditions Precedent to Purchaser’s Obligations to Close: | In addition to the conditions precedent set forth in Section 5.2 of the Agreement, the obligation of Purchaser to Close is subject to the additional conditions precedent set forth in Exhibit A-4.
| |
| Additional Conditions Precedent to Seller’s Obligations to Close: | In addition to the conditions precedent set forth in Section 5.3 of the Agreement, the obligation of Seller to Close is subject to the additional conditions precedent set forth in Exhibit A-5.
| |
V. Additional Termination Rights
| ||
By Either Purchaser or Seller:
| None
| |
By Purchaser:
| Purchaser shall have the right to terminate this Agreement with respect to all of the Acquisitions without any liability or payment, at any time prior to the occurrence of the Closing hereunder, if:
· any of the LP1 PSA, Tsugaru GPI PSA, or Tsugaru LP1 PSA is terminated for any reason prior to the closing of the Acquisitions (as defined therein) completed thereby.
| |
By Seller:
| None
| |
VI. Indemnification Provisions
| ||
Additional Seller Indemnity Obligations:
| None | |
Additional Purchaser Indemnity Obligations:
| None
| |
Survival Period:
| Until the date that is 12 months after the Closing, except for (i) the representations and warranties in Sections 2.1, 2.2, 2.3(a), 2.6 and 2.11 and any claim for any breach of any representation or warranty involving actual fraud or willful misrepresentation, which shall survive until the expiration of the relevant statute of limitations, and (ii) the representations and warranties in Section 2.9, which shall survive until the date that is 60 days after the expiration of the period, if any, during which an assessment, reassessment or other form of recognized written demand assessing liability for Tax, interest or penalties under applicable Law in respect of any taxation year to which such representations and warranties relate could be initiated (the “Survival Period”).
| |
| Limitation on Liability: | “Basket Amount”:
| 1.00% of the Purchase Price
|
| “Seller’s Maximum Liability”: | 11.00% of the Purchase Price
|
3
“Purchaser’s Maximum Liability”:
| 11.00% of the Purchase Price | |
Additional Refund or Reimbursement Obligations:
| By Purchaser or Purchaser Indemnified Party: None
By either Seller or any Seller Indemnified Party: None
| |
VII. Additional Transaction Terms
| ||
| Updating of Disclosure Schedules: | Seller shall notify Purchaser in writing of any material changes, additions, or events occurring after the date of this Agreement and before the Closing for the Otsuki Project which require a representation and warranty of Seller for the Acquisition for the Otsuki Project (other than any representations or warranties in Sections 2.6, 2.7 and 2.11, which, for clarity, may not be updated by Seller) to be supplemented with a new Schedule or cause any material change in or addition to a Schedule promptly after Seller becomes aware of the same by delivery of such new Schedule or appropriate updates to any such Schedule (each, an “Updated Disclosure Schedule”) to Purchaser. Each Updated Disclosure Schedule shall (i) expressly state that it is being made pursuant to this section “Updating of Disclosure Schedules” in Part VII of Section A of Appendix C, (ii) specify the representations and warranties to which it applies and (iii) describe in reasonable detail the changes, additions or events to which it relates. No Updated Disclosure Schedule delivered pursuant to this section “Updating of Disclosure Schedules” shall be deemed to cure any breach of any representation or warranty made to the Purchaser with respect to the Acquisition for the Otsuki Project unless the Purchaser specifically agrees thereto in writing or, as provided in and subject to Article 5, consummates the Closing for the Otsuki Project under this Agreement after receipt of such written notification, nor shall any such Updated Disclosure Schedule be considered to constitute or give rise to a waiver by either of the Purchaser of any condition set forth in this Agreement with respect to the Acquisition for the Otsuki Project, unless the Purchaser specifically agrees thereto in writing or consummates the Closing for the Otsuki Project under this Agreement after receipt of such written notification. | |
| Required Governmental Approvals: | Pattern US Finance Company LLC to submit to Bank of Japan a prior notification of inward direct investment (tainai chokusetsu toshi) in regard to the investment in Green Power Generation GK pursuant to the Foreign Exchange and Foreign Trade Act of Japan. | |
| Persons with Knowledge: | Purchaser’s Persons with Knowledge: Esben Xxxxxxxx, Xxxx Xxxx and Xxxxx Xxxxxx
Seller’s Persons with Knowledge: Xxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxx
| |
Additional Assignment Rights:
| Assignment Rights of Seller: None
Assignment Rights of Purchaser: None
|
4
| Governing Law: | New York
| |
| Notice Information: | To Purchaser:
| Xxxx 0, Xxx 0 Xxx Xxxxxxxxx, XX 00000 Attention: General Counsel Phone: 000-000-0000 Fax: 000-000-0000
|
To Seller:
| Xxxxxxx Xxxxxxxxx 0/X 0-00-00 Xxxxxxx, Xxxxxx-xx Xxxxx, Xxxxx 107-0052 Attention: CFO and General Counsel Phone: x00 (0) 0000-0000
|
5
EXHIBIT A-1:
ADDITIONAL CLOSING DELIVERABLES OF Seller
| 1. | A properly executed Assignment and Assumption Agreement between Subsidiary Purchaser and Seller transferring 100% of the equity interest in the Project Company. |
| 2. | Amended and restated shareholders registry of the Project Company. |
| 3. | Any documents necessary for the application of the commercial registration of the Project Company regarding change of its directors. |
6
EXHIBIT A-2:
Additional Closing Deliverables of purchaser
Copies or originals of the following documents, each dated as of or prior to the Closing Date:
| 1. | A properly executed Assignment and Assumption Agreement between Subsidiary Purchaser and Seller transferring 100% of the equity interest in the Project Company. |
7
EXHIBIT A-3:
Additional Conditions Precedent to
Each Party’s Obligations to Close
| 1. | Receipt of the required Governmental Approvals (excluding the post-closing items) identified in Part VII of Section A. |
| 2. | No circumstances, developments, changes or events has occurred since the date hereof that, individually or in the aggregate, could reasonably be expected to result in the failure of a condition to closing set forth in Article 5 of the Tsugaru GPI PSA. |
8
EXHIBIT A-4:
ADDITIONAL CONDITIONS PRECEDENT TO
PURCHASER’S OBLIGATIONS TO CLOSE
None.
9
EXHIBIT A-5:
Additional Conditions Precedent to
SELLER’S Obligations to Close
None.
10
Section B: Acquired Interests; Ownership Structure;
and WInd Project Information
| OTSUKI TRANSACTION | |
| I.Acquired Interests & Ownership Structure | |
| Project Company: | Otsuki Wind Power Corporation, a Japanese kabushiki kaisha |
| Holding Company (“HoldCo”): | None |
| Subsidiaries of HoldCo | None |
| Subsidiaries of Project Company | None |
| Subsidiary Purchaser | Green Power Generation GK, a Japanese godo kaisha |
| Subsidiary Transferor | None |
| Percentage of Project Company Acquired by Purchaser: | 100% (200 shares) |
| Percentage Retained by Seller: | 0.00% |
| Acquired Interests: | Purchaser will acquire 100% of the shares (200 shares) in the Project Company (the “Acquired Interests”). |
11
| Direct or Indirect Co-Owners of Project Company: | Structure Immediately Prior to the Closing
|
12
| Direct or Indirect Co-Owners of Project Company (cont.): | Structure Immediately Following the Closing
|
| II.Wind Project Information | |
| Wind Project: | Nameplate capacity: 12 MW Location: Kochi Prefecture, Japan Mitsubishi Heavy Industries MWT 1000 A wind power generator
|
| Commercial Operation Date of Wind Project: | November 2006 |
| Permits & Governmental Approvals: | See attached Exhibit B-1. |
| Legal description of Wind Project site (i.e., real property description): | See attached Exhibit B-2. |
13
EXHIBIT B-1: PERMITS & GOVERNMENTAL APPROVALS
COMPLETED PERMITS
| Document | |
| 1. | Environmental Impact Assessment Act:
Submission and public notice of environmental impact assessment report (hyoukasho).
|
| 2. | Renewables Portfolio Standard Act (RPS Act):
METI Approval
|
| 3. | FIT Law:
(a) METI Approval (setsubi nintei)
(b) FIT Business Plan Approval (jigyou keikaku nintei)
|
| 4. | Electricity Business Act:
(a) Notice Regarding Construction Plan
(b) Notice Regarding Safety Rule
(c) Filing of Chief Electricity Engineer
(d) Power Producer (hatsuden jigyousha) Filing
|
| 5. | Forest Act:
Forest land development permit by the Governor of Kochi Prefecture.
|
| 6. | Factory Location Act:
Notification related to new construction of designated factories to the Governor of Kochi Prefecture.
|
| 7. | Road Act:
Permit for exclusive use for underground transmission line installation by the Mayor of Otsuki Town and the Head of Kochi Prefecture Sukumo Civil Engineering Office.
|
| 8. | Building Standard Act:
Confirmation of Wind Turbine Generators by the Building Official of Kochi Prefecture.
|
| 9. | Civil Aeronautics Act:
Permit for aircraft obstacle light (kouku shougai tou) installation exemption by the Head of Osaka Regional Civil Aviation Bureau.
|
| 10. | Fire Service Act:
Notification of installation of power generation facilities (switching station) and extinguisher.
|
| 11. | Industrial Safety and Health Act:
Notice Regarding the Coxxxxxxxxxx Xxxx
|
00
XXXXXXXX X-0: LEGAL DESCRIPTION OF PROJECT SITE
The real estate documents listed in Article V (Real Estate Documents) of Section C (Documents & Key Counterparties) of this Appendix C are incorporated herein by reference.
15
section C: Documents & Key Counterparties
| Otsuki Transaction | |
| I.Material Project Agreements & Key Counterparties | |
| EPC Agreement | Date: July 20, 2005 Yonden Engineering Company, Incorporated |
| Turbine Warranty Agreement | Date: May 16, 2006 Mitsubishi Heavy Industries, Ltd. |
| Operation and Maintenance Services Agreement | Date: October 31, 2006 Yonden Engineering Company, Incorporated |
| Insurance Policy (PD/BI) | Date: November 1, 2017 Mitsui Sumitomo Insurance Company, Limited |
| Insurance Policy (GL) | Date: November 1, 2017 Mitsui Sumitomo Insurance Company, Limited |
| Power Purchase Agreement | Date: June 30, 2005 Shikoku Electric Power Co., Ltd. |
| Memorandum of Understanding Regarding Interconnection of Wind Power Facilities | Date: July 7, 2006 Shikoku Electric Power Co., Ltd. |
| Amended Power Purchase Agreement | Date: September 25, 2012 Shikoku Electric Power Co., Ltd. |
| Contribution in Aid of Construction Costs Agreement | Date: June 30, 2005 Shikoku Electric Power Co., Ltd. |
| SPC Management Services Agreement | Date: October 31, 2006 Green Power Investment Corporation |
| II.Reports, Other Deliverables and Consultants | |
| Insurance Consultant: | Xxxxx Japan, Inc. |
| Insurance Consultant’s Report: | Report on Operational Insurance dated Nov 2006 |
| Risk Consultant: | ABSG Consulting, Inc. |
| Risk Consultant’s Report: | Earthquake Risk Analysis Report dated Sep 2006 |
| Risk Consultant: | InterRisk Research Institute & Consulting, Inc. |
| Risk Consultant’s Report: | Earthquake Risk Analysis Report dated Oct 2014 |
| Wind Consultant: | Japan Weather Association |
| Wind Consultant’s Report: | Wind Conditions Assessment Report dated Jun 2006 |
| III.Financing Arrangements & Key Counterparties | |
| Financing Agreement | None |
| IV.Equity and Co-Ownership Arrangements & Key Counterparties | |
| Contribution Agreement | None |
| V.Real Estate Documents | |
| Easement Agreement | Date: November 9, 2006 Izuho Ikekawa Yoshinosawa 1656-1, 1656-3, 1656-4, 1656-7 |
| Easement Agreement | Date: October 24, 2006 Xxxxxxxxx Xxxxx Yoshinosawa 1656-8, 1656-13 |
| Easement Agreement | Date: October 24, 2006 Xxxxxxx Xxxxxxx Yoshinosawa 1656-15 |
| MOU on Easement Agreement | Date: November 20, 2013 Xxxxx Xxxxxxx (the heir) |
16
| Yoshinosawa 1656-15 | |
| Easement Agreement | Date: October 24, 2006 Xxxxxxx Xxxxxxxxxx Yoshinosawa 1656-16 ,1656-18 |
| Superficies Agreement | Date: October 27, 2006 Xxxxxxx Xxxxxxxx Yoshinosawa 1709-26 |
| Easement Agreement | Date: October 27, 2006 Xxxxxxx Xxxxxxxx Yoshinosawa 1656-17, 1656-19 |
| Easement Agreement | Date: October 24, 2006 Tooru Miyatani Yoshinosawa 141, 142-1, 142-2, 143 |
| Easement Agreement | Date: March 26, 2007 Otsuki Town Tatsugasako 1919-22, 1913-12 |
| Superficies Agreement | Date: March 26, 2007 Otsuki Town Tatsugasako 1919-23, 1919-24 |
| Superficies Agreement | Date: October 15, 2006 Xxxxxxxxx Xxxxxx Yoshinosawa 1709-1 |
| Superficies Agreement | Date: October 14, 2006 Xxxxxxxxx Xxxxxxx Yoshinosawa 1709-25 |
| Superficies Agreement | Date: October 15, 2006 Xxxxxxx Xxxxxxxxx Yoshinosawa 1700-21 |
| Superficies Agreement | Date: October 24, 2000 Xxxxxxx Xxxxxxx Xxxxxxxxxxx 0000-00, 1709-28 |
| Easement Agreement | Date: October 24, 2000 Xxxxxxx Xxxxxxx Xxxxxxxxxxx 0000-00 |
| Superficies Agreement | Date: October 18, 2006 Nenji Inada Yoshinosawa 1709-29 |
| Superficies Agreement | Date: October 19, 2006 Midori Maeno Yoshinosawa 1885-18 |
| MOU on Superficies Agreement | Date: Auxxxx 00, 0000 Xxxxx Xxxxx xnd Xxxxx Xxxxxxxx (the heirs) Yoshinosawa 1885-18 |
| MOU on Superficies Agreement | Date: December 28, 2017 Xxxxx Xxxxx and Xxxx Xxxxxxxx (the heirs) Yoshinosawa 1885-18 |
| Superficies Agreement | Date: October 15, 2006 Xxxxxxxx Xxxxxxx and Xxxxx Xxxxxxx Yoshinosawa 1885-20 |
| Superficies Agreement | Date: October 24, 2006 |
17
Xxxxxx Xxxxxxxx Yoshinosawa 1887-36 | |
| Easement Agreement | Date: October 24, 2006 Xxxxxx Xxxxxxxx Yoshinosawa 1887-37 |
| Superficies Agreement | Date: October 24, 2006 Xxxxx Xxxxxx Yoshinosawa 1887-38, 1887-39 |
| MOU on Superficies Agreement | Date: November 14, 2013 Xxxx Xxxxxx (the heir) Yoshinosawa 1887-38, 1887-39 |
| Easement Agreement | Date: October 24, 2006 Xxxxx Xxxxxx Yoshinosawa 1887-40, 1887-44, 1887-45, 1887-46 |
| MOU on Easement Agreement | Date: November 14, 2013 Xxxx Xxxxxx (the heir) Yoshinosawa 1887-40, 1887-44, 1887-45, 1887-46 |
| Easement Agreement | Date: October 24, 2000 Xxxxxxx Xxxxxxxx Xxxxxxxxxxx 0000-00 |
| Superficies Agreement | Date: October 24, 2006 Xxxxxx Xxxxxxxxx Yoshinosawa 1887-26, 1902-16 |
| MOU on Superficies Agreement | Date: Maxxx 00, 0000 Xxxxx Xxxxxx (xxx xxxx) Xoshinosawa 1887-26, 1902-16 |
| Easement Agreement | Date: October 24, 2006 Xxxxxx Xxxxxxxxx Yoshinosawa 1887-25 |
| MOU on Easement Agreement | Date: Maxxx 00, 0000 Xxxxx Xxxxxx (xxx xxxx) Xoshinosawa 1887-25 |
| Easement Agreement | Date: October 24, 2006 Xxxxx Xxxxxxxx Yoshinosawa 1903-15 ,1903-16, 1903-17 |
| Superficies Agreement | Date: October 19, 2006 Xxxxxx Xxxxx Yoshinosawa 1903-8, 1913-2 |
| Superficies Agreement | Date: October 20, 2006 Xxxxxxxx Xxxxxx Tatsugasako 1913-8, Yoshinosawa 1903-10 |
| Superficies Agreement | Date: October 16, 2006 Xxxxx Xxxxxxx Tatsugasako 1910-102 |
| MOU on Superficies Agreement | Date: November 20, 2013 Sanami Okamura (the heir) Tatsugasako 1910-102 |
| Superficies Agreement | Date: October 24, 2000 Xxxxxx Xxxxxxx Xxxxxxxxxxx 0000-000 |
18
SECTION D: AFFILIATE TRANSACTIONS
| 1. SPC Management Agreement | |
| Execution Date | October 31, 2006 |
| Parties | Project Company and GPI |
| Term | Period from November 1, 2006 to October 31, 2007.
However, the term shall be extended for another 1 year, unless either party makes 30 days prior written notice to terminate this agreement. The same shall apply thereafter. |
| Fee | JPY 340,000 per month |
| Payment Term | Monthly payment in arrears |
| Termination | Either party may terminate this agreement if any typical event (nonperformance, bankruptcy, etc.) which causes termination occurs. |
| Services | Services related to operation, maintenance, material corporate documents, finance, accounting and other activities, exercise of rights and performance of obligations of the Project Company |
19
