DIRECT AGREEMENT, 영문계약서, 직접 계약서

 

 

DIRECT AGREEMENT

 

 

made by and among

 

 

[AAA CORPORATION]

 

 

 

[BBB CORPORATION]

 

as Generator

 

 

 

and

 

 

 

[CCC BANK]

 

as Trustee

 

 

dated as of [·], 20[·]

 

 

 

DIRECT AGREEMENT

 

DIRECT AGREEMENT dated as of [•], 20[•] among [AAA CORPORATION], a government owned and controlled corporation organized and existing under and by virtue of the laws of [Name of the Country], with its principal office at [Adress], represented by its President, who is authorized to represent it in this Agreement (“AAA”); [BBB CORPORATION[, a private corporation organized and existing under the laws of [Name of the Country], with its principal address at [Adress], represented by its President and Chief Executive Officer who is authorized to represent it in this Agreement (the “Generator”); and [CCC BANK], not in its individual capacity but solely in its capacity as the Trustee (the “Trustee”) under the Security Documents.

 

WHEREAS

 

A.         [AAA] has called for the development of new power facilities to utilize indigenous natural gas sources to support and maintain the [Name of the Country]’s economic growth.

 

B.          The Generator has agreed with [AAA] to construct, operate and maintain the Power Station upon the terms and subject to the conditions set forth in the Energy Conversion Agreement dated [•], 20[•] (the “ECA”) and as will be amended and restated on the Amendment and Restatement Date (as defined in <Article 6.4(d))> Article 6.4(c)) pursuant to the Amendment and Restatement Agreement dated as of [•], 20[•] (the “ARA”) between the Generator and [AAA].

 

C.          Article 2.5 of the ECA refers to a Direct Agreement to be entered into between [AAA] and the Lenders providing for the matters mentioned in Section B of the Eleventh Schedule of the ECA, or otherwise in form and on terms reasonably satisfactory to [AAA].

 

D.         In connection with the financing of the Power Station, the Generator has entered into the Financing Documents (as defined below) with the Senior Lenders providing debt financing for the Power Station.

 

E.          In order to secure the Generator’s obligations under the Financing Documents, the Generator has agreed to transfer and assign for security purposes, and grant a first priority security interest in, all of its right, title and interest in and to the ECA and the other Assigned Agreements (as well as other property described in the Security Documents) to the Trustee pursuant to the Security Documents for the benefit of the Secured Parties.

 

F.          The Generator and [AAA] have entered into a Deed dated [•], 20[•] (the “Deed”) pursuant to which the Generator has granted a security interest in favor of [AAA] over certain assets of the Generator described therein in respect of the Generator’s obligations to [AAA] under the ECA.

 

G.         [AAA], [DDD CORPORATION] (“DDD”) and the Generator have entered into the Proponent’s Agreement dated [•], 20[•] (the “Proponent’s Agreement”) pursuant to which [DDD], as the sole shareholder of the Generator as of such date, has made, and has agreed to cause any future shareholders of the Generator ([DDD] and any such future shareholders (including the Secured Parties and/or the Trustee upon any foreclosure by the Trustee on the Generator’s right, title and interest under the ECA resulting in the Trustee succeeding to such right, title and interest, but otherwise excluding the Secured Parties and the Trustee) being collectively referred to as the “Proponent”) to make, certain agreements with respect to the operation of the Generator and the subordination of the Proponent’s interest in the Generator to that of [AAA] on the terms and conditions described therein.

 

H.         On [•], 20[•] the Generator accomplished the Site mobilization milestone referred to in Article 2.2.a.iv of the ECA.

 

I.           It is a condition to the making of the loans and the extensions of credit under the Financing Documents that [AAA] execute and deliver this Direct Agreement and [AAA], the Generator and the Trustee on behalf of the Secured Parties have agreed to enter into this Agreement as constituting the Direct Agreement.

 

 

NOW, THEREFORE, in order to induce the Senior Lenders to provide financing for the Power Station and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, [AAA], the Generator and the Trustee on behalf of the Secured Parties agree to enter into this Agreement upon the terms and subject to the conditions hereinafter set forth.

 

ARTICLE 1

Definitions and Interpretation

 

1.1        Definitions.  In this Agreement and the Recitals, unless the context requires otherwise, the following expressions shall have the following meanings:

“Agreement” means this Direct Agreement.

“Assigned Agreements” means the ECA, the ARA, the Memorandum of Agreement dated as of February [•], 20[•] and notarized on [•], 20[•] between [AAA] and the Generator related to, inter alia, the [AAA] Site (the “Site MOA”), the Memorandum of Agreement notarized on [•], 20[•] between [AAA] and the Generator related to, inter alia, the jetty and foreshore lease (the “Foreshore Lease MOA”), the Memorandum of Agreement dated as of [•], 20[•] between [AAA] and the Generator related to, inter alia, the foreshore lease and the jetty (the “Agreement Regarding Foreshore Lease”), the Memorandum of Agreement dated as of [•], 20[•] and notarized on [•], 20[•] among [Name of the City], [AAA] and the Generator related to, inter alia, the Environmental Compliance Certificate (the “ECC MOA”), the Fuel Supply and Management Agreement dated as of [•], 20[•] between [AAA] and the Generator (the “FSMA”) and any other agreement to which [AAA] and the Generator are a party or by which they are bound, the Generator’s rights and interests under which have been assigned as security to the Trustee pursuant to the Security Documents, but not including the Deed and the Proponent’s Agreement.

“Outstanding Financing Obligations” means all amounts outstanding under any Financing Document, including fees, expenses, principal, interest, default interest, any interest rate swap unwinding or termination costs, any currency swap unwinding or termination costs owed to [Name of the Bank], or otherwise.

 

1.2        Other Definitions.  Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in Exhibit A attached hereto and, if not defined therein, in the ECA.

 

1.3        Headings.  As used herein, headings are for convenience and do not form part of, and shall not affect the interpretation of, this Agreement.

 

1.4        Interpretation.  In this Agreement, unless the context otherwise requires:

(a)     the singular includes the plural and vice versa;

(b)     any gender includes the others and “person” includes a corporation or other legal entity;

(c)     reference to a Law is to the same as amended, modified or replaced from time to time and to any law, ordinance, statute, rule, order, decree, injunction, international agreement or regulation made thereunder and opinions (having the force of law) thereon;

(d)     reference to a Consent is to the same as amended, modified or replaced from time to time, and to any proper order, instruction, requirement or decision of any competent authority thereunder;

(e)     reference to an agreement or instrument is to the same as amended, modified, supplemented or replaced from time to time;

(f)     reference to a “Party” is to a party to this Agreement, its successors and permitted assigns;

(g)     except as otherwise provided herein, reference to a Recital, Article or Schedule is to a recital or article of, or schedule to, this Agreement;

(h)     where a word or expression is defined (including under the ECA, Exhibit A attached hereto and this Article 1.4), cognate words and expressions shall be construed accordingly;

(i)      “including” shall not be construed as being by way of limitation and “otherwise” shall not be construed as limited by words with which it is associated;

(j)      any reference to a governmental ministry, department, authority or agency shall be construed as including a reference to any governmental ministry, department, authority or agency which succeeds to the functions thereof;

(k)     the word “reasonable” appearing before “approval”, “consent”, “satisfaction” or any similar word shall mean that the approval, consent, expression of satisfaction or other decision to be made as to the particular matter or thing concerned shall not unreasonably be withheld or delayed.  Conversely, if the word “reasonable” does not so appear, the approval, consent, expression of satisfaction or other decision to be made may be given or made solely at the unfettered discretion of the Party concerned;

(l)      the expression “to the best of its knowledge” shall mean to the best of the knowledge and belief of the Party concerned, having made all due and reasonable enquiry; and

(m)    “indemnify” includes “defend and hold harmless.”

 

1.5        Effectiveness of this Agreement.  This Agreement shall be effective upon due execution and delivery by each of the Parties. Upon termination of this Agreement pursuant to Article 9.2(j)(vii), no Party shall have any further obligation or liability to any other Party hereunder; provided, however, that the rights and obligations of the Parties under Articles 1, 9.1 and 9.2 (other than Article 9.2(j)) shall survive any such termination.

 

 

ARTICLE 2

Security Assignment; Subordination

 

2.1        Acknowledgment and Consent to Security Assignment.

(a)     [AAA] hereby acknowledges that it has been informed of the terms of the Security Documents as of the date of this Agreement and irrevocably consents to the Generator having, pursuant to the Security Documents:

(i)  sold, assigned absolutely and unconditionally, conveyed, set over and transferred to the Trustee, for the benefit of the Secured Parties, all monies payable by [AAA] under the Assigned Agreements (including under the ECA for electricity, in respect of a termination or buyout thereunder and for the payment for damages for breach thereof);

(ii) granted to the Trustee, for the benefit of the Secured Parties, a continuing security interest of first priority in all of the right, title and interest of the Generator in, to and under all of the Assigned Agreements (as well as all of its other property), together with an irrevocable power of attorney in favor of the Trustee for the benefit of the Secured Parties, to exercise in the Generator’s name and on the Generator’s behalf all of the Generator’s rights and benefits under the Assigned Agreements; and

(iii)             established in favor of the Trustee, for the benefit of the Secured Parties, a first ranking mortgage over certain movable and immovable assets of the Generator, including the right given to the Generator pursuant to the terms of the ECA to use the [AAA] Site and the right given to the Generator pursuant to the Agreement Regarding Foreshore Lease in respect of the Foreshore Property (as defined therein).

(b)     [AAA], at the request of the Generator, and subject to Article 5.4(b), recognizes the Trustee as the legitimate attorney-in-fact of the Generator, entitled to do, perform and exercise all things, acts and rights on behalf and for the account of the Generator, including the right to cure any default by the Generator under any Assigned Agreement, and the full right and power to enforce directly against [AAA] all obligations of [AAA] under the Assigned Agreements and otherwise to exercise all remedies under the Assigned Agreements and to make all demands and, subject to Article 5.2(a), give all notices and make all requests required or permitted to be made by the Generator under the Assigned Agreements.

(c)     [AAA] hereby acknowledges and irrevocably consents to the assignment and pledge by each of [•] Inc. and any other shareholder of the Generator of all their right, title and interest in the shares of capital stock or other equity securities of the Generator (“Generator Equity Securities”) to the Trustee for the benefit of the Secured Parties under the Security Documents.  Accordingly, [AAA] understands and agrees that, notwithstanding Article 6 of the Proponent’s Agreement, the Trustee in such capacity may become the owner of the Generator Equity Securities by way of foreclosure or otherwise.  [AAA] further agrees that, notwithstanding Article 5.6 of the Proponent’s Agreement, in the case of any such transfer of Generator Equity Securities, the Trustee need not agree to be bound by the provisions of the Proponent’s Agreement as a Proponent.  The Parties agree that in connection with the transfer by or at the instruction of the Trustee of any Generator Equity Securities to the assignee(s) or designee(s) of the Trustee, (i) Article 6 of the Proponent’s Agreement shall not apply, (ii) Article 6.2.b of the Proponent’s Agreement shall apply provided that for purposes of this Article 2.1(c), the existing language of Article 6.2.b of the Proponent’s Agreement shall be deemed to be deleted in its entirety and replaced by “any proposed owner of Equity in the Generator is reasonably reputable and has sufficient legal capacity and the technical and financial resources available to it reasonably sufficient to become a party to and perform its obligations under this Agreement,” (iii) Article 6.2.c of the Proponent’s Agreement shall apply mutatis mutandis and provided that [AAA] shall provide the Trustee with a copy of the list of entities referenced therein upon their request from time to time, (iv) the last paragraph of Article 6.2 of the Proponent’s Agreement beginning with the words “and any person which becomes a party” shall apply mutatis mutandis and with the language “paragraphs a. to c. above” deemed to be amended to read “paragraphs b. and c. above,” with such reference to paragraphs b. and c. being deemed to mean paragraphs b. and c. as amended in this Article 2.1(c), and (v) if and to the extent that [DDD] is released of its continuing obligations under the Proponent’s Agreement, then the Trustee shall be bound by the provisions of Article 5.6 of the Proponent’s Agreement, provided that any assignee(s) or designee(s) of the Trustee shall not be required to agree to be bound (x) to perform, or enter into any obligations whatsoever in respect of, any continuing obligations for which [DDD] remains liable under the Proponent’s Agreement or (y) by Article 6 of the Proponents’ Agreement (other than Article 6.2.b. and c. of the Proponent’s Agreement and the last paragraph of Article 6.2 of the Proponent’s Agreement beginning with the words “and any person which becomes a party” which shall apply mutatis mutandis to subsequent transfers by any such assignee or designee of Generator Equity Securities).

(d)     The Trustee acknowledges and agrees on behalf of the Secured Parties that, pursuant to and subject to the terms of the Deed, [AAA] has been granted a lien over the Generator’s Interest.  The Trustee further acknowledges on behalf of the Secured Parties that [AAA] is the sole beneficiary named under each of the Construction Performance Security, the Development Security and the Operation and Maintenance Security (collectively, the “ECA Security”), which ECA Security secures performance by the Generator of its obligations under the ECA in accordance with the terms thereof.

(e)     [AAA] hereby acknowledges and agrees that all or any of the Generator’s obligations under the ECA or any other Assigned Agreement, unless expressly assumed in writing by the Trustee, shall remain with the Generator and the assignment of the ECA and the other Assigned Agreements by the Generator to the Secured Parties pursuant to the Security Documents shall not give rise to any liability, duties or obligations whatsoever on the part of the Trustee or any of the other Secured Parties owing to [AAA], and no exercise by the Trustee or any other Secured Party of any rights of the Generator or exercise of the Generator’s rights under or curing of or attempt to cure any of the Generator’s defaults under the ECA or any of the other Assigned Agreements, shall be construed as an assumption by the Trustee or any other Secured Party of any covenants, agreements, liability or obligations of the Generator.

(f)     [AAA] agrees that, upon the exercise by the Trustee of any of the remedies under the Security Documents in respect of the ECA or other Assigned Agreements, the Trustee may assign any or all of the Generator’s right, title and interest under the ECA and the other Assigned Agreements, subject to Articles 4.7 and 4.8, to any person.  After the effective date of such transfer, [AAA] shall owe its obligations under the ECA and the other Assigned Agreements to such person.

(g)     In the event that the Trustee, or any other person, assumes any of the obligations and liabilities of the Generator under the ECA and the Assigned Agreements (as contemplated in Articles 2.1(e) or 2.1(f) or otherwise), no officer, director, employee, shareholder, affiliate or agent thereof shall have any liability with respect to such obligations and liabilities.

 

2.2        Subordination.  Notwithstanding anything in this Agreement, the Deed or any Assigned Agreement to the contrary:

(a)     Subject to the remaining provisions of this Article 2.2(a), the Parties agree that the liens and other rights of [AAA] pursuant to the Deed are fully subordinated to and subject in right of security to the liens granted to and the rights of the Trustee pursuant to the Security Documents.  Accordingly, [AAA] agrees that, unless and until all Outstanding Financing Obligations have been paid in full, it will not, without the prior written consent of the Trustee:

(i)  exercise (or seek to exercise) any rights or remedies available to it under the Deed or under applicable law as the beneficiary of the Deed; or

(ii) subject to Article 5.2(i), otherwise take (or seek to take) any action to secure possession of or foreclosure upon any portion of the Generator’s Interest,

(except upon exercise by [AAA] of its rights under the Deed to enforce a transfer of the Generator’s Interest pursuant to Article 8 or Article 12.6 of the ECA (as the case may be) and provided that if the Buyout Price or the Termination Price is required to be paid in respect of such transfer, payment by [AAA] of the Buyout Price or the Termination Price (whichever (if any) is required to be paid under the ECA) in the full amount required by and otherwise in accordance with the ECA and Article 3.1).

(b)     [AAA] agrees that if, contrary to the provisions of Article 2.2(a), it receives any payment or distribution in respect of the Generator’s Interest pursuant to the exercise of any rights or remedies available to it under the Deed or under applicable law as the beneficiary of the Deed or, subject to Article 5.2(i), otherwise as a result of actions to secure possession of or foreclosure upon any portion of the Generator’s Interest, such payment or distribution will be held in trust for the benefit of, and shall be paid over to, the Trustee for application to the payment of the obligations secured by the Security Documents until all Outstanding Financing Obligations have been paid in full. 

(c)     The subordination effected by this Article 2.2 is absolute and unconditional (except as expressly set forth herein) and shall not be affected by:

(i)  any amendment of, or addition or supplement to, any Financing Document;

(ii) any refinancing under or of any Financing Document;

(iii) any exercise or nonexercise of any right, power or remedy under or in respect of any Financing Document; or

(iv) any waiver, consent, release, indulgence, extension, renewal, modification, delay or other action, inaction or omission, in respect of any Financing Document (whether or not [AAA] shall have had notice or knowledge of any of the foregoing).

 

 

ARTICLE 3

Payments

 

3.1        Payments. 

(a)     [AAA] hereby agrees that until it shall receive notice to the contrary from the Trustee, [AAA] shall pay all monies payable by it under any Assigned Agreement (including all Availability Fees and Energy Fees) directly to (i) the Trustee at [•] , account no. [•] (in respect of U.S. Dollar-denominated payments) and (ii) the Trustee at [•], account no. [•] (in the case of [Currency]-denominated payments), and the Generator hereby authorizes [AAA] to release any and all such payments as aforesaid and agrees that payment in accordance with this Article 3.1 shall constitute full discharge to [AAA] in respect of the relevant payment obligations under the relevant Assigned Agreement. The Trustee may, by prior written notice to [AAA], specify any replacement accounts to which any of the foregoing payments shall be made.

(b)     The Generator shall have no right whatsoever to cancel, rescind or repeal the right of the Trustee to claim and receive all monies payable by [AAA] under any Assigned Agreement or the power of attorney granted to the Trustee, or the foregoing instruction and authorization, without the express written consent of the Trustee.

(c)     Unless required to do so by applicable law, [AAA] shall not, without the prior written consent of the Trustee, make any payments to or for the benefit of the Generator other than in accordance with the first sentence of Article 3.1(a).

(d)     [AAA] shall pay all amounts due under the Assigned Agreements without deduction, set-off or counterclaim of any kind (other than as required by Law), including for amounts with respect to which [AAA] has the right to draw under the ECA Security.

 

 

ARTICLE 4

[AAA]’s Rights Under Assigned Agreements

 

4.1        Cancellation or Termination of the Assigned Agreements.  [AAA] agrees that it will not (a) consent or agree to any cancellation or termination of any Assigned Agreement without the prior written consent of the Trustee, or (b) except as otherwise expressly provided herein, cancel, terminate or suspend performance under any Assigned Agreement without the prior written consent of the Trustee; provided, that, (i) this clause (b) shall not apply to any cancellation or termination of the ECA under Article 12.6.d of the ECA, and (ii) if [AAA] is entitled to cancel or terminate the ECA pursuant to Article 4.6 of this Agreement or Article 12.6.d of the ECA, this clause (b) shall not apply to the other Assigned Agreements.

 

4.2        Transfer of Generator’s Interest Upon Buyout. [AAA] agrees that no transfer of the Generator’s Interest to [AAA] pursuant to Article 8 of the ECA shall be made unless, concurrently with such transfer, [AAA] pays the Buyout Price for such transfer in the full amount required by and otherwise in accordance with the requirements of the ECA and Article 3.1.

 

4.3        Transfer of Generator’s Interest Upon Termination for Material Default. If the Termination Price is payable pursuant to Article 12.6.a of the ECA in respect of a transfer of the Generator’s Interest to [AAA] pursuant to Article 12.6.e of the ECA, [AAA] agrees that no such transfer shall be made unless, concurrently with such transfer, [AAA] pays the Termination Price in the full amount required by and otherwise in accordance with the ECA and Article 3.1.

 

4.4        Release of Liens Upon Transfer of Generator’s Interest.  The Parties hereby acknowledge and agree that transfer of the Generator’s Interest to [AAA] pursuant to Article 8 of  the ECA or Article 12.6.e of the ECA shall be made free from any lien, charge or other encumbrance or right of the Trustee or any of the Secured Parties under or pursuant to any of the Financing Documents or this Agreement and the Trustee shall procure the release of the same concurrently with such transfer, provided that:

(a)     if the Buyout Price is payable pursuant to Article 8 of the ECA; or

(b)     if the Termination Price is payable pursuant to Article 12.6.a of the ECA,

such release shall occur concurrently with payment by [AAA] of the Buyout Price or the Termination Price (as the case may be) for such transfer in the full amount required by and otherwise in accordance with the requirements of the ECA and Article 3.1.

 

4.5        ECA Security; Exercise of Rights.  Notwithstanding anything in the ECA or any other Assigned Agreement to the contrary, in the event of a Default or Material Default by the Generator under the ECA or any other breach of any provision thereof or of any other Assigned Agreement, or in any other case where [AAA] has the right to draw upon any ECA Security, in order to obtain payment of the amounts with respect to which [AAA] has the right to draw upon the ECA Security and otherwise to satisfy any and all claims against the Generator arising therefrom, [AAA] shall, to the extent it otherwise is entitled to and elects to do so under the terms of the ECA or such other Assigned Agreement and the terms hereof, exercise its rights and remedies thereunder, at law, in equity or otherwise solely as follows, subject in all cases to the provisions of Articles 4.6 and 4.9:

(a)     first, if [AAA] has the right to draw upon any ECA Security, [AAA] shall provide a written demand to the Generator for the payment of its claim within [•] days from the date of [AAA]’s demand;

(b)     after the expiry of such period, it shall proceed against such ECA Security to the extent such claim has not been satisfied by payment from the Generator and funds are available to be drawn under such ECA Security;

(c)     then, in the event that such claim is not satisfied in full by the ECA Security, exercise its other rights under the ECA (including its step-in rights pursuant to Article 12.5 thereof and its termination rights pursuant to Article 12.6 thereof); and

(d)     finally, in the event that the ECA has been terminated in accordance with the provisions hereof for Material Default of the Generator and the Termination Payment has been paid in the full amount required by the ECA in accordance with the requirements of Article 3.1, exercise its rights under the Deed to foreclose on the Generator’s Interest.

 

4.6        Notice of Default; Cure Rights; Limitation on Exercise. 

(a)     [AAA] shall deliver to the Trustee:

(i)  concurrently with the delivery thereof to the Generator, a copy of any notice to the Generator of any Default or Material Default by the Generator under the ECA or any other breach of any provision thereof or of any other Assigned Agreement, or notice of termination, arbitration, Expert resolution of a dispute, claim of force majeure or request that an indemnity payment be made by the Generator under any Assigned Agreement; and

(ii) as soon as reasonably practicable, written notice thereof if it becomes aware of a Material Default by the Generator under the ECA or an event of default by the Generator under any other Assigned Agreement.

(b)     Notwithstanding anything herein or in the ECA or any other Assigned Agreement to the contrary (but without limiting the provisions hereof), [AAA] agrees that it will not exercise its step-in rights under Article 12.5 of the ECA, its termination rights under Article 12.6 of the ECA or any other right or remedy, whether pursuant to the ECA, any other Assigned Agreement, at law, in equity or otherwise (except as set forth in the proviso at the end of this Article 4.6(b)), in respect of a Material Default, abandonment or other default by the Generator unless:

(i)  it has delivered to the Trustee written notice of its intent to exercise such rights, which notice shall specify the Material Default, abandonment or other default by the Generator giving rise to such rights; and

(ii) it has provided the Trustee on behalf of the Secured Parties with a period of [•] days (or, in the case of payment defaults, [•] days from the date of the receipt by the Trustee of the notice referred to in Article 4.6(b)(i)) to cure such Material Default, abandonment or other default; provided, however, except in the case of payment defaults, if the Trustee or any other Secured Parties shall have promptly commenced the taking of steps necessary to effect such cure and is diligently pursuing such attempted cure, such [•]-day period shall be extended for as long as reasonably necessary for the Trustee or such other Secured Parties to complete such cure (it being agreed that in the event of any bankruptcy, insolvency or other related or similar proceeding affecting the Generator which precludes the Trustee or such other Secured Parties from completing such cure, such period shall be additionally extended by the duration of such preclusion);

provided, however, that [AAA] may, subject to the provisions of Article 4.5, bring a claim for damages against the Generator under the ECA or any other Assigned Agreement without providing the Trustee with a cure period.

(c)     In the event of a Material Default by the Generator, [AAA] may purchase the Senior Loans on such terms as the Senior Lenders and [AAA] agree, provided, that, in all cases the amount required to be paid by [AAA] for such purchase shall be no less than the amount that would otherwise be due from the Generator under the Financing Documents in the event of a mandatory prepayment of the full amount of all of the Senior Loans then outstanding.

 

4.7        Limitation on Assignees of Generator’s Interest.  Any person whom the Trustee proposes to:

(a)     be assigned the rights and interests of the Generator under the ECA or any other Assigned Agreements pursuant to Article 2.1(f) and who has elected to assume the Generator’s obligations and liabilities under the ECA or other relevant Assigned Agreement; or

(b)     enter into a new Assigned Agreement with [AAA] pursuant to Article 5.2(d),

shall be reasonably acceptable to [AAA], provided that such acceptance shall only be withheld (and notwithstanding Article 1.4(k)) if the Trustee fails to demonstrate to [AAA]’s reasonable satisfaction that:

(i)  the person has the legal capacity, power and authority to assume the Generator’s obligations under the Assigned Agreements;

(ii) the person has sufficient legal capacity and the technical and financial resources available to it reasonably sufficient to perform the Generator’s obligations under the Assigned Agreements; and

(iii) the person shall not be the person and shall not control, be under common control with or be controlled by any person (A) that controlled the Generator prior to such assignment or termination, (B) the actions or omissions of which materially contributed to a Material Default by the Generator, or (C) that acquired an interest in the Generator in breach of Article 6 of the Proponent’s Agreement.  For purposes of this Article 4.7(b)(iii), “control” as used with respect to any person means possession, directly or indirectly, of the power to direct or cause the direction of management or policies of such person (whether through ownership (beneficial or otherwise) of voting securities or partnership or other ownership interests, by contract or otherwise); provided, that, for purposes of this Article 4.7(b)(iii) The Export-Import Bank of Korea shall not be considered to control, be under common control with or be controlled by [DDD], the Generator or any Affiliate of either of them.

 

4.8        Assignee Obligations.  In the event that:

(a)     the rights and interests of the Generator under the ECA are assigned pursuant to Article 2.1(f) and such person has elected to assume the Generator’s obligations and liabilities under the ECA or other relevant Assigned Agreement; or

(b)     the Trustee or designee of the Trustee executes a new Assigned Agreement with [AAA] pursuant to Article 5.2(d),

such assignee, the Trustee (not individually but rather in its capacity as a representative of the Secured Parties under the Security Documents), or such designee (as the case may be) shall:

(i)  assume all of the Generator’s obligations and liabilities under the relevant Assigned Agreements accruing after the effective date of such assumption;

(ii) be required to cure any payment defaults of the Generator to [AAA] under the      relevant Assigned Agreements, and the effectiveness of the assignment or new         Assigned Agreement (as the case may be) shall be conditional upon any such payment defaults being cured (the date upon which such assignment or new Assigned Agreement (as the case may be) becomes effective being the “Relevant Date”);

(iii) be required to cure any non-payment Default, Material Default, abandonment or other default of the Generator under the relevant Assigned Agreement which by its nature is capable of being cured, prior to the later of the Relevant Date and the expiry of the cure period described in Article 4.6(b)(ii), provided, that, if such assignee, the Trustee or such designee (as the case may be) is taking the steps necessary to effect a cure and is diligently pursuing such cure, such period shall be extended for as long as reasonably necessary for such assignee, the Trustee or such designee to complete such cure (it being agreed that in the event of any bankruptcy, insolvency or other related or similar proceeding affecting the Generator which precludes such assignee from completing such cure, such period shall be additionally extended by the duration of such preclusion).  If the Relevant Date occurs but such default has not been cured by the expiry of the relevant cure period, [AAA] shall be entitled to terminate the Assigned Agreement with immediate effect by notice served on the Trustee and any assignee or designee if it otherwise would have the right to terminate such Assigned Agreement pursuant to the terms thereof or otherwise pursuant to applicable law; and

(iv) otherwise become subject to the provisions of the Assigned Agreements on or prior to the effective date of the assignment with the obligation to perform thereunder in the same manner as the Generator would have been obliged to perform the obligations thereafter accruing.

In the case of an assignment pursuant to Article 2.1(f), the assignee shall enter into any documents or instruments reasonably requested by [AAA] to effect or evidence the assignment and [AAA] shall, at the expense of the Generator, execute any documents or instruments reasonably requested by the Trustee to effect or evidence the assignment.

 

4.9        Step-In. 

(a)     If the Trustee does not exercise the right referred to in Article 4.6(b)(ii), then [AAA] shall be entitled to exercise its rights (subject to the performance of its obligations) to assume the Construction, Operation and Maintenance of the Power Station pursuant to Article 12.5.b of the ECA.

(b)     [AAA] agrees that in the event that it exercises its step-in rights pursuant to           Article 12.5.b of the ECA so as to assume the Construction, Operation and/or         Maintenance (as the case may be) of the Power Station:

(i)  it shall Maintain the Power Station, and if it elects to Construct or Operate the Power Station, it shall Construct and Operate the Power Station, in accordance with Good Operating Procedures, as otherwise required by the ECA, and in a manner that will maintain in full force and effect in accordance with the terms thereof and will not result in any release in liability of (A) any Contractor under any warranty provided by a Contractor with respect to any part of the Power Station the terms of which have been disclosed to [AAA] or (B) any insurance provided under any insurance policy required to be obtained and maintained by the Generator under the ECA or the Financing Documents the terms of which have been disclosed to [AAA], provided that the terms of such insurance are such that it is not vitiated or otherwise released as a result of [AAA] so exercising its rights pursuant to Article 12.5 b. of the ECA; and

(ii) it shall indemnify the Trustee, the Secured Parties and their respective officers, directors, employees and other agents or any of them, and their respective successors and permitted assigns, from and against, and reimburse each of them for, any and all present and future claims, damages, losses, liabilities, fines, penalties (including the voiding of any warranties), costs or expenses of whatever kind or character, including reasonable legal fees and expenses incurred by them, arising from or relating to any failure by [AAA] to fulfill its obligations set forth in Article 4.9(b)(i) to the extent attributable to such failure.

 

 

ARTICLE 5

Additional Agreements of the Parties

 

5.1        Certain Additional Agreements of the Trustee.

(a)     The Trustee undertakes to [AAA] to notify [AAA] promptly upon its actual knowledge of any acceleration of amounts due and owing under any of the Financing Documents and/or any cancellation by the Senior Lenders of any commitment to provide funding to the Generator and/or any enforcement procedure commenced under any of the Financing Documents.

(b)     The Trustee undertakes to [AAA] to notify [AAA] promptly upon its actual knowledge of the actual date upon which the Initial Disbursement is made by the Senior Lenders.

 

5.2        Certain Additional Agreements of [AAA].

(a)     Subject to Article 5.2(j), following receipt of notice of an Event of Default [AAA] shall:

(i)  treat the Trustee as entitled to give all notices and other communications to be given by the Generator under the Assigned Agreements and treat such notices, instructions or other communications as coming directly from the Generator; and

(ii) with effect as of the date of receipt of notice of an Event of Default, direct to the Trustee all notices, instructions or other communications arising out of or in connection with any Assigned Agreements.

Until receipt of any notice of an Event of Default, [AAA] shall continue to direct all notices and other communications arising out of or in connection with any Assigned Agreement to the Generator.

(b)     [AAA] shall perform its obligations under each Assigned Agreement in accordance with the terms thereof (it being understood that [AAA] shall be entitled to assert as a defense to performance under this Article 5.2(b) any defense which is available to it under such Assigned Agreement, and that [AAA] shall not have any obligations to the Trustee or the Secured Parties under this Article 5.2(b) other than those it has owing to the Generator).

(c)     [AAA] hereby acknowledges and agrees that, notwithstanding the appointment of the Trustee as attorney-in-fact of the Generator, all of the Generator’s obligations under any Assigned Agreement shall remain with the Generator and that the Trustee shall not have any obligation thereunder to [AAA] or any other person (except as provided in Article 2.1(e)).

(d)     [AAA] hereby agrees that, if:

(i)  any Assigned Agreement is terminated or rejected under any applicable provision of bankruptcy, reorganization or insolvency law and such rejection is approved by the appropriate bankruptcy court or government authority; and

(ii) within [•] days after such rejection or termination the Trustee shall certify in writing to [AAA] that it or its designee intends to perform the obligations of the Generator as and to the extent required under such Assigned Agreement (as if it had not been rejected or terminated),

[AAA] shall, so long as such Assigned Agreement shall not have otherwise been terminated by [AAA] for Material Default in accordance with the ECA and the terms hereof and subject to Articles 4.7 and 4.8, to the extent permitted by applicable law, enter into with the Trustee or such designee (as the case may be) a new Assigned Agreement (provided that [AAA]’s rights and obligations shall be the same as they were under the corresponding Assigned Agreement prior to termination) which shall be for the balance of the remaining term under the original applicable Assigned Agreement before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Assigned Agreement immediately prior to such rejection or termination (except for any requirements which have been fulfilled by the Generator and [AAA] prior to such rejection or termination). For avoidance of doubt, references in this Agreement to any “Assigned Agreement” shall be deemed also to refer to any such new Assigned Agreement in replacement thereof.

(e)     Without the prior written consent of the Trustee, [AAA] will not amend, supplement or otherwise modify any Assigned Agreement (other than the amendment and restatement on the Amendment and Restatement Date of the ECA pursuant to Article 2.2 of the ARA to be in the form of <Schedule B> Schedule A to the ARA) in any material manner or otherwise in any way which could reasonably be expected to result in any reduction in the amounts payable to the Generator, increase in the amounts payable by the Generator or increase in any costs of the Generator under any Assigned Agreement, provided, that [AAA] shall not be required to obtain the consent of the Trustee under this Article 5.2(e) to enter into, in the ordinary course of business, agreements with the Generator (i) specifically contemplated by the ECA or relevant Assigned Agreement, each as in effect on the date hereof, or by the ECA as amended and restated on the Amendment and Restatement Date pursuant to Article 2.2 of the ARA and (ii) necessary to implement the ECA or relevant Assigned Agreement, as the case may be.

(f)     [AAA] will not, without the prior written consent of the Trustee, consent to any sale, assignment, conveyance, setting over or transfer (other than pursuant to the Security Documents) by the Generator of its rights under any Assigned Agreement.

(g)     The Trustee acknowledges on behalf of the Secured Parties that Article 10 of the ECA requires that physical loss or damage insurance proceeds be used to repair and/or restore the Power Station in certain circumstances. The Trustee on behalf of the Secured Parties agrees not to take any action to prevent such application of proceeds and further agrees on behalf of the Secured Parties that the Secured Parties (i) will exercise their rights under the Financing Documents to allow the use of such physical loss or damage insurance proceeds in accordance with the requirements of Article 10 of the ECA and (ii) will release such proceeds as are in their possession to the Generator if the Generator is required to repair and/or restore the Power Station pursuant to Article 10 of the ECA. [AAA] agrees that, to the extent Article 10 of the ECA does not require physical loss or damage insurance proceeds to be used to repair and/or restore the Power Station, such physical loss or damage insurance proceeds shall be applied in accordance with the terms of the Financing Documents and [AAA] agrees not to take any action to prevent such application of proceeds and further agrees to exercise its rights under the ECA to allow the use of such physical loss or damage insurance proceeds in accordance with the terms of the Financing Documents. [AAA] further agrees that notwithstanding anything in Article 10.4.a of the ECA to the contrary, to the extent that Article 10 of the ECA does require physical loss or damage insurance proceeds to be used to repair and/or restore the Power Station, such physical loss or damage insurance proceeds may, pending such use, be placed in one or more accounts in which the Secured Parties have a security interest and may be applied to repair and/or restore the Power Station in accordance with the terms of the Financing Documents without the need for [AAA] to concur with such application.

(h)     [AAA] hereby acknowledges that the Secured Parties have no obligation hereunder to extend credit to [AAA] at any time for any purpose.

(i)      At any time during which the ECA is effective, [AAA] shall not commence or join with any other person (other than at the request of and with the Trustee or the Secured Parties) in commencing any proceeding against the Generator under any bankruptcy, reorganization, liquidation, insolvency or similar law or statute now or hereafter in effect in any jurisdiction, provided that [AAA] shall not be prohibited by this Article 5.2(i) from participating in any such proceedings if they have been commenced by any other person.

(j)      If [AAA] receives written notice from the Trustee that an Event of Default has occurred and [AAA] believes in good faith that there is a conflict between any notice, instruction or other communication given by the Generator under the ECA (each a “Generator Notice”), on the one hand, and any notice, instruction or other communication given by the Trustee (each, a “Lender Notice”), on the other hand, then [AAA]:

(i)  shall notify the Trustee and the Generator; and

(ii) unless otherwise directed by the Trustee within [•] days of the date such notice is delivered, give effect to the Lender Notice only provided that if [AAA] takes action or refrains from taking action pursuant to a Generator Notice and subsequently receives a Lender Notice which [AAA] believes in good faith to be inconsistent with the Generator Notice, [AAA] shall have no liability to the Generator, the Trustee or any Secured Party for each earlier action or inaction.  The Generator hereby consents to [AAA] giving effect to the Lender Notice as contemplated by this Article 5.2(j).

 

5.3        Certain Additional Agreements and Acknowledgments of the Generator and the Trustee.

(a)     The Generator shall, as soon as reasonably practicable, submit (or procure the submission) to [AAA] copies of (and otherwise advise [AAA] of) all material changes to or in the instruments from time to time constituting the Financing Documents.  The Trustee shall provide [AAA] with copies of all changes to or in the instruments from time to time constituting the Financing Documents that could reasonably be expected to result in an increase in the amount required to be paid by [AAA] as the Buyout Price or as the Termination Price (as the case may be) from the amount that would have been required without such change.

(b)     The Generator shall, as soon as reasonably practicable, notify (or procure the notification of) [AAA] of (i) any debt or other financings relating to the Project by the Generator (other than the taking out of any loans to finance Construction, upon completion of Construction); and (ii) the occurrence of the Lending Agreement Repayment Date.

(c)     The Generator shall continue to be liable for all of its obligations and liabilities, whenever occurring, under or arising from each of the Assigned Agreements notwithstanding any provisions of this Agreement (other than Articles 5.2(g), 5.4(a), 5.4(d), 6.2(g), 6.2(h), 6.2(i), 6.2(k), 6.2(m), 6.4 and 9).

(d)     The Generator joins in this Agreement to acknowledge for itself the arrangements effected hereby and agrees with the Trustee on behalf of the Secured Parties and [AAA] to observe the provisions of this Agreement at all times and not in any way to prejudice or affect the enforcement hereof or to do or permit to be done anything which would be a breach hereof.

 

5.4        Certain Additional Agreements Regarding the ECA. 

(a)     Notwithstanding the provisions of Article 3.6.a.ii. of the ECA, [AAA] agrees that the Generator shall not be obligated as a result of any notice under that Article to make any change to its designs, plans or major equipment for the Power Station or to the specifications for the Power Station which could reasonably be expected to:

(i)  cause the Power Station to be out of compliance or otherwise inconsistent with     the environmental requirements of those Secured Parties constituting            governmental export credit agencies or any requirements of Law; or

(ii) cause the Generator to be unable to drawdown any financing otherwise available to it as result of a failure to meet the eligibility requirements of a Secured Party constituting a governmental export credit agency,

unless and until any such change has been approved in writing by the Trustee.

(b)     Notwithstanding the granting by the Generator of the security interests referred to in Article 2.1, until it is notified by the Trustee that an Event of Default has occurred, [AAA] shall be entitled (except to the extent expressly provided otherwise in this Agreement) to exercise or enforce all rights, discretions and remedies under or in respect of the Assigned Agreements or the Generator’s Interest and to perform or discharge its obligations under the Assigned Agreements to the Generator as if the Generator was at all times the absolute and beneficial owner of all right, title, benefit and interest in and to the ECA and the Generator’s Interest.

(c)     The Parties:

(i)  agree that any act done, document executed or entered into or waiver given by the Trustee shall be deemed conclusively to have been duly authorized by each of the Secured Parties and the Generator;

(ii) shall not be obliged to make any enquiry as to the authority of the Trustee in doing, executing, entering into or giving such act, document or waiver;

(iii) agree that, where the Trustee is entitled to give any notice and no such notice is given, the Trustee shall be deemed conclusively to have been duly authorized not to give such notice; and

(iv) agree that any information given to the Trustee by the Generator or [AAA] shall be deemed conclusively to have been communicated to each of the Secured Parties.

(d)     [AAA] and the Generator hereby confirm and agree that:

(i)  the Effective Date has occurred; and

(ii) each of the ECA, the ARA, the Deed, the Proponent’s Agreement, the Site MOA, the Foreshore Lease MOA, the Agreement Regarding Foreshore Lease, the ECC MOA and the FSMA is in full force and effect and (other than the amendments to Articles 2.4.b. and 2.4.f. of the ECA pursuant to Article 2.4 of the ARA) has not been amended, supplemented or modified and, as of the Amendment and Restatement Date, the ECA as amended and restated pursuant to Article 2.2 of the ARA to be in the form of <Schedule B> Schedule A to the ARA will be in full force and effect. 

(e)     [AAA] confirms and agrees that the GSPA is the contract referred to in Article 2.1.b.iv of the ECA and that it came into effect on or before [•], 20[•].

(f)     [AAA] confirms and agrees that none of [AAA]’s rights or obligations under the ECA, the ARA, the Deed, the Proponent’s Agreement, the Site MOA, the Foreshore Lease MOA, the Agreement Regarding Foreshore Lease, the ECC MOA or the FSMA has been transferred or assigned by [AAA] and that except for the assignment referred to herein, [AAA] has not received any notice of transfer or assignment of or lien granted on any of the ECA, the ARA, the Deed, the Proponent’s Agreement, the Site MOA, the Foreshore Lease MOA, the Agreement Regarding Foreshore Lease, the ECC MOA and the FSMA or the Generator’s or [DDD]’s rights thereunder by the Generator or [DDD].

 

 

ARTICLE 6

Representations and Warranties; Certain Covenants

 

6.1        Representations and Warranties of the Trustee. The Trustee hereby represents and warrants to [AAA] as of the date hereof that:

(a)     It is a national banking association, duly organized and existing under the laws of its formation with the organizational or other power and authority to enter into, execute, deliver and perform this Agreement.

(b)     It has taken all necessary organizational or other action to enter into, execute, deliver and perform this Agreement, and such will not constitute a breach of any agreement or arrangement to which it is party.

(c)     This Agreement has been duly executed and delivered by it and constitutes the legal, valid and binding obligation of it, enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally.

(d)     It has not offered any government officer and/or [AAA] official or employee any consideration or commission for this Agreement nor has it exerted or utilized any corrupt or unlawful influence to secure or solicit this Agreement for any consideration or commission; it shall not subcontract the performance of any of its obligations under this Agreement to any person known by it to be an official or employee of [AAA] (or a relative within the third degree of consanguinity or affinity of any such official or employee) who is directly or indirectly involved in contract awards or project prosecution, and if any commission is paid to any person by it, the Trustee shall disclose the name of the person and the amount to be paid. Notwithstanding anything elsewhere contained in this Agreement, it is agreed by the Trustee that if there is any material violation of this Article 6.1(d), [AAA] may terminate this Agreement and/or deduct from amounts payable by [AAA] under this Agreement an amount equal to the consideration or commission paid, without prejudice to the filing of civil or criminal action under the Anti-Graft law and other applicable laws against the Trustee and officials and employees of [AAA] and the government.

 

6.2        Representations and Warranties of [AAA].  [AAA] hereby represents and warrants to the Trustee on behalf of the Secured Parties that each of the following is true and correct as of the date hereof and will be true and correct as of the Amendment and Restatement Date after giving effect to the amendment and restatement of the ECA to be in the form of <Schedule B> Schedule A to the ARA: 

(a)     The execution, delivery and performance by [AAA] of this Agreement, the ECA, the ARA, the Site MOA, the Foreshore Lease MOA, the Agreement Regarding Foreshore Lease, the ECC MOA and the FSMA and the consummation of the transactions contemplated hereby and thereby:

(i)  have been duly authorized by all necessary corporate or other action; and

(ii) do not conflict with, result in a breach of or constitute a default under any provision of the certificate of incorporation, by laws or other constituent documents or any agreement or instrument to which [AAA] is a party or by which [AAA] or its properties and assets are bound or affected.

(b)     This Agreement, the ECA, the ARA, the Site MOA, the Foreshore Lease MOA, the Agreement Regarding Foreshore Lease, the ECC MOA and the FSMA have been duly executed and delivered by [AAA] and constitute the legal, valid and binding obligations of [AAA], enforceable against [AAA] in accordance with their respective terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally.

(c)     Each government approval required for the execution, delivery or performance of this Agreement, the ECA, the ARA, the Site MOA, the Foreshore Lease MOA, the Agreement Regarding Foreshore Lease, the ECC MOA and the FSMA by [AAA] has been validly issued and duly obtained, taken or made, is not subject to any condition, does not impose restrictions or requirements inconsistent with the terms hereof or thereof, as the case may be, is in full force and effect and is not subject to appeal.

(d)     The Agreement for the Sale and Purchase of Natural Gas dated [•], 20[•] (the “GSPA”) among [AAA], [EEE Inc.] and [FFF Inc and Payment Agreement dated [•], 20[•] among the Government of the [Name of the Country] (acting through the Department of Energy), [AAA] and [FFF]) has not been amended, supplemented or modified in any material way. None of [AAA]’s rights or obligations under the GSPA have been transferred or assigned by [AAA].

(e)     There is no action, suit or proceeding at law or in equity by or before any Government Authority, arbitral tribunal or other body now pending or to the best of [AAA]’s knowledge, threatened, against or affecting [AAA] or any of its properties, rights or assets which questions the validity, binding effect or enforceability of this Agreement, any Assigned Agreement, the Deed, the Proponent’s Agreement or the GSPA or any action taken or to be taken pursuant hereto or thereto or any of the transactions contemplated hereby or thereby.

(f)     To the best of [AAA]’s knowledge, no event or condition exists which would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable [AAA] to terminate or suspend its obligations under any of the Assigned Agreements, the Deed or the Proponent’s Agreement.

(g)     [AAA] has been informed that the Contractors listed on Exhibit B attached hereto are to provide the equipment or services listed in paragraph 2.3 of Section 2 of the First Schedule to the ECA and [AAA] has approved each such Contractor as contemplated by Article 2.5.b.ii.aa.(ii) of the ECA.

(h)     [AAA] has been informed of the provisions of each of the agreements made by the Generator in relation to the Construction of the Power Station (including the contracts referred to in paragraph 1.10 of the First Schedule to the ECA and the Construction Contracts) and which are listed on Exhibit C attached hereto (the “Listed Agreements”). The Listed Agreements address to [AAA]’s satisfaction the matters contemplated by Article 2.5.b.ii.bb and Article 13.1 of the ECA.  < In [AAA]’s reasonable opinion, there is no inconsistency between the Generator’s obligations under the ECA and any Listed Agreement.>

(i)      [AAA] has received confirmation from the Contractors under the Construction Contracts, each in a form acceptable to [AAA], of their acceptance of the matters mentioned in Article 2.5.ii.bb. of the ECA, as required by Article 2.5.b.iii. thereof.

(j)      [AAA] has been informed of all major pieces of equipment to be incorporated in the Power Station and which are listed on Exhibit D attached hereto (the “Listed Equipment”).

(k)     [AAA] and the Generator have not entered into any agreements with each other relating to the Construction, Operation and Maintenance of the Transmission Line and the Natural Gas Pipeline other than the ECA, the ARA and the FSMA.

(l)      The Generator has complied with or [AAA] has waived all of the requirements set forth in paragraphs a.i., ii. and iv. of Article 2.2 of the ECA and [AAA] has irrevocably and unconditionally waived its rights to receive from the Generator the payments specified in paragraphs 1, 2 and 4 of the Third Schedule to the ECA.  Upon the making of the Initial Disbursement by the Senior Lenders, Financial Closing shall have occurred, the Generator shall have compiled with the requirements set forth in Article 2.2.a.iii of the ECA and [AAA] shall have unconditionally and irrevocably waived its rights to receive from the Generator the payments specified in paragraph 3 of the Third Schedule to the ECA.

(m)    [AAA] has been informed of the terms of all of the insurance policies required to be obtained and maintained by the Generator under the ECA during the Construction of the Power Station and pursuant to Article 6 of the ECA and which are listed on Exhibit E attached hereto, and the terms thereof are no less favorable to the insured in the terms of risks covered than are currently normally effected by [AAA] in respect of its own similar operations.

 

6.3        Representations and Warranties of the Generator.  The Generator hereby represents and warrants to [AAA], the Trustee and the Secured Parties that:

(a)     As of the date of this Agreement, it is a corporation duly organized and existing under and by virtue of the laws of [Name of the Country], and has the corporate power and authority to enter into, execute, deliver and perform this Agreement.

(b)     It has taken all necessary corporate action to enter into, execute, deliver and perform this Agreement and such action will not constitute a breach of any agreement or arrangement to which it is party.

(c)     The facilities extended to the Generator under the Financing Documents are for use only in respect of the Project.

(d)     The security interests in favor of the Trustee for the benefit of the Secured Parties referred to in Article 2 shall secure only the performance by the Generator and the other parties thereto of obligations to the Secured Parties under the Financing Documents.

 

6.4        Certain Covenants of [AAA].

(a)    [AAA] agrees that the provisions of <Articles 2.5.b.ii and 13.1> Article 13.1 of the ECA shall hereafter be applicable only to amendments or modifications of the Listed Agreements.

(b)    [AAA] hereby agrees that the Managerial and Technical Services Agreement dated as of [•], 20[•] between the Generator and [DDD] does not constitute an O&M Contract for any purpose under the ECA.

(c)    [AAA] will not assert that the Generator has failed to demonstrate to [AAA]’s reasonable satisfaction, as contemplated by Article 3.6.a.i.bb of the ECA, that each piece of Listed Equipment is of a technology or type which has operated successfully for not less than [•] Year as and at the date the construction activities referred to in Article 2.2.a.iv of the ECA commenced and will not exercise and hereby irrevocably waives any and all of its rights and remedies under the ECA, at law, in equity or otherwise arising out of or otherwise relating to any such failure.

(d)   Promptly upon receipt of a copy of a “Notice of Borrowing” from the Generator to the Trustee and the Senior Lender’s administrative agent and a request to [AAA] from the Generator to issue to the Trustee the confirmation referred to in this <Article 6.4(d)> Article 6.4(c), [AAA] shall deliver to the Trustee an irrevocable confirmation (in the form of Exhibit F attached hereto) that the ECA shall be amended and restated pursuant to Article 2.2 of the ARA to be in the form of <Schedule B> Schedule A to the ARA automatically upon the making by the Senior Lenders to the Borrower of the loans (or any portion thereof) requested in such Notice of Borrowing.  The date upon which such loans are made and the ECA is so amended and restated is referred to herein as the “Amendment and Restatement Date.”

 

 

ARTICLE 7

Assignments and Transfers

 

7.1        Assignments and Transfers.

(a)     No Party shall assign or transfer any part of its respective rights or obligations under this Agreement except as provided otherwise below.

(b)     The Trustee may (subject to the successor Trustee entering into a deed of accession or other document reasonably required by [AAA] to ensure that such        successor Trustee is bound by the terms of this Agreement) assign or transfer its rights and obligations to a bank or financial institution as a successor Trustee under any of the Financing Documents without the consent of [AAA] or the Generator, provided that:

(i)  any such proposed bank or financial institution has sufficient legal capacity and financial and technical resources to become a Party to and perform its obligations under this Agreement;

(ii) any such proposed bank or financial institution or any owner or Affiliate of such proposed bank or financial institution is not on any list of entities published by the [Name of the Country] as entities with which it or any subdivision of it will not enter into contractual relations (provided that [AAA] shall provide the Trustee with a copy of such list upon their request from time to time); and

(iii) any such assignment or transfer shall be without prejudice to the rights and remedies of [AAA] against the Trustee in respect of any previously accrued liabilities of the Trustee under this Agreement as of the date of such assignment or transfer.

(c)     [AAA] shall be entitled to, and shall assign or transfer its rights and/or obligations under this Agreement to, any person which becomes a party to the ECA as a result of an assignment by [AAA] pursuant to Article 13.3 of the ECA.

(d)     The Generator shall be entitled to, and shall transfer its obligations under this Agreement to any person to which it transfers its obligations under (and in accordance with) the ECA and the Financing Documents, subject to all necessary approvals.

 

 

ARTICLE 8

[AAA]’s Obligations

 

8.1        Except for the agreements, obligations, undertakings and liabilities under Articles 5.2(g), 5.4(a), 5.4(d), 6.2(g), 6.2(h), 6.2(i), 6.2(j), 6.2(k), 6.2(m), 6.4 and 9, all the agreements, obligations, undertakings and liabilities given, undertaken or arising on the part of [AAA] under this Agreement are given or owed solely to the Trustee on behalf of the Secured Parties and shall not confer any rights on or in favor of the Generator.

 

 

ARTICLE 9

Miscellaneous

 

9.1        Arbitration.

(a)     In the event of any dispute, controversy or claim arising out of, or relating to, this Agreement, or the breach, termination or validity hereof, including this Article 9 (a “Dispute”), such Dispute shall be solely and finally resolved by arbitration to be conducted in Singapore by the International Chamber of Commerce (“ICC”) in accordance with the then effective Rules of Arbitration of the ICC without reference to any other procedural law; provided, however, that any such Dispute arising between [AAA] and the Generator out of or relating to the ECA or that raises issues that relate to any dispute under the ECA or otherwise could affect the relationships or rights under the ECA shall be settled in accordance with Article 17 of the ECA.

(b)     Any such arbitration hereunder shall be conducted as follows:

(i)  All proceedings in such arbitration shall be conducted in English and transcripts of such proceedings shall be prepared in English.

(ii) There shall be three (3) arbitrators all of whom shall be fluent in English.  All of the arbitrators shall be appointed by the International Court of Arbitration of the ICC, which shall also appoint one of the three (3) arbitrators as Chairman of the arbitration panel. The arbitrators so appointed shall not have the power to amend this Agreement.

(c)     In resolving any Dispute, the arbitrators shall apply the substantive laws of [Name of the Country].  The arbitral award shall be final and binding on the parties, and the parties agree to comply with the award. If any Dispute arises and is submitted to arbitration, no Party shall request a court of law or any other authority to invalidate, amend or review substantive or procedural aspects of the award; provided, however, any Party may seek from a court of law or other government body with competent jurisdiction, including proper courts of [Name of the City], [Name of the Country], an injunctive relief in support of the arbitration proceeding pending the rendition of the arbitral award or a judgment or court order to enforce the arbitral award against another Party. The Parties exclude any right of application or appeal to any courts in connection with any question of law arising in the course of the arbitration or with respect to any award made.

(d)     The prevailing Party in any arbitration shall be entitled to receive reimbursement of its reasonable expenses in connection therewith, including attorneys’ fees and disbursements.

(e)     Without prejudice to Article 9.1(a), to the extent that the Parties agree, or the arbitrators rule, that (i) any Dispute is related to one or more disputes that are pending with respect to the Project, with one or more common parties being involved, (ii) such other disputes are being arbitrated, and (iii) judicial economy could be achieved and/or the possibility of conflicting outcomes avoided if the arbitrations regarding the various disputes were to be joined and the issues presented wholly or partly in one proceeding, then the Parties and the arbitrators shall take all actions necessary or advisable to accomplish such joinder.

(f)     Any award of the arbitrators shall be enforceable by any court having jurisdiction over the Party against which the award has been rendered, or whatever assets of the Party against which the award has been rendered can be located, and shall be enforceable in accordance with the “United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)”.

(g)     It is the intent of the Parties that barring extraordinary circumstances, any arbitration hereunder shall be concluded within [•] days of the date of statement of claim is received by the arbitrators. The Parties may by agreement extend such [•]-day period, or the arbitrator may determine that the interests of justice otherwise require.  Failure to conclude any arbitration within such [•] day period shall not be a basis for challenging the award.

 

9.2        Miscellaneous.

(a)    

(i)  This Agreement is governed by and shall be interpreted in accordance with the laws of the [Name of the Country].

(ii) To the extent that any Party may in any jurisdiction claim for itself or its assets or revenues immunity from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other legal process and to the extent that in any such jurisdiction there may be attributed to itself or its assets or revenues such immunity (whether or not claimed), that Party agrees not to claim and irrevocably waives such immunity to the full extent permitted by the laws of such jurisdiction.

(iii) No Party shall be relieved of any obligation under this Agreement pending the resolution of a Dispute pursuant to Article 9.1 or otherwise.

(b)     Whether or not explicitly required under any provision of this Agreement, all notices and other communications required or permitted between the Parties pursuant to this Agreement shall be in writing and either hand delivered or sent by pre-paid letter or facsimile to the address or number of the Party concerned as set forth on the signature pages hereof. A Party may change its address or number on fifteen days written notice. A notice or communication shall be deemed to have been received: (i) if sent by hand, pre-paid letter or international courier service, when delivered or (ii) if sent by facsimile, upon sending, subject to: (A) confirmation of uninterrupted transmission by a transmission report and (B) there having been no telephone communication by the recipient to the sender (any such telephone communication to be confirmed in writing) that the facsimile has not been received in legible form (I) within [•] hours after sending, if sent on a Business Day and between the hours of [•] am. and [•] p.m. or (II) by noon on the next following Business Day if sent after [•] p.m. on a Business Day but before [•] am. on the next following Business Day; provided, that any notice or communication given by fax shall be confirmed by letter sent by hand, post or international courier service, but without prejudice to the original fax notice if received in accordance with this Article 9.2. Notwithstanding the foregoing, any notice or communication to the Trustee or [AAA] shall only be effective upon receipt.

(c)     No purported amendment or modification of this Agreement shall be valid unless in a writing executed by the Trustee and [AAA] and, in the event that such amendment or modification affects the Generator’s rights or obligations hereunder, by the Generator (provided that (i) during the continuance of an Event of Default, the Trustee may, and (ii) any assignee of the Generator’s rights and interests under the ECA pursuant to Article 2.1(f) may, execute such writing on behalf of the Generator).

(d)     Except where specifically provided otherwise in this Agreement, the duties, obligations and liabilities of the Parties are several and not joint or collective, each Party shall be liable only for its own obligations and nothing contained in this Agreement shall be construed as creating any association, trust, partnership or joint venture.

(e)     No provision of this Agreement shall be considered waived by any Party except when such waiver is given in writing. The failure of any Party to insist, in any one or more instances, upon strict performance of any of the provisions of this Agreement or to take advantage of any of its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights for the future, but the same shall continue and remain in full force and effect.

(f)     No failure by [AAA] to exercise or delay in exercising any rights of [AAA] under or in relation to the ECA (whether or not arising out of or in connection with or as a consequence of the discharge of [AAA]’s rights under this Agreement) shall be construed as a waiver of any such right nor shall it affect the validity of the ECA or any part thereof or the right of [AAA] to enforce any provision of the ECA in accordance with its terms.

(g)     This Agreement and the documents referred to herein constitute or expressly refer to the entire agreement between the Parties in respect of the subject matter hereof and all previous agreements, arrangements, understandings and representations (including the tender invitation, bid documents and questions and answers to questions in respect of the subject matter hereof), express or implied and whether written or oral, are of no force or effect.

(h)     If any provision hereof is invalid and unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (i) the other provisions hereof shall remain in full force and effect in such jurisdiction, (ii) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction and (iii) to the extent practicable, invalid or unenforceable provisions shall be replaced by valid and enforceable provisions having the same economic effect on the Parties as was intended by the invalid or unenforceable provisions.

(i)      This Agreement may be executed in any number of counterparts which, when taken together, shall constitute one and the same agreement.

(j)      This Agreement and the rights and obligations of the Parties hereunder shall terminate upon the earliest of (i) the indefeasible payment in full, in Dollars, of all Outstanding Financing Obligations, of which the Trustee shall notify [AAA] as soon as practicable afterwards, (ii) the giving of written notice of termination of this Agreement by the Trustee to [AAA], (iii) the indefeasible payment in full by [AAA] of the Buyout Price in the full amount required by the ECA and otherwise in accordance with the requirements of the ECA and Article 3.1, (iv) the indefeasible payment in full by [AAA] of the Termination Price in the full amount required by and otherwise in accordance with the requirements of the ECA and Article 3.1, (v) the termination of the ECA pursuant to Article 12.6.d thereof, (vi) the expiry of the ECA, or (vii) the termination of the ARA in accordance with Article 2.2 thereof.

(k)     [AAA] and the Generator hereby agree that the Trustee may exercise any of its rights, remedies, powers, discretions and authorities hereunder through its agent, designee, attorney-in-fact or any person designated as its co-trustee and any of such person’s agents, designees or attorneys-in-fact.

 

 

AS WITNESS the hands of the authorized representatives of the Parties hereto on

 

 

[•] , 20[•].

[AAA CORPORATION]                           [BBB CORPORATION]

 

By:__________________________         By:_________________________

[Address]                                                  [Address]

 

Name : [•]                                                  Name : [•]

Title : [•]                                                    Title : [•]

 

 

[CCC BANK],

not in its individual capacity but solely in its capacity

as Trustee 

 

By:_________________________

[Address]

Name : [•]

Title : [•]

 

 

 

 

EXHIBIT A

 

CERTAIN DEFINED TERMS

 

Each of the following terms shall have the meaning set forth in that certain Common Agreement by and among the Generator and the lenders and agents party thereto, being Volume II of the Omnibus Agreement dated as of [•], 20[•]:

 

“Event of Default”

“Financing Document”

“Initial Disbursement”

“Project”

“Secured Parties”

“Security Documents”

“Senior Lenders”

“Senior Loans”

 

EXHIBIT B

 

LIST OF CONTRACTORS

 

 

1.          Gas Turbines : [•]

2.          Steam Turbines : [•]

3.          Generators : [•]

4.          Heat Recovery Steam Generators : [•]

5.          Main Transformers : [•]

6.          [•]kV Equipment

a.           Circuit Breaker : [•]

b.          Disconnect Switch : [•]

c.           Ground Switch : [•]

7.          Diesel Generators : [•]

8.          Circulating Water Pumps : [•]

9.          Boiler Feedwater Pumps : [•]

 

EXHIBIT C

 

LIST OF CONSTRUCTION, OPERATION AND/OR MAINTENANCE AGREEMENTS

 

1.          Amended and Restated Contract between [BBB Corp.] and [•] Ltd. for the Construction of a [•] MW Gas Fired, Combined Cycle Generating Plant in [Name of the City], [Name of the Country]

 

2.          Amended and Restated Contract among [BBB Corp.], [•] Inc. and [•] Corporation for the Engineering and Procurement of [•] MW Gas Fired, Combined Cycle Generating Plant in [Name of the City], [Name of the Country]

 

3.          Amended and Restated Supplemental Agreement among [BBB Corp.], [•] Ltd., [•], Inc. and [•] Corporation

 

4.          Operation and/or Maintenance Agreement : None

 

5.          Agreement for Diesel Fuel Oil Unloading Terminal Construction dated [•], 20[•] between [BBB Corp.] and [•], Inc.

 

 

EXHIBIT D

 

LIST OF MAJOR PIECES OF EQUIPMENT

 

1.          Gas Turbines

2.          Steam Turbines

3.          Generators

4.          Heat Recovery Steam Generators

5.          Main Transformers

6.          [•] kV Equipment

a.           Circuit Breaker

b.          Disconnect Switch

c.           Ground Switch

7.          Diesel Generators

8.          Circulating Water Pumps

9.          Boiler Feedwater Pumps

 

 

 

EXHIBIT E

 

LIST OF INSURANCE POLICIES

 

1.          Marine Cargo Insurance

 

2.          All Risks Builder’s Risk Insurance

 

3.          Third Party Liability Insurance

 

4.          Social Security System (for Workmen’s Compensation Insurance)

 

 

EXHIBIT F

 

FORM OF CONFIRMATION

[Letterhead of AAA]

 

 

[DATE]

 

 

[CCC BANK]

[Address]

Attention : [•]

 

 

 

Re :       [BBB Corp.]-Energy Conversion Agreement

 

Ladies and Gentlemen:

Reference is made to that certain Direct Agreement dated as of [•], 20[•] (the “Direct Agreement”) among [AAA CORPORATION] (“[AAA]”), [BBB CORPORATION] (the “Generator”) and [CCC BANK], not in its individual capacity but in its capacity as Trustee for the Secured Parties (the “Trustee”). All capitalized terms used and not otherwise defined herein shall have the meanings assigned to those terms in the Direct Agreement.

 

[AAA] hereby unconditionally and irrevocably confirms to the Trustee for the benefit of the Secured Parties that immediately and automatically upon the making of the loans (or any portion thereof) described in the Notice of Borrowing dated [•], 20[•] from the Generator to the Trustee and the Senior Lender’s administrative agent, and without being subject to any other conditions whatsoever, the ECA shall be amended and restated to be in the form of <Schedule B> Schedule A to the ARA and shall be in full force and effect as so amended and restated.

 

[AAA] hereby further confirms that each of the representations and warranties with respect to the ECA that are set forth in Article 6.2 of the Direct Agreement will be true and correct, on and as of the date that such loans (or any portion thereof) are made, with respect to the ECA as so amended and restated on such date.

 

The undersigned <in> is an officer of [AAA] authorized to execute and deliver this letter to the Trustee for the benefit of the Secured Parties by and on behalf of [AAA].

Sincerely,

 

 

 

[AAA CORPORATION]

 

By :                      

Name : [•]

Title : [•]

 

cc:  [BBB Corp.]

 

2_2 Direct Agreement.doc