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INDIVIDUAL FACILITY AGREEMENT, 영문계약서, 개별 시설 계약 본문
INDIVIDUAL FACILITY AGREEMENT
among
[AAA CORPORATION],
as Borrower
[BBB CORPORATION],
as Primary Lender
[CCC BANK],
as Alternate Lender
[DDD BANK],
as Facility Agent
[EEE CORPORATION]
as Administrative Agent
and
[FFF BANK]
Dated as of [•], 20[•]
TABLE OF CONTENTS
Section Page
BACKGROUND
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION............... 3
1.01 Defined Terms................................................................................................ 3
1.02 Principles of Construction.............................................................................. 3
PART I THE GUARANTEED CREDIT
SECTION 2. THE GUARANTEED CREDIT............................................................. 3
2.01 Amount........................................................................................................... 3
2.02 Availability..................................................................................................... 4
SECTION 3. DISBURSEMENTS................................................................................ 4
3.01 Disbursements................................................................................................ 4
3.02 Issuance of [FFF] Disbursement Letters of Credit........................................ 5
3.03 Funding the Issuing Bank.............................................................................. 8
3.04 IDC Disbursements........................................................................................ 9
3.05 Review of Disbursement Documents............................................................. 9
3.06 No Fiduciary Capacity................................................................................. 11
3.07 Basis of Determinations; Indemnification.................................................... 11
SECTION 4. TERMS OF THE GUARANTEED CREDIT....................................... 11
4.01 Principal Repayment..................................................................................... 11
4.02 Interest Payment........................................................................................... 12
4.03 Alternative Interest Rate.............................................................................. 13
4.04 Prepayment................................................................................................... 14
4.05 Recapture...................................................................................................... 16
4.06 Evidence of Debt......................................................................................... 17
4.07 Interest Rate Switch Option......................................................................... 18
4.08 Use of Proceeds............................................................................................ 19
4.09 Non-Receipt of Funds by the [FFF] Facility Agent..................................... 20
SECTION 5. CONDITIONS PRECEDENT.............................................................. 21
5.01 Conditions Precedent to First Disbursement................................................ 21
5.02 Conditions Precedent to Each Disbursement............................................... 22
5.03 Conditions Precedent to Each Utilization.................................................... 23
SECTION 6. FEES AND EXPENSES....................................................................... 25
6.01 Fees............................................................................................................... 25
6.02 Additional or Increased Costs...................................................................... 26
SECTION 7. THE [FFF] FACILITY AGENT AND THE LENDERS..................... 26
7.01 Appointment, Powers and Immunities......................................................... 26
7.02 Reliance by [FFF] Facility Agent................................................................. 26
7.03 Duties of [FFF] Facility Agent..................................................................... 28
7.04 No Obligation to Make Inquiries, Etc.......................................................... 28
7.05 Indemnification............................................................................................ 29
7.06 Extent of Responsibility............................................................................... 29
7.07 Waiver of Claims.......................................................................................... 30
7.08 Dealings with Parties.................................................................................... 30
7.09 Resignation or Removal of [FFF] Facility Agent......................................... 30
7.10 Replacement [FFF] Facility Agent............................................................... 31
7.11 Non-Reliance on [FFF] Facility Agent......................................................... 31
7.12 Agency Division Separate............................................................................ 32
7.13 No Duties Except as Specified..................................................................... 32
7.14 Govco Administrative Agent....................................................................... 32
SECTION 8. POST-COMPLETION FUNDING OPTIONS.................................... 32
8.01 Post-Completion Funding Options............................................................... 32
8.02 Selection of Post-Completion Funding Options.......................................... 33
PART II THE [FFF] CREDIT
SECTION 9. THE [FFF] CREDIT.............................................................................. 33
9.01 Amount of the [FFF] Credit......................................................................... 33
9.02 Credit Availability........................................................................................ 34
SECTION 10. TERMS OF THE [FFF] CREDIT....................................................... 34
10.01 Principal Repayment................................................................................... 34
10.02 Interest Payment......................................................................................... 35
10.03 Credit Commitment Fee............................................................................. 35
10.04 Voluntary Prepayment................................................................................ 36
10.05 Mandatory Prepayment.............................................................................. 36
10.06 [FFF] Note.................................................................................................. 37
SECTION 11. CONDITIONS PRECEDENT............................................................ 37
11.01 Conditions Precedent................................................................................. 37
11.02 Request for [FFF] Disbursement................................................................ 40
PART III COMMON PROVISIONS
SECTION 12. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT 40
12.01 Cancellation by the Borrower..................................................................... 40
12.02 Suspension and Cancellation by [FFF]....................................................... 41
12.03 Events of Default....................................................................................... 43
SECTION 13. REPRESENTATIONS, WARRANTIES AND COVENANTS....... 44
13.01 Representations and Warranties of the Borrower...................................... 44
13.02 Covenants of the Borrower........................................................................ 46
SECTION 14. PAYMENTS; TAXES; EXPENSES................................................... 46
14.01 Method of Payment.................................................................................... 46
14.02 Application of Payments............................................................................ 47
14.03 Taxes........................................................................................................... 48
14.04 Expenses; Indemnity.................................................................................. 49
SECTION 15. [FFF] FINANCING REQUIREMENTS............................................ 49
15.01 Eligibility for [FFF] Financing................................................................... 49
15.02 Coverage of [FFF] Guarantee.................................................................... 50
15.03 Cash Payment............................................................................................. 51
15.04 Ancillary Services....................................................................................... 51
SECTION 16. GOVERNING LAW AND JURISDICTION.................................... 51
16.01 Governing Law........................................................................................... 51
16.02 Submission to Jurisdiction.......................................................................... 51
16.03 Service of Process....................................................................................... 51
16.04 Waiver of Immunity................................................................................... 51
16.05 Waiver of Security Requirements............................................................... 51
SECTION 17. MISCELLANEOUS........................................................................... 52
17.01 Computations............................................................................................. 52
17.02 Notices........................................................................................................ 52
17.03 Disposition of Indebtedness....................................................................... 53
17.04 Benefit of Agreement................................................................................. 54
17.05 Termination of [FFF] Guarantee................................................................ 54
17.06 Disclaimer................................................................................................... 55
17.07 No Waiver; Remedies Cumulative............................................................. 55
17.08 Entire Agreement....................................................................................... 55
17.09 Amendment or Waiver............................................................................... 55
17.10 Counterparts............................................................................................... 56
17.11 Judgment Currency.................................................................................... 56
17.12 English Language....................................................................................... 56
17.13 Severability................................................................................................. 57
17.14 No Proceedings.......................................................................................... 57
17.15 Indemnification.......................................................................................... 57
17.16 Captions...................................................................................................... 58
17.17 Waiver of Jury Trial.................................................................................... 58
17.18 [FFF] as Subrogee...................................................................................... 58
17.19 Financing Documents................................................................................. 58
17.20 Limitation on Recourse.............................................................................. 58
Annex [OMITTED]
Annex A-1 - Form of Floating Rate Note
Annex A-2 - Form of Fixed Rate Note
Annex A-3 - Form of [FFF] Note
Annex B-1 - Utilization Procedures (
Exhibit 1 - Request for Reimbursement to Account of Borrower
Exhibit 1(a) - Itemized Statement of Payments
Exhibit 2 - [FFF] Supplier's Certificate
Exhibit 2(a) - [FFF] Supplier's Certificate (L/C Application)
Exhibit 2(b) - [FFF] Supplier's Certificate (Special Ancillary Services)
Exhibit 3 - Certificate Authorizing Reimbursement
Exhibit 4 - Request for Letter of Credit Approval
Exhibit 4(a) - Request for [FFF] Approval of Amendment to L/C
Exhibit 5 - Certificate Approving Letter of Credit
Exhibit 5(a) - Certificate Approving Amendment to Letter of Credit
Exhibit 6 - Request for [FFF] Facility Agent Approval of Amendment to Letter of Credit
Exhibit 6(a) - Notice of Letter of Credit Amendment
Exhibit 7 - Anti-Lobbying Certificate
Annex B-2 - Utilization Procedures (Local Cost Items)
Exhibit 1 - Request for Local Cost Reimbursement to Account of Borrower
Exhibit 1(a) - Itemized Statement of Local Cost Payments
Exhibit 2 - [FFF] Supplier's Certificate (Local Cost Items)
Exhibit 2(a) - [FFF] Local Cost Supplier's Certificate (L/C Application)
Exhibit 3 - Certificate Authorizing Local Cost Reimbursement
Exhibit 4 - Request for Letter of Credit Approval (Mixed Items)
Exhibit 4(a) - Request for [FFF] Approval of Amendment to Letter of Credit (Mixed Items)
Exhibit 5 - Certificate Approving Letter of Credit (Mixed Items)
Exhibit 5(a) - Certificate Approving Amendment to Letter of Credit (Mixed Items)
Exhibit 6 - Request for [FFF] Facility Agent Approval of Amendment to
Letter of Credit (Mixed Items)
Exhibit 6(a) - Notice of Letter of Credit Amendment
Exhibit 7 - Anti-Lobbying Certificate
Annex B-3 - Utilization Procedures (IDC)
Exhibit 1 - Notice of IDC Disbursement
Exhibit 2 - Request for IDC Disbursement
Annex C-1 - Form of CRC Review Notice
Annex C-2 - Form of Disbursement Review Notice - Common Agreement Conditions
Annex C-3 - Form of Utilization Conditions Review Notice
Annex D - Form of Request for [FFF] Disbursement to Account of Borrower
Exhibit 1 - Reconciliation Certificate - [FFF] Certificates
Exhibit 2 - Form of [FFF] Facility Agent's Letter
Annex X - Definitions and Principles of Construction
FACILITY AGREEMENT dated as of [•], 20[•] among [AAA CORPORATION], a corporation organized and existing under the laws of [Name of the Country] (the "Borrower"), [BBB CORPORATION] (the "Primary Lender"), [CCC BANK], acting through its International Banking Facility (the "Alternate Lender" and, together with its successors or permitted assigns as Alternate Lenders hereunder in accordance with Section 17.03(a) hereof, collectively the "Alternate Lenders"), [DDD BANK], a bank organized and existing under the laws of [Name of the Country], as facility agent for the Primary Lender and the Alternate Lender and their respective successors and permitted assigns (the "[FFF] Facility Agent"), [EEE CORPORATION], as administrative agent for the Primary Lender and the commercial paper holders of the Primary Lender (collectively, with any successors and permitted assigns, the "Administrative Agent") and [FFF BANK] ("[FFF]").
BACKGROUND
WHEREAS, the Borrower has undertaken to design, construct, finance, furnish, install, test, commission, own, operate and maintain a [•] MW natural gas fired combined cycle power plant with diesel fuel fire capability at [Name of the City], [Name of the Country] (the "Project");
WHEREAS, the Borrower, [FFF], [Name of the Bank], The Export-Import Bank of Korea, the [Name of the Bank] Co-Financing Lenders and [FFF] Facility Lenders party thereto, [Name of the Bank], as Administrative Agent, [GGG BANK], as [FFF] Facility Agent, [Name of the Bank], as Trustee, and the Hedge Banks party thereto have entered into a certain Common Agreement dated as of [•], 20[•] (as amended, modified and supplemented and in effect from time to time, the "Common Agreement"), which constitutes Volume 2 of a certain Omnibus Agreement dated as of [•], 20[•] among the Borrower, [FFF], [Name of the Bank], The Export-Import Bank of Korea, the [Name of the Bank] Co-Financing Lenders and [FFF] Facility Lenders and the Agents, Hedge Banks, Sponsors, Shareholders and other Persons party thereto, which, among other things, establishes certain common terms and conditions for extensions of credit to the Borrower;
WHEREAS, by this Agreement, the Lenders have established an export financing credit (the "Guaranteed Credit") in the amount of U.S.$ [•] (representing a credit of U.S.$ [•] to finance certain items referred to in (A), (B) and (C) below, plus a credit of U.S.$ [•] to finance related Exposure Fee), pursuant to which the Primary Lender may in its discretion, extend financing (or, if the Primary Lender chooses at any time not to extend any such financing, then the Alternate Lender(s) shall extend such financing) to the Borrower (A) for the purchase of Items in [Name of the Country] for export to the Borrower's Country, (B) for the purchase of Local Costs Items in the Borrower's Country, (C) to finance certain IDC Amounts and (D) for the payment to [FFF] of the related Exposure Fee described in Section 6.01(a)(ii), all in order to finance a portion of the costs of the Project;
WHEREAS, the establishment of the Guaranteed Credit will facilitate exports from [Name of the Country] to the Borrower's Country;
WHEREAS, a condition to the Lenders' extension of the Guaranteed Credit under this Agreement is the availability of the [FFF] Guarantee pursuant to the terms and conditions of the Guarantee Agreement dated as of the date hereof among the [FFF] Facility Agent, the Administrative Agent, the Lenders and [FFF] (as amended, modified and supplemented and in effect from time to time, the "Guarantee Agreement");
WHEREAS, the [FFF] Facility Agent will serve as facility agent for the benefit, and on behalf, of [FFF] and each of the Lenders (other than [FFF] should it become or be deemed to be a Lender pursuant to the terms of this Agreement) in connection with the Guaranteed Credit, this Agreement and the other Borrower Documents, and the Administrative Agent will act as an administrative agent for the Primary Lender and the holders of commercial paper issued by the Primary Lender;
WHEREAS, the Guaranteed Credit may be utilized by the Borrower in accordance with the terms and conditions of this Agreement;
WHEREAS, on or after the Completion Date, the Borrower may, in accordance with the terms and conditions of this Agreement, request [FFF] to disburse the [FFF] Credit and use the proceeds thereof to repay in full the principal amount of the Guaranteed Credit; and
WHEREAS, [FFF] is prepared to issue its guarantee subject to the terms and conditions of the Guarantee Agreement and to establish the [FFF] Credit and to make the [FFF] Credit available to the Borrower on or after the Completion Date, subject to the terms and conditions set forth in this Agreement and the Common Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.01 Defined Terms. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in Annex X or, if such capitalized terms are not defined in Annex X, the meanings ascribed to them in the Common Agreement.
1.02 Principles of Construction. For purposes of this Agreement, the principles of construction set forth in Annex X shall govern.
PART I
THE GUARANTEED CREDIT
SECTION 2. THE GUARANTEED CREDIT
2.01 Amount. Subject to the terms and conditions of this Agreement, the Lenders hereby establish the Guaranteed Credit, upon the terms and conditions set forth in Parts I and III of this Agreement, in favor of the Borrower in the amount of U.S.$ [•] to enable the Borrower to finance:
(a) the Financed Portion of the aggregate costs incurred on and after the Initial Eligibility Date by the Borrower for the purchase of Items in [Name of the Country] and exported to the Borrower's Country (provided that Items which are Ancillary Services need not be purchased in [Name of the Country] if the requirements of the proviso to Section 15.04(a) are satisfied);
(b) the Local Cost Financed Portion of the costs incurred on or after the Initial Eligibility Date by the Borrower for the purchase in the Borrower's Country of Local Cost Items;
(c) the IDC Financed Portion; and
(d) unless paid from a source other than a Disbursement in accordance with Section 6.01(a)(ii), the Exposure Fee payable on such Financed Portion, Local Cost Financed Portion and IDC Financed Portion.
For purposes of this Section 2.01, subject to satisfaction of the conditions of Parts I and III and the Utilization Procedures, costs with respect to services shall be deemed to have been incurred on the date the services were performed, as evidenced by the invoice of the provider of such services provided, and costs with respect to goods shall be deemed to have been incurred on the date the goods were shipped, as evidenced by the date of the relevant bill of lading or air waybill.
2.02 Availability. Subject to the terms and conditions provided herein, including, without limitation, the conditions set forth in Section 5, Disbursements under the Guaranteed Credit may be made from time to time on or prior to the Final Disbursement Date.
SECTION 3. DISBURSEMENTS
3.01 Disbursements. (a) Upon satisfaction of the conditions set forth in Section 5, the Guaranteed Credit may be disbursed in the manner described in, and subject to the conditions of, Parts I and III, the Utilization Procedures and the Common Agreement. Disbursements may be made: (x) by advances from the applicable Lender in accordance with the reimbursement procedure set forth in Section III of Annex B-1 or Annex B-2, whichever is appropriate, to the Borrower reimbursing the Borrower for payments to a Supplier and/or [FFF] ("Reimbursements"); and/or (y) through drawings by a Supplier under an [FFF] Disbursement Letter of Credit issued in accordance with the letter of credit procedure set forth in Section IV of Annex B-1 or Annex B-2, whichever is appropriate ("L/C Payments"); and/or (z) by making an IDC Disbursement. Separate Disbursements must be made with respect to any Items and any Local Cost Items. For the avoidance of doubt, as described in Annex B‑1, the term "Disbursements" shall include payments made under the Guaranteed Credit in respect of the Exposure Fee.
(b) The Primary Lender intends but is not obligated to fund Disbursements through the issuance and sale of commercial paper. The Primary Lender may, at its option, elect at any time not to fund any Disbursement, in which case the Alternate Lenders will, subject to the terms and conditions provided herein (including, without limitation, clause (g) below), be obligated to fund such Disbursement; provided that each single Disbursement shall be funded by either the Primary Lender or the Alternate Lenders, as the case may be, but not both.
(c) In connection with all Disbursements, the Borrower, each of the Lenders and the [FFF] Facility Agent shall comply with all procedures, conditions and requirements specified in the Utilization Procedures.
(d) Subject to the provisions of this Agreement, the failure of any Senior Lender (other than any Lender) under any Senior Credit Agreement (other than this Agreement) to make any Disbursement (as defined in the Common Agreement) under its respective Senior Credit Agreement shall not relieve any Lender of its obligation hereunder to make any requested Disbursement, but no Lender shall be responsible for the failure of any such other Senior Lender to make any such other Disbursement (as defined in the Common Agreement) (or any portion thereof).
(e) Reimbursements or L/C Payments with respect to any Disbursement (other than the final Disbursement under the Guaranteed Credit) shall not be for an aggregate amount less than U.S.$ [•].
(f) Upon receipt of notice from any Lender that it will not make available to the [FFF] Facility Agent its pro rata share of any Disbursement or, if applicable, upon any failure of any Lender to fund a Disbursement, the [FFF] Facility Agent shall promptly provide the Borrower and [FFF] with notice thereof.
(g) In the event that in accordance with Section 17.03 more than one Alternate Lender has at any time become party hereto, the rights and obligations of each such Alternate Lender hereunder are several, and the failure of an Alternate Lender to perform its obligations hereunder shall not affect the obligations of the Borrower towards any other party hereto. Neither [FFF] nor any other party hereto shall be liable for the failure of any Alternate Lender to perform its obligations hereunder. Each Alternate Lender shall participate in each Disbursement in the proportion borne by its Lender’s Share to the aggregate of the Lender’s Shares of all of the Alternate Lenders.
3.02 Issuance of [FFF] Disbursement Letters of Credit. (a) On the terms and subject to the conditions of Parts I and III, the Borrower may request the Issuing Bank to open for the account of the Borrower up to [•] (or such greater number as may be agreed upon by the parties hereto and [FFF]) letters of credit, in form and substance satisfactory to the Issuing Bank, the Borrower, the [FFF] Facility Agent and [FFF] (each, an "[FFF] Disbursement Letter of Credit" and, collectively, the "[FFF] Disbursement Letters of Credit"); provided, that, at no time shall the aggregate face amount of all outstanding [FFF] Disbursement Letters of Credit plus the aggregate amount of all Reimbursements and IDC Disbursements previously made exceed the total amount of the Guaranteed Credit established pursuant to Section 2.01. The amount available under each [FFF] Disbursement Letter of Credit shall be reduced by the amount of any drawing thereunder.
(b) A request by the Borrower for the issuance of an [FFF] Disbursement Letter of Credit by the Issuing Bank shall be made by delivering (i) to the [FFF] Facility Agent and the Issuing Bank, at least [•] Lending Business Days prior to the proposed date for the issuance of such [FFF] Disbursement Letter of Credit, the documents required to be delivered in connection therewith pursuant to Annex B‑1 or Annex B‑2, as applicable, (ii) simultaneously, to the [FFF] Facility Agent and [FFF], an L/C Condition Certificate and (iii) simultaneously to the Issuing Bank an application on the Issuing Bank's customary forms for an irrevocable documentary credit together with such other documents relating to the opening of commercial credits as the Issuing Bank may request. An [FFF] Disbursement Letter of Credit shall not be issued unless and until the Issuing Bank shall have received from [FFF] a Certificate Approving Letter of Credit with respect to such [FFF] Disbursement Letter of Credit in the form of Exhibit 5 of either Annex B‑1 or Annex B‑2, as the case may be. The Borrower shall cause the Issuing Bank to review and forward to [FFF] such documents required to be delivered pursuant to Annex B‑1 or Annex B‑2, as applicable.
(c) Each [FFF] Disbursement Letter of Credit issued hereunder shall:
(1) provide for payment of L/C Payments on one or more Requested Drawdown Dates, subject to (x) receipt by the [FFF] Facility Agent of a Disbursement Request at least [•] Lending Business Days prior to the relevant Requested Drawdown Date; (y) the Issuing Bank's satisfaction with the documentation required to be delivered in connection with a L/C Payment under an [FFF] Disbursement Letter of Credit; and (z) receipt by the Issuing Bank on or prior to the relevant Requested Drawdown Date of funds from the Lenders sufficient to finance payment of the L/C Payment by the Issuing Bank in accordance with Section 3.02(f) and Section 3.03;
(2) include all provisions required by Sections 3.02(d) below;
(3) provide that no payment of a L/C Payment thereunder shall occur after the Final Disbursement Date;
(4) include all provisions required in the Request for Letter of Credit Approval applicable to such [FFF] Disbursement Letter of Credit as set forth in Annex B‑1 or Annex B‑2, as applicable, including, as relevant, the provisions set forth therein with respect to payment of Exposure Fee;
(5) provide for amendment, if required, in accordance with the procedures set forth in Annex B‑1 or Annex B‑2, as applicable, including, without limitation, receipt from [FFF] of a Certificate Approving Amendment of Letter of Credit substantially in the form attached as Exhibit 5(a) to Annex B-1 or Exhibit 5 to Annex B-2, as applicable; and
(6) provide that the amount of each L/C Payment thereunder shall be paid or deposited as provided in Section 3.02(h).
(d) Each [FFF] Disbursement Letter of Credit shall be effective on its date of issuance and, unless terminated or expiring earlier in accordance with its terms in effect from time to time, shall expire on the Final Disbursement Date, as the same may be extended, but in no event later than the Guarantee Availability Date. Each [FFF] Disbursement Letter of Credit shall be an irrevocable documentary sight letter of credit in compliance with and subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 (as the same may be amended from time to time) and, to the extent not inconsistent therewith, the law of [Name of the State].
(e) If a Disbursement Request includes a request for an L/C Payment, then such Disbursement Request shall be delivered by the Borrower to the Issuing Bank and the [FFF] Facility Agent and shall indicate the amount of such L/C Payment. Any such Disbursement Request shall include all documentation required to be presented to the Issuing Bank and the [FFF] Facility Agent pursuant to the [FFF] Disbursement Letter of Credit and this Section 3.02.
(f) If the [FFF] Facility Agent receives a notice from the Issuing Bank on or prior to the fifth Lending Business Day prior to a Requested Drawdown Date specified therein (a) notifying the [FFF] Facility Agent that on such Requested Drawdown Date a payment is to be made by the Issuing Bank under an [FFF] Disbursement Letter of Credit and (b) specifying the amount of such payment, then, the [FFF] Facility Agent shall promptly so advise the Lenders within [•] Lending Business Days and the Lenders, in accordance with the terms of Section 3.03, shall on the relevant Disbursement Date, make a loan to the Borrower of an amount equal to the amount of such payment by the Issuing Bank by paying the same (through the [FFF] Facility Agent) to the Issuing Bank, such loan to be used to fund an L/C Payment pursuant to this Agreement. [·]
(g) The [FFF] Facility Agent shall deliver, or shall cause the Issuing Bank to deliver, within [•] Business Days after the date of any such L/C Payment, to [FFF] (A) manually signed original(s) of all Supplier's Certificate(s) related to such L/C Payment and (B) copies of all other documents related to such L/C Payment.
(h) Amounts drawn under any [FFF] Disbursement Letter of Credit shall be made available to the Trustee, for deposit in the [FFF] Facility Senior Loans Subaccount under and in accordance with the Trust Agreement, in immediately available funds to be applied in accordance with the Trust Agreement for payment to the beneficiary of each [FFF] Disbursement Letter of Credit, as appropriate.
3.03 Funding the Issuing Bank. (a) Each Lender hereby irrevocably and unconditionally agrees that if the [FFF] Disbursement Letter of Credit is issued by the Issuing Bank as provided herein, such Lender shall provide funds to the Issuing Bank in the manner and at the times set forth in this Section 3 for such Lender's pro rata share (calculated as the ratio of the Lender's Share of such Lender to the sum of all Lender's Shares) of each payment of L/C Payments made by the Issuing Bank in accordance with the terms of the [FFF] Disbursement Letter of Credit.
(b) The obligation of the Lenders to finance the Issuing Bank pursuant to this Section 3.03 shall be absolute, irrevocable and unconditional and shall not be affected by any circumstance, nor subject to any qualification or exception whatsoever, and shall be honored in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation: (i) any claim, counterclaim, defenses, right of set-off or other right which such Lender may have or assert against any other Lender, the Issuing Bank, the [FFF] Facility Agent, the Borrower or any other Person; (ii) any fact or circumstance relating to the Borrower; (iii) the occurrence and continuance of a Default or Event of Default; (iv) any lack of validity or enforceability of this Agreement or any of the other Financing Documents; (v) any draft, certificate or any other document presented under the [FFF] Disbursement Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or (vi) any use of proceeds of a L/C Payment hereunder by the Borrower for the payment of ineligible goods or services. Without limiting the generality of the foregoing, each Lender agrees that its obligation under this Section 3.03 is not subject at the time it is required to fund the Issuing Bank hereunder to the satisfaction of any of the conditions set forth in Section 5. Each Lender agrees that each payment made by such Lender to the Issuing Bank pursuant to this Section 3.03 shall be made without any offset, abatement, withholding or reduction whatsoever.
(c) If any Lender fails to make its pro rata share of any L/C Payment available to the Issuing Bank at the time and in the manner required pursuant to this Section 3.03 the [FFF] Facility Agent shall promptly notify the Borrower and [FFF].
3.04 IDC Disbursements.
(a) The Borrower may request (by delivery of a duly completed Request for IDC Disbursement to the [FFF] Facility Agent and [FFF] no later than [•] Lending Business Days prior to the relevant Interest Payment Date) an IDC Disbursement on any Interest Payment Date prior to the IDC End Date and (provided that the Amortization Start Date shall not have occurred on any date falling prior to, but not including the IDC End Date) on the IDC End Date, for the payment of the IDC Financed Portion of IDC due and payable on such Interest Payment Date by complying with the procedures, conditions and requirements specified in Annex B‑3.
(b) The [FFF] Facility Agent shall comply with the procedures, conditions and requirements specified in Annex B-3, including (a) delivery to [FFF], at least [•] Business Days prior to the relevant Interest Payment Date, of a Notice of IDC Disbursement, appropriately completed and accompanied by a copy of the statement of the [FFF] Facility Agent setting forth the computation of the IDC Amount for such Interest Payment Date.
(c) The [FFF] Facility Agent shall promptly, but in no event later than [•] Business Days prior to the relevant Interest Payment Date for any IDC Disbursement, subject to the satisfaction of the conditions precedent set forth in Section 5, give each Lender notice of such Lender's pro rata portion of such IDC Disbursement and the Interest Payment Date of such amount. On the relevant Interest Payment Date, each Lender shall apply such Lender's pro rata share of the balance of such IDC Disbursement (after paying any Exposure Fee related to the IDC Financed Portion due and payable to [FFF] on such Interest Payment Date) solely towards IDC Amounts due and payable by the Borrower on such Interest Payment Date, and no actual disbursement thereof shall be made directly to the Borrower.
3.05 Review of Disbursement Documents. In connection with each proposed Disbursement and Utilization under this Agreement, the [FFF] Facility Agent shall:
(i) receive and maintain documents required to be delivered by the Borrower in connection with such Disbursement or Utilization to [FFF], the [FFF] Facility Agent, any Lender or the Issuing Bank (the “Required Documents”) pursuant to the terms of Parts I and III of this Agreement, the Utilization Procedures and pursuant to Sections 2 and 4 of the Common Agreement ("Disbursement Conditions") (each a “Disbursement Agreement” and, collectively, the “Disbursement Agreements”); provided that, with respect to any Utilization or any Disbursement that is an L/C Payment, the [FFF] Facility Agent may cause the Issuing Bank to maintain all such documents delivered to the Issuing Bank;
(ii) determine whether any such Required Document received by the [FFF] Facility Agent complies with the specified requirements of each applicable Disbursement Agreement and (A) in the case of a Utilization, or a Disbursement which is a Reimbursement or an IDC Disbursement, provide to [FFF] (1) no later than [•] Business Days prior to such Disbursement or Utilization a notice (“CRC Review Notice”) substantially in the form of Annex C-1 and (2) (x) no later than nine (9) Business Days prior to such Disbursement or Utilization (in the case of any proposed Disbursement or Utilization following the initial Disbursement hereunder) a notice (“Disbursement Review Notice - Common Agreement Conditions”) substantially in the form of Annex C-2; or (y) in the case of any Utilization, no later than [•] Business Days prior to such Utilization, a notice ("Utilization Conditions Review Notice") substantially in the form of Annex C-3; or (B) in the case of a Disbursement which is an L/C Payment (in the case of any such proposed Disbursement following the initial Disbursement), provide to [FFF] no later than [•] Business Days prior to such Disbursement a Disbursement Review Notice - Common Agreement Conditions; and in the case of each of (A) and (B) above, (1) attaching each such Required Document in the numerical order corresponding to the relevant provision of the Common Agreement and this Agreement, as the case may be; (2) identifying for [FFF]’s review and decision any unresolved omission or deficiency in compliance with any provision of any Required Document; (3) confirming whether any Required Document states that a Default or Event of Default has occurred; and (4) stating whether any employee or officer of the [FFF] Facility Agent responsible for administering this Agreement (a “Responsible Employee”) has obtained actual knowledge that, or received notice that states that, a Default or Event of Default or Material Adverse Effect has occurred;
(iii) promptly, and in any event within two (2) Business Days after a Responsible Employee obtains actual knowledge that, or receives notice that states that, a Default or Event of Default or Material Adverse Effect has occurred or makes a determination thereof in accordance with this Section 3.05, provide written notice to [FFF] thereof;
(iv) implement any requests received from [FFF] relating to the obtaining of additional information with respect to any Required Document or omission or deficiency referred to above; and
(v) promptly provide written notice to [FFF], each other party hereto and the Administrative Agent of (i) any cancellation or suspension of all or any portion of the Guaranteed Credit or (ii) any suspension of any Disbursement or Utilization under Part I of this Agreement.
3.06 No Fiduciary Capacity. The [FFF] Facility Agent shall be acting as [FFF]'s agent but shall not be acting in a fiduciary capacity toward [FFF] in performing any of its duties pursuant to Section 3.05; provided, however, that the foregoing is not intended and shall not exonerate or exempt the [FFF] Facility Agent from any liability to [FFF] as a result of its gross negligence or willful misconduct in connection with taking or omitting to take any action in relation to such duties.
3.07 Basis of Determinations; Indemnification. (a) Any determination required to be made by the [FFF] Facility Agent under Section 3.05 shall be based solely on the [FFF] Facility Agent's review of the Required Documents or the Common Required Documents, as the case may be, the Disbursement Agreements and any other notices received pursuant to the Financing Documents by, or on the actual knowledge of, a Responsible Employee of the [FFF] Facility Agent, and the [FFF] Facility Agent shall have no obligation to independently verify the truth or correctness of any representation, warranty or other statement contained in such documents or agreements.
(b) The Borrower agrees to indemnify the [FFF] Facility Agent from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements awarded against or incurred by the [FFF] Facility Agent arising out of or as a result of the actions contemplated in Section 3.05, excluding, however, any such damages, losses, claims, liabilities and related costs and expenses to the extent resulting from gross negligence or willful misconduct on the part of the [FFF] Facility Agent.
SECTION 4. TERMS OF THE GUARANTEED CREDIT
4.01 Principal Repayment. Subject to Sections 4.04(e) and 8.01(b), the Borrower shall repay all principal amounts disbursed under the Guaranteed Credit in [•] successive equal semi-annual installments on the Payment Dates; provided that, on the Final Maturity Date, the Borrower shall repay in full the principal amount of the Guaranteed Credit then outstanding. If the Guaranteed Credit is not fully disbursed on or prior to the Final Disbursement Date, promptly following the Final Disbursement Date the schedule attached to each Guaranteed Note shall be adjusted and incorporated into a new Guaranteed Note in accordance with Section 4.06(b).
4.02 Interest Payment.
(a) To the Lenders
(i) On each Interest Payment Date, the Borrower shall pay interest on all amounts disbursed and outstanding from time to time under the Guaranteed Credit, calculated at an interest rate per annum equal to the Applicable Interest Rate therefor, as determined for each successive Interest Period. Subject to the terms and conditions of this Agreement, on each Interest Payment Date occurring prior to the IDC End Date, the Lenders shall make IDC Disbursements to the Borrower on the corresponding Interest Payment Date and shall simultaneously (i) apply the IDC Financed Portion funded by each such IDC Disbursement to pay interest accrued during the related Interest Period under the Guaranteed Credit and (ii) pay to [FFF] any applicable related Exposure Fee. Upon the funding of any IDC Disbursement, such amount shall bear interest from such date at the same rate then applicable to all outstanding Disbursements. Interest on the Disbursements shall be paid on each Interest Payment Date and on the date of payment or prepayment of the related Guaranteed Note. With respect to each Interest Period during which interest accrues in favor of the Alternate Lender, not later than [•] Lending Business Days prior to the Interest Payment Date for such Interest Period the [FFF] Facility Agent shall notify the Borrower of the amount of interest due and payable on such Interest Payment Date.
(ii) If all or any part of principal, accrued interest, fees or other amounts owing to the Lenders under Part I or Part III or any Guaranteed Note is not paid in full when due, whether at stated maturity, by acceleration or otherwise, the Borrower shall pay to the [FFF] Facility Agent on behalf of the Lenders on demand interest on the unpaid amount (to the extent permitted by Applicable Law) for the period from the date such unpaid amount was due until such unpaid amount shall have been paid in full at an interest rate per annum equal to [•] percent ([•]%) above the interest rate then applicable under Section 4.02(a)(i) (the "Default Rate").
(b) To [FFF]
(i) Notwithstanding Section 4.02(a)(i), if [FFF] shall have made a claim payment to the [FFF] Facility Agent on behalf of a Lender with respect to any Guaranteed Note pursuant to the terms of Section 4.05 of the [FFF] Guarantee, then, beginning on the date of such claim payment, the Applicable Interest Rate from and including the date of payment of such claim shall, through the remainder of the then-current Interest Period applicable to such Note and for each Interest Period thereafter, be calculated on the basis of Special LIBOR, rather than the definition of LIBOR contained in such Note, for all purposes, including, without limitation, Section 4.02(b)(ii).
(ii) With respect to amounts of principal and accrued interest for Disbursements under the Guaranteed Credit, if at any time any amount owing to [FFF] under Part I or III or any Guaranteed Note is not paid in full when due, the Borrower shall pay to [FFF] on demand interest on such unpaid amount for the period from the date such amount was due ("Payment Default Date") until such amount shall have been paid in full at an interest rate per annum equal to [•] ([•]%) per annum above the U.S. Treasury Rate. The "U.S. Treasury Rate" shall mean the interest rate specified in the Federal Reserve Statistical Release H.15 (519) Selected Interest Rates for six-month (180 days) Treasury Bills under the category entitled "Treasury Bills, Auction Average (Investment)" (or, if not included under such category, the category entitled "Treasury Constant Maturities"), which is in effect on the Payment Default Date.
4.03 Alternative Interest Rate.
(a) If (i) pursuant to Section 3.01(b) the Primary Lender elects not to fund a Disbursement through the issuance and sale of commercial paper and (ii) the Alternate Lender shall have determined (which determination shall be conclusive and binding for all purposes, absent manifest error), prior to the commencement of any Interest Period that: (A) Dollar deposits of sufficient amount and maturity for funding a Disbursement are not available to the Alternate Lender in the London interbank market in the ordinary course of business; or (B) by reason of circumstances affecting the London interbank market as a whole, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to a Disbursement; or (C) the relevant rate of interest referred to in the definition of LIBOR which is to be used to determine the rate of interest for a Disbursement does not cover the funding cost to the Alternate Lender of making or maintaining the Disbursement, then the Alternate Lender shall give notice to the Borrower of such condition and, commencing on the date such notice is given, consult generally with the Borrower with regard to the circumstances giving rise to such condition during a period of [•] Business Days from the date of such notice. Immediately following such [•] Business Day period and continuing so long as such condition shall exist, interest shall accrue during each applicable Interest Period at the “Base Rate” (as defined herein below). Where the Base Rate applies during an Interest Period pursuant to the terms hereof, the Alternate Lender shall notify the [FFF] Facility Agent and the Borrower of its computation of such Base Rate for such Interest Period (a) by no later than [•] Business Days prior to the Interest Payment Date occurring at the end of such Interest Period or (b) in the case where such Base Rate first applies on and after a date occurring later than [•] Business Days prior to such Interest Payment Date, by no later than three [•] Business Days after the date of such first application. For purposes of this Section 4.03, “Base Rate” means, for any day, a rate per annum equal to the greater of (x) the rate of interest publicly announced from time to time by the Alternate Lender in [Name of the City], [Name of the City], as its base rate and (y) the sum of (1) a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding [Name of the City] business day by the Federal Reserve Bank of [Name of the City], plus [•] percent ([•]%).
(b) If, in the Alternate Lender's reasonable judgment, it becomes unlawful at any time for the Alternate Lender to make or maintain Disbursements based upon LIBOR, the Alternate Lender shall give notice to the Borrower of such condition and, commencing on the date such notice is given and continuing so long as such condition shall exist, interest shall accrue on all Disbursements during each applicable Interest Period at the Base Rate (as defined above).
4.04 Prepayment. (a) Subject to the terms of Sections 4.04(c) and (d) below, the Borrower may from time to time voluntarily prepay, without premium or penalty, on any Interest Payment Date all or part of the principal amount of the Guaranteed Credit, provided that: (i) any partial prepayment shall be in a minimum principal amount of U.S.$ [•]; (ii) the Borrower shall have given the [FFF] Facility Agent and [FFF] at least [•] days' prior written notice of the prepayment (which notice shall be irrevocable); (iii) the Borrower shall have paid in full all amounts due under the Guaranteed Credit as of the date of such prepayment, including unpaid interest which has accrued to the date of prepayment on the amount prepaid; and (iv) the Borrower complies with and makes such prepayment only if permitted by the terms of Section 3.2.1, 3.2.2, 3.2.4, 3.11 or 5.13 of the Common Agreement.
(b) Subject to the terms of Sections 4.04(c) and (d) below, the Borrower shall prepay the Guaranteed Credit at the times and subject to the terms provided in Sections 3.2.3 and 3.2.4 of the Common Agreement.
(c) In connection with all prepayments under this Section 4.04 other than with respect to the application of the proceeds of the [FFF] Disbursement in connection with Post-Completion Funding Option 2, if the Primary Lender is the Lender, the Borrower shall pay to such Lender (A) if the Switch Option has not been exercised, an amount equal to (x) the amount of yield that the Primary Lender is required to pay to holders of its commercial paper during the "Liquidation Period" (as defined below) on an amount of commercial paper having an aggregate issue price equal to the amount of the Borrower's prepayment less (y) the amount of the estimated investment earnings, as reasonably determined by the Administrative Agent, on the prepayment amount during the Liquidation Period and (B) if the Switch Option has been exercised, such amounts as shall be sufficient (in the reasonable judgment of the Lender) to compensate the Primary Lender for any loss, expense or liability (including, without limitation, any swap breakage costs (including, without limitation, breakage costs with respect to swaps arranged by a Lender or any Affiliate of a Lender) or any other loss, expense or liability incurred by reason of the liquidation or redeployment of deposits from third parties or in connection with obtaining funds to make or maintain any Disbursement) which such Lender reasonably determines is attributable to such prepayment; and if the Lender is the Alternate Lender, such amounts as shall be sufficient (in the reasonable judgment of the Lender) to compensate the Alternate Lender for any loss, expense or liability (including, without limitation, any swap breakage costs (including, without limitation, breakage costs with respect to swaps arranged by a Lender or any Affiliate of a Lender) or any other loss, expense or liability incurred by reason of the liquidation or redeployment of deposits from third parties or in connection with obtaining funds to make or maintain any Disbursement) which such Lender reasonably determines is attributable to such prepayment. The "Liquidation Period" means the period from the date on which a prepayment is made to the earliest date on which the Primary Lender's total amount of commercial paper related to the funding of the Guaranteed Credit can be reduced (without prepayment thereof) by an amount equal to the amount of the Borrower's prepayment. Any Lender demanding compensation under this Section 4.04(c) shall deliver to the Borrower a certificate setting forth in reasonable detail the basis for demanding and amount of such compensation which shall in no event contain any disclosure of any matters deemed by such Lender in good faith to be confidential or proprietary.
(d) Prepayments shall be applied to the installments of principal of the Guaranteed Credit in the inverse order of their maturity, and, in cases where more than one Guaranteed Note is outstanding, pro rata to each Guaranteed Note.
(e) If the Borrower selects Post-Completion Funding Option 2 in accordance with Section 8, the Borrower shall apply the proceeds of the [FFF] Disbursement to the repayment of the Guaranteed Credit outstanding on the [FFF] Disbursement Date in full on the [FFF] Disbursement Date and, solely for such purpose and with respect to the disbursement and application of the [FFF] Credit, the Borrower shall be deemed to have complied with the terms of Sections 4.04(a) and 4.04(c).
(f) Any prepayment by the Borrower of any of the principal amount of the Guaranteed Credit in accordance with this Section 4.04 shall be irrevocable and final when paid, and the Borrower shall not be entitled to subsequently borrow or redraw any part of such prepaid principal amount.
4.05 Recapture. The Borrower shall pay to the applicable Lender, upon the written request of such Lender, such amounts as shall be sufficient (in the reasonable judgment of the Lender) to compensate such Lender for any loss, expense or liability (including, without limitation, any swap breakage costs (including, without limitation, breakage costs with respect to swaps arranged by a Lender or any Affiliate of a Lender) or any other loss, expense or liability incurred by reason of the liquidation or redeployment of deposits from third parties or in connection with obtaining funds to make or maintain any Disbursement) which such Lender reasonably determines is attributable to:
(a) any payment or prepayment of the Guaranteed Credit other than in accordance with Section 4.01 or 4.04 (including, without limitation, by reason of acceleration);
(b) any failure by the Borrower to borrow any advance that has been requested in a Disbursement Request (as provided in Annex B-1 or B-2, as the case may be) other than any such failure that is due solely to the failure of any Lender to fund such advance;
(c) an Interest Period ending on the IDC End Date in circumstances where such IDC End Date was not determined and notified to the Lenders 15 Business Days prior to the first day of such Interest Period; or
(d) Reset LIBOR applying during an Interest Period.
The applicable Lender or the [FFF] Facility Agent on its behalf shall deliver to the Borrower a written statement specifying the amount of any claim pursuant to this Section 4.05 and the method of calculation thereof.
4.06 Evidence of Debt.
(a) The Borrower agrees that to evidence further its obligation to repay all amounts disbursed and to be disbursed under the Guaranteed Credit, with interest accrued thereon, it shall not later than the date of the initial Disbursement or the initial Utilization under the Guaranteed Credit issue and deliver to the [FFF] Facility Agent on behalf of the Lenders, in accordance with the written instructions of the [FFF] Facility Agent, a duly completed promissory note (such promissory note, or any replacement promissory note issued pursuant to Section 4.06(b), Section 4.06(c) , Section 4.06(d) or Section 4.07, a "Guaranteed Note") payable to the order of the [FFF] Facility Agent for benefit of the Lenders. Such Guaranteed Note shall be in the form of Annex A-1 or, if issued and delivered pursuant to Section 4.07 or in substitution of any Guaranteed Note previously issued thereunder, Annex A-2, or as otherwise agreed upon by the parties hereto, and shall be valid and enforceable as to its principal amount at any time only to the extent of the aggregate amount of the outstanding Disbursements thereunder and, as to interest, only to the extent of the interest accrued thereon at the relevant Applicable Interest Rate. The Borrower authorizes and instructs the [FFF] Facility Agent to record on the schedule annexed to such Guaranteed Note the date and amount of each funding of Disbursements, the name of each Lender so funding each such Disbursement and such Lender's amount of such funding, and each payment or prepayment of principal thereunder. The Borrower agrees that all such notations by the [FFF] Facility Agent shall be conclusive in the absence of manifest error, provided that neither the failure to make any such notations, nor any errors in making any such notations, shall affect the validity of the Borrower's obligations to repay in full the unpaid principal amount of the Guaranteed Credit in accordance with the terms of this Agreement or the duties of the Borrower hereunder or thereunder.
(b) If requested by the [FFF] Facility Agent, within [•] days after the Final Disbursement Date, the Borrower shall issue and deliver to the [FFF] Facility Agent a new duly completed Guaranteed Note in exchange for any Guaranteed Note previously issued and delivered in accordance with Section 4.06(a), whereupon the [FFF] Facility Agent shall surrender such previously issued Guaranteed Note for cancellation to the Borrower through [FFF]. The aggregate principal amount of such new Note shall equal the aggregate principal amount of the previously issued Guaranteed Note provided in exchange.
(c) If [FFF] shall have made a claim payment to a Lender with respect to any Guaranteed Note pursuant to the terms of the [FFF] Guarantee, then, not later than the date of such claim payment, the Borrower shall issue and deliver to the [FFF] Facility Agent a new duly completed Guaranteed Note in exchange for any Guaranteed Note previously issued and delivered in accordance with Section 4.06(a), whereupon the [FFF] Facility Agent shall surrender such previously issued Guaranteed Note for cancellation to the Borrower through [FFF]. The interest rate of such new Note shall be determined in accordance with Section 4.02(b), and the aggregate principal amount of such Note shall equal the aggregate principal amount of the previously issued Guaranteed Note provided in exchange.
(d) If requested by the [FFF] Facility Agent or [FFF] pursuant to Section 14.03(b)(ii), the Borrower shall issue and deliver to the [FFF] Facility Agent a new duly completed Guaranteed Note in exchange for any Guaranteed Note previously issued and delivered in accordance with Part I, whereupon the [FFF] Facility Agent shall surrender such previously issued Guaranteed Note for cancellation to the Borrower through [FFF].
(e) If any Guaranteed Note is mutilated, lost, stolen or destroyed, the Borrower shall issue and deliver a new duly completed Guaranteed Note of the same date, maturity and denomination as the Guaranteed Note so mutilated, lost, stolen or destroyed; provided that, in the case of any mutilated Guaranteed Note, such mutilated Guaranteed Note shall be returned to the Borrower for its cancellation after examination by [FFF] and cancellation of the [FFF] Guarantee issued solely with respect to such mutilated Guaranteed Note, and, in the case of any lost, stolen or destroyed Guaranteed Note, the Borrower and [FFF] shall have first received evidence of such loss, theft or destruction as shall reasonably be considered satisfactory to each of them, together with an indemnity agreement reasonably satisfactory to each of them.
4.07 Interest Rate Switch Option. (a) The Borrower shall have the option (the "Switch Option") at any time after the Final Disbursement Date on only one occasion to require the Lenders and [FFF] to accept a Fixed Rate Note in substantially the form of Annex A-2 in substitution for the existing Floating Rate Note with respect to all of the Guaranteed Credit; provided that (i) no Default or Event of Default shall have occurred and be continuing on the Switch Date (as defined herein) and (ii) on or before the Switch Date, the Lenders and [FFF] shall have received a legal opinion from [Name of the Country] counsel satisfactory to [FFF] and the Lenders relating to the enforceability of the proposed Fixed Rate Note in form and substance satisfactory to [FFF] and the Lenders. Subject to satisfaction of the provisos and conditions set out in this Section 4.07, to exercise the Switch Option, the Borrower shall give the [FFF] Facility Agent and [FFF] no less than [•] [Name of the City]/[Name of the City] Business Days' prior written notice setting forth the date of the proposed interest rate switch (the "Switch Date") and the amount of the Guaranteed Credit subject to the Switch Option. The Borrower shall, at least [•] [Name of the City]/[Name of the City] Business Days prior to the Switch Date, issue and deliver to the [FFF] Facility Agent and [FFF] a new Guaranteed Note in exchange for the Guaranteed Note previously issued and delivered in accordance with Section 5.01(f), whereupon the [FFF] Facility Agent shall surrender such previously issued Guaranteed Note for cancellation to the Borrower through [FFF].
(b) The interest rate for the Fixed Rate Note shall be the rate determined by the [FFF] Facility Agent and agreed upon by the Borrower to be the rate quoted by [DDD] at or about [Time] ([Name of the City] time) [•] Business Days prior to the Switch Date as its offered fixed rate for a Dollar interest exchange agreement where [DDD] is the floating rate payer and the Primary Lender or the Alternate Lender, as the case may be, is the fixed rate payer paying on the same basis of accrual and calculation as interest accrues and is calculated on the Guaranteed Credit at the Applicable Interest Rate, on a fixed for [•]-month LIBOR floating payment basis, the first payment to be made on the first Payment Date for the Guaranteed Credit after the Switch Date and in respect of a notional principal amount equal to (and amortizing on a basis and in amounts comparable to) the Guaranteed Credit and with a remaining tenor comparable to the tenor of the Guaranteed Credit.
(c) The Borrower agrees to indemnify the Primary Lender, the Alternate Lender, the [FFF] Facility Agent and [FFF] from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all the foregoing being collectively referred to as "Switch Indemnified Amounts") awarded against or incurred by any of them arising out of or as a result of a failure of the interest rate conversion referred to herein to occur on the scheduled Switch Date, excluding, however, Switch Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Primary Lender, the Alternate Lender, the [FFF] Facility Agent or [FFF], as the case may be.
(d) Where the Borrower exercises the Switch Option with respect to principal amounts outstanding under a Guaranteed Note that is held for benefit of the Primary Lender and the proposed interest rate conversion occurs, the Borrower agrees to pay to the Primary Lender on the Switch Date the amounts that would be payable under Section 4.04(c)(A) as if such conversion were a prepayment on such date.
4.08 Use of Proceeds. The proceeds of the Disbursements shall be available (and the Borrower agrees that it shall use such proceeds) solely to pay for (i) the purchase of the Items in [Name of the Country] for export to the Borrower's Country, (ii) the Local Cost Financed Portion of costs incurred on or after the Initial Eligibility Date for the purchase in the Borrower's Country of Local Cost Items, (iii) the IDC Financed Portion, and (iv) the Exposure Fee related to each such Financed Portion, Local Cost Financed Portion and IDC Financed Portion.
4.09 Non-Receipt of Funds by the [FFF] Facility Agent. (a) Unless the [FFF] Facility Agent shall have been notified in writing by any Lender or the Borrower (the “Payor”) prior to the date on which the Payor is to make payment to the [FFF] Facility Agent (in the case of a Lender) of the proceeds of the Loan to be made by such Lender hereunder or (in the case of the Borrower) of a payment to the [FFF] Facility Agent for account of one or more of the Lenders hereunder (any such payment being herein called a “Required Payment”) that such Lender or the Borrower, as the case may be, will not make the Required Payment, the [FFF] Facility Agent may assume that the Payor is making the Required Payment available to the [FFF] Facility Agent and, in reliance upon such assumption, make available to the Lenders or the Borrower, as the case may be, a corresponding amount.
(b) If such amount is not made available to the [FFF] Facility Agent by the required time on such date (the “Advance Date”), the Payor shall pay to the [FFF] Facility Agent, on demand, such amount with interest thereon at a rate equal to the rate specified by the [FFF] Facility Agent as its cost of funding such amount for the period until such Payor makes such amount available to the [FFF] Facility Agent. A certificate of the [FFF] Facility Agent submitted to any Payor with respect to any amounts owing under this Section shall be conclusive and binding on the Payor in the absence of manifest error.
(c) If a Required Payment is not made available to the [FFF] Facility Agent by such Payor within three Business Days of the Advance Date, the [FFF] Facility Agent shall also be entitled to recover such amount on demand from the recipient(s) thereof, together with interest thereon retroactively to the Advance Date at: (i) the rate specified by the [FFF] Facility Agent as its cost of funding such amount for such period of three Business Days, and thereafter at the Default Rate if the Required Payment represents a payment to be made by the Borrower to the Lenders (without duplication of the obligation of the Borrower under Section 4.02); and (ii) the Federal Funds Rate if the Required Payment represents proceeds of a Loan to be made by the Payor to the Borrower. Nothing in this Section 4.09 shall be deemed to be a waiver of any claim the Borrower may have against any Lender by reason of the failure of such Lender to perform its obligations hereunder.
SECTION 5. CONDITIONS PRECEDENT
5.01 Conditions Precedent to First Disbursement. The obligation of the Lenders to permit the initial Disbursement of the Guaranteed Credit shall be subject to the delivery to the [FFF] Facility Agent and [FFF] of the documents indicated below (each in form and substance satisfactory to the [FFF] Facility Agent and [FFF]) and to the fulfillment (in a manner satisfactory to the [FFF] Facility Agent and [FFF], or waiver by [FFF] and, in the case solely of items (h) and (j)(1) below, the [FFF] Facility Agent (following consultation with [FFF])) of the conditions set forth below:
(a) This Agreement. This Agreement, duly executed by each party hereto, which shall be in full force and effect (with, if applicable, evidence that this Agreement has been registered with the appropriate authorities in the Borrower's Country).
(b) Common Agreement. (i) The conditions precedent set forth in Sections 4.1 and 4.2 of the Common Agreement (other than any such condition relating to the execution, delivery or effectiveness of this Agreement) shall have been (A) satisfied or (B) waived by [FFF]; (ii) neither [FFF] nor the [FFF] Facility Agent shall have received an AA Unsatisfied CP Notice, an Unsatisfied CP Notice or a Drawstop Notice under Section 2.6 of the Common Agreement, any of which remains effective (except in the case of an Unsatisfied CP Notice that remains effective, if the obligations of the Lenders (and, in the case of an L/C Payment, the Issuing Bank) to make such requested Disbursement are reinstated pursuant to clause 1 of the proviso to Section 2.6.1(d)(iii) of the Common Agreement); and (iii) the [FFF] Facility Agent shall have received a Lending Confirmation Notice relating to such Disbursement and [FFF] shall have provided to the Administrative Agent under and as defined in the Common Agreement the written confirmation of satisfaction of conditions precedent referred to in Section 4.1.2(b)(i) of the Common Agreement.
(c) Acquisition List. A list of the Items, containing with respect to each Item: a brief description, the quantity, estimated invoice cost, estimated date of shipment, Supplier's DUNS Numbers (if available) and product SIC Codes.
(d) Purchase Contract(s). A copy of the Purchase Contract(s) to be financed by the Guaranteed Credit.
(e) Guarantee Agreement. The Guarantee Agreement, duly executed by each party thereto, which shall be in full force and effect.
(f) Guaranteed Note. If the initial Disbursement occurs prior to the initial Utilization hereunder, a Guaranteed Note in not less than the aggregate principal amount of the Guaranteed Credit shall have been duly executed by the Borrower and delivered to the [FFF] Facility Agent, with a copy to [FFF].
(g) Outside Counsel. Evidence that the reasonable and documented fees and out-of-pocket expenses due and payable to all counsel to [FFF] and counsel to the [FFF] Facility Agent and the Lenders have been fully paid or will be paid out of the proceeds of the Initial Disbursement.
(h) Fee Letter. The fee letter referred to in Section 6.01(b), duly executed and in form and substance satisfactory to the Lenders.
(i) Letter Agreement. The letter agreement in respect of certain matters between the Administrative Agent and [FFF], duly executed in form and substance satisfactory to [FFF].
(j) Legal Opinions. The legal opinion of (1) [Name of the Law Firm], special [Name of the City] counsel to the [FFF] Facility Agent, the Lenders and the Administrative Agent, in form and substance satisfactory to the [FFF] Facility Agent, the Lenders and the Administrative Agent, and (2) in-house counsel of [FFF], addressed to the Rating Agencies, the Lenders, the [FFF] Facility Agent and the Administrative Agent.
5.02 Conditions Precedent to Each Disbursement. The obligation of the Lenders to permit any Disbursement, including the initial Disbursement, shall be subject to the delivery to the [FFF] Facility Agent and [FFF] of the documents indicated below (each in form and substance satisfactory to the [FFF] Facility Agent and [FFF], or waiver by [FFF]) and to the fulfillment, as of the date of such Disbursement (in a manner satisfactory to the [FFF] Facility Agent and [FFF], or waiver by [FFF]) of the conditions set forth below:
(a) Utilization Procedures. In the case of a Reimbursement, an L/C Payment or an IDC Disbursement, the [FFF] Facility Agent and [FFF] shall have received the documents required under Annex B-1, B-2 or B-3, as the case may be, with respect to the requested Disbursement including, without limitation, invoices, Suppliers' Certificates and bills of lading, if applicable.
(b) Common Agreement. Each condition precedent set forth in Section 4.2 of the Common Agreement (other than any such condition relating to the execution, delivery or effectiveness of this Agreement) shall have been (i) satisfied or (ii) waived in accordance with the terms and conditions of the Common Agreement.
(c) [FFF] and Common Agreement Approvals. (i) Neither [FFF] nor the [FFF] Facility Agent shall have issued or received an AA Unsatisfied CP Notice, an Unsatisfied CP Notice or a Drawstop Notice under Section 2.6 of the Common Agreement relating to such Disbursement, unless any such notice has been terminated, rescinded or superseded and is no longer effective (except in the case of an Unsatisfied CP Notice that remains effective, if the obligations of the Lenders (and, in the case of an L/C Payment, the Issuing Bank) to make such requested Disbursement are reinstated pursuant to clause 1 of the proviso to Section 2.6.1(d)(iii) of the Common Agreement), and the [FFF] Facility Agent shall have received a Lending Confirmation Notice; and (ii) in the case of a Reimbursement or Utilization, [FFF] shall have issued an [FFF] Certificate with respect to the requested Disbursement or Utilization.
(d) Other Documents. Such other documents, certificates, instruments or information relating to this Agreement or any Guaranteed Note or the transactions contemplated hereby as either the [FFF] Facility Agent or [FFF] may have reasonably requested shall have been delivered in form and substance satisfactory to [FFF] and the [FFF] Facility Agent.
5.03 Conditions Precedent to Each Utilization. The obligation of the Lenders to permit any Utilization, including the initial Utilization, shall be subject to the delivery to the [FFF] Facility Agent and [FFF] of the documents indicated below (each in form and substance satisfactory to the [FFF] Facility Agent and [FFF]) and to the fulfillment (in a manner satisfactory to the [FFF] Facility Agent and [FFF], or waiver by [FFF] and, in the case solely of items (g) and (i)(1) below, the [FFF] Facility Agent (following consultation with [FFF])) of the conditions set forth below:
(a) This Agreement. This Agreement, duly executed by each party hereto, shall be in full force and effect.
(b) Acquisition List. If the initial Utilization occurs before the initial Disbursement, a list of the Items, containing with respect to each Item: a brief description, the quantity, estimated invoice cost, estimated date of shipment, Supplier's DUNS Numbers (if available) and product SIC Codes.
(c) Purchase Contract(s). If the initial Utilization occurs before the initial Disbursement, a copy of the Purchase Contract(s) to be financed by the Guaranteed Credit.
(d) Guarantee Agreement. The Guarantee Agreement, duly executed by each party thereto, shall be in full force and effect.
(e) Guaranteed Note. If the initial Utilization occurs before the Initial Disbursement, a Guaranteed Note in not less than the aggregate principal amount of the Guaranteed Credit shall have been fully executed by the Borrower and delivered to the [FFF] Facility Agent, with a copy to [FFF].
(f) Outside Counsel and Fees. If the initial Utilization occurs before the initial Disbursement, evidence that the reasonable and documented fees and out-of-pocket expenses due and payable to all counsel to [FFF] and counsel to the [FFF] Facility Agent and the Lenders shall have been fully paid.
(g) Fee Letter. In the case of the initial Utilization, the fee letter referred to in Section 6.01(b), duly executed and in form and substance satisfactory to the Lenders.
(h) Letter Agreement. In the case of the initial Utilization, the letter agreement in respect of certain matters between the Administrative Agent and [FFF], in form and substance satisfactory to [FFF].
(i) Legal Opinions. If the initial Utilization occurs before the initial Disbursement, the legal opinion of (1) [Name of the Law Firm], special [Name of the City] counsel to the [FFF] Facility Agent, the Lenders and the Administrative Agent, and (2) in-house counsel of [FFF], addressed to the Rating Agencies, the Lenders, the [FFF] Facility Agent and the Administrative Agent.
(j) Utilization Procedures. The [FFF] Facility Agent and [FFF] shall have received the documents required under Annex B-1, B-2 or B-3, as the case may be, with respect to the requested Utilization including, without limitation, invoices, Suppliers' Certificates and bills of lading, if applicable.
(k) [FFF] Approvals. [FFF] shall have issued an [FFF] Certificate with respect to the requested Utilization.
(l) Other Documents. Such other documents, certificates, instruments or information relating to this Agreement or any Guaranteed Note or the transactions contemplated hereby as either the [FFF] Facility Agent or [FFF] may have reasonably requested shall have been delivered in form and substance satisfactory to [FFF] and the [FFF] Facility Agent.
SECTION 6. FEES AND EXPENSES
6.01 Fees.
(a) The Borrower shall pay or cause to be paid to [FFF] the following fees:
(i) a guarantee commitment fee ("Guarantee Commitment Fee") on the uncanceled and undisbursed balance from time to time of the Guaranteed Credit for the period from and including [•], 20[•] to but not including the Final Disbursement Date, at a rate per annum of [•] percent ([•]%), calculated on the basis of the actual number of days elapsed (including the first day but excluding the last), using a 360-day year; and
(ii) an exposure fee ("Exposure Fee") on the Guaranteed Credit in an amount equal to [•] percent ([•]%) of the Guaranteed Credit (net of Exposure Fee payable therefrom), payable to [FFF] in one lump sum (U.S.$ [•]) on the first Disbursement Date under this Agreement, from the proceeds of the first Disbursement or, at the Borrower's option, from another source, in either case in accordance with the payment instructions in Section 14.01(a)(ii) or, at the Borrower's option, from the proceeds of each Disbursement pursuant to Section 2.01(d) and Section 3.01.
Accrued Guarantee Commitment Fee shall be payable on each Interest Payment Date prior to the Final Disbursement Date and with respect to the period from the Interest Payment Date immediately preceding the Final Disbursement Date to but not including the Final Disbursement Date, on the earlier of (i) the first Interest Payment Date after the Final Disbursement Date and (ii) the [FFF] Disbursement Date. For the avoidance of doubt, the parties hereto acknowledge and agree that the Guarantee Commitment Fee shall continue to accrue and become due and payable as described above during any period in which Disbursements are suspended as described in Section 12.02(a). Not later than [•] Business Days prior to each Interest Payment Date, [FFF] shall notify the Borrower of the amount of the Guarantee Commitment Fee due and payable on such Interest Payment Date.
(b) The Borrower shall pay or cause to be paid to the [FFF] Facility Agent for its own account and for the account of the Administrative Agent such fees as are set forth in the Fee Letter.
6.02 Additional or Increased Costs. Sections 3.7 and 3.8 of the Common Agreement are hereby incorporated by reference herein as if fully set forth herein.
SECTION 7. THE [FFF] FACILITY AGENT AND THE LENDERS
7.01 Appointment, Powers and Immunities. Each Lender (other than [FFF] should it become or be deemed to be a Lender pursuant to the terms of this Agreement) hereby appoints the [FFF] Facility Agent to act as its agent in connection herewith and with the other Transaction Documents, with each Guaranteed Note issued and delivered to the [FFF] Facility Agent pursuant hereto and with any other documents delivered to the [FFF] Facility Agent under Section 5, and authorizes the [FFF] Facility Agent to exercise such rights, powers and discretions as are specifically delegated to the [FFF] Facility Agent by the terms hereof together with all such rights, powers and discretions as are reasonably incidental thereto. Except with respect to its duties under Section 3.05 and Section 7.03, the [FFF] Facility Agent is not authorized to, nor shall it act as, the facility agent for [FFF] or any of its successors or assigns in any of the capacities provided for herein. Without limiting the foregoing, all notices to be delivered to, and approvals to be given by, a Lender under the Utilization Procedures described in Annexes B-1, B-2 and B-3 shall be delivered to and given by the [FFF] Facility Agent on behalf of such Lender.
7.02 Reliance by [FFF] Facility Agent. The [FFF] Facility Agent may:
(a) assume that:
(1) any representation made by the Borrower in connection herewith is true;
(2) no event which is or may become an Event of Default has occurred;
(3) the Borrower is not in breach of or default under its obligations under any Transaction Document to which it is party; and
(4) any right, power, authority or discretion vested herein upon the Majority [FFF] Lenders, the Lenders or any other person or group of persons has not been exercised, unless it has, in its capacity as [FFF] Facility Agent for the Lenders, received notice to the contrary;
(b) assume that the Facility Office of any Lender is such office identified with its signature below until it has received from such Lender a notice designating some other office of such Lender to replace its Facility Office and act upon any such notice until the same is superseded by a further such notice;
(c) engage and upon request pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem reasonably necessary, expedient or desirable and rely upon any advice so obtained, provided, that the [FFF] Facility Agent shall provide reasonable notice of the amount of any fees payable for the advice or services of any such lawyers, accountants, surveyors or other experts;
(d) rely as to any matters of fact which might reasonably be expected to be within the knowledge of the Borrower upon a certificate signed by or on behalf of the Borrower;
(e) rely upon any communication or document believed by it to be genuine;
(f) subject to the terms of the [FFF] Guarantee and the Intercreditor Agreement, refrain from exercising any right, power or discretion vested in it as [FFF] Facility Agent hereunder unless and until instructed by the Majority [FFF] Lenders as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised; and
(g) refrain from acting in accordance with any instructions of the Majority [FFF] Lenders to begin any legal action or proceeding arising out of or in connection with this Agreement until it shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, expenses (including legal fees) and liabilities which it will or may expend or incur in complying with such instructions; provided that, notwithstanding the foregoing, neither the [FFF] Facility Agent nor any Lender nor the Majority [FFF] Lenders shall begin any action under this clause (g) without the express prior written consent of [FFF] or if prohibited by the Intercreditor Agreement.
7.03 Duties of [FFF] Facility Agent. The [FFF] Facility Agent shall:
(a) promptly inform each Lender and [FFF] of the contents of any notice or document received by it from the Borrower under Part I;
(b) promptly provide each notice required by Sections 3.05 and otherwise as may be required of it pursuant to the Common Agreement or the Trust Agreement;
(c) promptly and in any event within [•] days of actual notice thereof in its capacity as [FFF] Facility Agent, notify each Lender and [FFF] of the occurrence of any Event of Default or any default by the Borrower in the due performance of or compliance with its obligations under this Agreement of which the [FFF] Facility Agent has actual knowledge or actual notice;
(d) save as otherwise provided herein, act as facility agent hereunder in accordance with any instructions given to it by the Majority [FFF] Lenders, which instructions shall be binding on all of the Lenders; provided, that, notwithstanding the foregoing, neither the [FFF] Facility Agent nor any Lender nor the Majority [FFF] Lenders shall begin any action under this clause (d) without the express prior written consent of [FFF] (other than making a demand for payment under the Guarantee Agreement) or if prohibited by the Intercreditor Agreement; and
(e) if so instructed by the Majority [FFF] Lenders, refrain from exercising any right, power or discretion vested in it as [FFF] Facility Agent hereunder (other than the right to make a demand under the [FFF] Guarantee in accordance with the instructions of any Lender); provided, that, notwithstanding the foregoing, neither the [FFF] Facility Agent nor any Lender nor the Majority [FFF] Lenders shall begin any action under this clause (e) without the express prior written consent of [FFF] (other than making a demand for payment under the Guarantee Agreement) or if prohibited by the Intercreditor Agreement.
7.04 No Obligation to Make Inquiries, Etc. Notwithstanding anything to the contrary expressed or implied herein, the [FFF] Facility Agent shall not:
(a) be bound to inquire as to:
(1) whether or not any representation made by the Borrower in connection herewith or in any other Transaction Document to which the Borrower is party is true;
(2) the occurrence or otherwise of any event which is or may become an Event of Default or has had or may have a Material Adverse Effect;
(3) the performance by the Borrower of its obligations hereunder or in any other Transaction Document to which the Borrower is party; or
(4) any breach of or default by the Borrower of or under its obligations hereunder or in any other Transaction Document to which the Borrower is party;
(b) be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account;
(c) be bound to disclose to any other person any information relating to the Borrower or any of its agencies if such disclosure would or might in its reasonable opinion constitute a breach of any law or regulation or be otherwise actionable at the suit of any person; or
(d) be under any obligations other than those for which express provision is made herein.
7.05 Indemnification. Each Alternate Lender shall, from time to time on demand by the [FFF] Facility Agent, indemnify the [FFF] Facility Agent, in the proportion its share of the aggregate Disbursements (or, if no Disbursement has been made, its portion of the Guaranteed Credit) bears to the aggregate amount of all the Disbursements (or, if no Disbursement has been made, the amount of the Guaranteed Credit) at the time of such demand (or, if all the Disbursements have then been repaid in full, immediately prior to the final repayment thereof), against any and all costs, claims, expenses (including legal fees) and liabilities (collectively, "Liabilities") together with any tax thereon which the [FFF] Facility Agent may incur, otherwise than by reason of its own gross negligence or willful misconduct, in acting in its capacity as facility agent hereunder (including, without limitation, any Liabilities in anyway relating to or arising out of certifications made with respect to either (a) the due authorization, execution or delivery of a Guaranteed Note, or (b) laws and/or regulation of any Governmental Authority, in each case in connection with any request by the [FFF] Facility Agent to [FFF] for [FFF] to issue a Guaranteed Note Certificate with respect to a Guaranteed Note).
7.06 Extent of Responsibility. The [FFF] Facility Agent accepts no responsibility for the accuracy and/or completeness of any information supplied by the Borrower in connection herewith or for the legality, validity, effectiveness, adequacy or enforceability of this Agreement, and the [FFF] Facility Agent shall be under no liability as a result of taking or omitting to take any action in relation to this Agreement, save in the case of gross negligence or willful misconduct in relation to such action or omission.
7.07 Waiver of Claims. Each Lender agrees that it will not assert or seek to assert against any director, officer or employee of the [FFF] Facility Agent any claim which it might have against it in respect of the matters referred to in Section 7.06.
7.08 Dealings with Parties. The [FFF] Facility Agent may accept deposits from, lend money to and generally engage in any kind of banking or other business with the Borrower.
7.09 Resignation or Removal of [FFF] Facility Agent.
(a) Subject to Section 5.06 of the Guarantee Agreement, the [FFF] Facility Agent may (after consultation with the Borrower) resign its appointment hereunder at any time without assigning any reason therefor by giving not less than [•] days' prior written notice to that effect to each of the other parties hereto, provided that no such resignation shall be effective until a successor for the [FFF] Facility Agent is appointed, and has accepted such appointment, in accordance with the succeeding provisions of this Section 7.
(b) Subject to Section 5.06 of the Guarantee Agreement, the Lenders and the Borrower may jointly, with or without cause, seek the termination of the appointment of the [FFF] Facility Agent hereunder at any time by giving not less than [•] days' prior written notice to that effect to the [FFF] Facility Agent, provided that no such termination shall be effective until a successor for the [FFF] Facility Agent is appointed, and has accepted such appointment, in accordance with the succeeding provisions of this Section 7, and provided further, that any such notice of termination must be signed by all of the Lenders and the Borrower.
(c) For the avoidance of doubt the parties hereto agree that the provisions of this Section 7.09 shall at no time apply to or restrict the ability of the Administrative Agent to resign its position of Administrative Agent.
(d) Upon [FFF] becoming subrogated to all rights of the Lenders pursuant to Section 17.18, the [FFF] Facility Agent shall be deemed to have resigned (and such resignation shall be deemed to be effective), and any agency created hereunder shall terminate, and any reference to the [FFF] Facility Agent thereafter, to the extent applicable, shall be construed instead as a reference to [FFF].
7.10 Replacement [FFF] Facility Agent. (a) If the [FFF] Facility Agent gives notice of its resignation pursuant to Section 7.09(a) or receives notice of termination pursuant to Section 7.09(b), then any reputable and experienced bank or other financial institution acceptable to [FFF] (and, as long as no unwaived Default or Event of Default has occurred and is continuing, the Borrower) may be appointed as a successor to the [FFF] Facility Agent by the Majority [FFF] Lenders during the period of such notice but, if no such successor is so appointed, the [FFF] Facility Agent may appoint such a successor itself with the consent of [FFF]; provided, that such successor (i) shall be an Acceptable Financial Institution authorized under all Applicable Law to exercise corporate trust powers, (ii) shall be acceptable to [FFF] and (iii) shall be acceptable to the Majority [FFF] Lenders (and, unless a Default or Event of Default has occurred and is continuing, the Borrower); and provided further, that if the Majority [FFF] Lenders and the Borrower, if applicable, do not confirm such acceptance in writing within [•] days following selection of such successor by the resigning or removed [FFF] Facility Agent or otherwise designate a successor acceptable to the Majority [FFF] Lenders and the Borrower, if applicable, within such [•]-day period, and such proposed successor shall satisfy clauses (i) and (ii) above, then the Majority [FFF] Lenders and the Borrower shall be deemed to have given such acceptance and such successor shall be deemed appointed as the successor to such resigning or removed [FFF] Facility Agent hereunder.
(b) If a successor to the [FFF] Facility Agent is appointed under the provisions of Section 7.10, then promptly following such successor's acceptance of such appointment, (a) the retiring [FFF] Facility Agent shall be discharged from any further obligation hereunder but shall remain entitled to the benefits of the provisions of this Section 7 and (b) its successor and each of the other parties hereto shall have the same rights and obligations amongst themselves as they would have had if such successor had been a party hereto. After any retiring [FFF] Facility Agent's resignation or removal hereunder as [FFF] Facility Agent, the provisions of this Section 7 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the [FFF] Facility Agent.
7.11 Non-Reliance on [FFF] Facility Agent. It is understood and agreed by each Lender that it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness, condition, affairs, status and nature of the Borrower and [FFF] and, accordingly, each Lender warrants to the [FFF] Facility Agent that it has not relied and will not hereafter rely on the [FFF] Facility Agent:
(a) to check or inquire on its behalf into the adequacy, accuracy or completeness of any information provided by any party in connection with this Agreement or the transactions herein contemplated (whether or not such information has been or is hereafter circulated to such Lender by the [FFF] Facility Agent); or
(b) to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Borrower.
7.12 Agency Division Separate. In acting as [FFF] Facility Agent for the Lenders, the [FFF] Facility Agent's agency division shall be treated as a separate entity from any other of its divisions or departments and, notwithstanding the foregoing provisions of this Section 7, in the event that the [FFF] Facility Agent should act for the Borrower in any capacity in relation to any other matter, any information given by the Borrower to the [FFF] Facility Agent in such other capacity may be treated as confidential by the [FFF] Facility Agent.
7.13 No Duties Except as Specified. The [FFF] Facility Agent shall have only those duties, obligations and responsibilities which are expressly set forth in this Agreement and any other Transaction Document to which the [FFF] Facility Agent is a party.
7.14 Administrative Agent. Each party hereto (other than the Administrative Agent) acknowledges that the Administrative Agent is a party hereto and to the other Borrower Documents only in its capacity as Administrative Agent of the Primary Lender and the Primary Lender's commercial paper holders.
SECTION 8. POST-COMPLETION FUNDING OPTIONS
8.01 Post-Completion Funding Options. Subject to Section 8.02, the Borrower in its sole discretion may select one of the following Post-Completion Funding Options:
(a) to maintain the Guaranteed Credit from and after the Completion Date in accordance with the terms of Parts I and III of this Agreement ("Post‑Completion Funding Option 1"); or
(b) to repay in full the Guaranteed Credit outstanding on the [FFF] Disbursement Date with the proceeds of the [FFF] Disbursement in accordance with the provisions of Section 4.04(a) ("Post‑Completion Funding Option 2").
8.02 Selection of Post-Completion Funding Options.
(a) The Borrower shall notify [FFF] and the [FFF] Facility Agent in writing by no later than ninety (90) days prior to the [FFF] Final Disbursement Date which Post-Completion Funding Option it wishes to select.
(b) Post-Completion Funding Option 1 will be deemed to be selected by the Borrower if:
(1) the Borrower expressly selects Post-Completion Funding Option 1; or
(2) on or prior to the date ninety (90) days prior to the [FFF] Final Disbursement Date, the Borrower shall not have issued a notice pursuant thereto selecting Post-Completion Funding Option 2.
(3) Notwithstanding the foregoing, if the conditions precedent to the making of the [FFF] Disbursement are not satisfied and the [FFF] Disbursement does not occur, the Borrower will be deemed to have selected Post-Completion Option 1, notwithstanding any prior selection of Post-Completion Option 2.
PART II
THE [FFF] CREDIT
SECTION 9. THE [FFF] CREDIT
9.01 Amount of the [FFF] Credit. (a) [FFF] hereby establishes the [FFF] Credit (the "[FFF] Credit"), upon the terms and conditions set forth in Parts II and III, in favor of the Borrower to enable the Borrower to: (i) finance, in an aggregate amount not to exceed U.S.$ [•], the Financed Portion of the costs incurred on or after the Initial Eligibility Date by the Borrower for the purchase of the Items in [Name of the Country] and their export to the Borrower's Country; (ii) finance, in an aggregate amount not to exceed U.S.$ [•], the Local Cost Financed Portion of the costs incurred on or after the Initial Eligibility Date by the Borrower for the purchase of the Local Cost Items in the Borrower's Country; (iii) finance, in an aggregate amount not to exceed $[•], the IDC Financed Portion of IDC; and (iv) finance the Exposure Fee referred to in Section 6.01(a)(ii). All amounts that are to be financed under the [FFF] Credit shall have been disbursed in accordance with the [FFF] Utilization Procedures, the Common Agreement and this Agreement.
(b) On the terms and conditions hereof, [FFF] shall disburse the [FFF] Credit in a single disbursement, subject to satisfaction of the conditions precedent to such disbursement under Section 11.01, and otherwise in accordance with Section 11.02 (such date of disbursement of the [FFF] Credit, the "[FFF] Disbursement Date"). The [FFF] Credit shall be disbursed for credit to the [FFF] Disbursement Account under and as defined in the Trust Agreement) and promptly applied to repayment of the Guaranteed Credit outstanding pursuant to Section 4.04(a).
(c) The aggregate [FFF] Credit shall not under any circumstances exceed the lesser of:
(x) the sum of (i) the aggregate amount of the Financed Portion of all of the Items; (ii) the aggregate amount of the Local Cost Financed Portion of all of the Local Cost Items; (iii) the aggregate amount of the IDC Financed Portion of IDC and (iv) the Exposure Fee payable on such Financed Portion, Local Cost Financed Portion and IDC Financed Portion; and
(y) the Maximum [FFF] Credit Amount (less the amount of any prepayments previously made under Section 4.04 in respect of the Guaranteed Credit).
(d) All amounts due to [FFF] under Parts II and III, the [FFF] Note and the other Financing Documents are secured by the Collateral and entitled to the benefit of the Security Documents. Any amount of the [FFF] Credit not disbursed on the [FFF] Disbursement Date shall automatically be canceled upon and as of the close of business at [FFF] on the [FFF] Disbursement Date.
9.02 Credit Availability. The [FFF] Credit shall not be disbursed after, and [FFF]'s commitment to make available the [FFF] Credit shall terminate upon, the close of business at [FFF] on the [FFF] Final Disbursement Date.
SECTION 10. TERMS OF THE [FFF] CREDIT
10.01 Principal Repayment. The Borrower shall repay all principal amounts disbursed under the [FFF] Credit in [•] successive equal semi-annual installments on the Payment Dates; provided that, on the Final Maturity Date, the Borrower shall repay in full the principal amount of the [FFF] Credit then outstanding. If the [FFF] Credit is not fully disbursed, promptly following the [FFF] Disbursement Date the schedule attached to the [FFF] Note shall be adjusted and incorporated into a new [FFF] Note in accordance with Section 10.06(b).
10.02 Interest Payment. (a) The Borrower shall pay interest in arrears on each Interest Payment Date occurring after the [FFF] Disbursement Date on all amounts disbursed and outstanding from time to time under the [FFF] Credit, calculated at an interest rate equal to [•] percent ([•]%) per annum.
(b) If any amount of principal, accrued interest, fees or other amounts owing by the Borrower to [FFF] in respect of the [FFF] Credit, the [FFF] Note or any other Financing Document is not paid in full when due (whether at its stated maturity, by acceleration or otherwise), the Borrower shall pay to [FFF] on demand interest on such unpaid amount (to the extent permitted by Applicable Law) for the period from the date said amount was due (the "Payment Default Date") until the date that such amount shall have been paid in full, at an interest rate per annum equal to the higher of: (i) the New Borrowing Rate, as in effect on the Payment Default Date (such rate to remain in effect until such amount is paid in full) (as defined below); or (ii) the rate specified in Section 10.02(a) above plus [•] percent ([•]%) per annum. "New Borrowing Rate" shall mean the rate specified on the Commerce Department Economic Bulletin Board, under the heading "Interest Rate for Credit Reform Act", for the year and calendar quarter in which the Payment Default Date occurs, and under the "
10.03 Credit Commitment Fee. The Borrower shall pay or cause to be paid to [FFF] a commitment fee on the Maximum [FFF] Credit Amount (the "Credit Commitment Fee") for the period from and including [•], 20[•], to but not including the earlier of (i) the [FFF] Disbursement Date and (ii) the [FFF] Final Disbursement Date, at a rate per annum equal to [•] percent ([•]%) and calculated on the basis of the actual number of days elapsed (including the first day but excluding the last), using a 360-day year. Accrued Credit Commitment Fee shall be payable on each Interest Payment Date and on the earlier of the [FFF] Disbursement Date and the [FFF] Final Disbursement Date. Not later than [•] Business Days prior to each Interest Payment Date and not later than [•] Business Days prior to the [FFF] Disbursement Date, [FFF] shall notify the Borrower of the amount of the Credit Commitment Fee due and payable on such Interest Payment Date or on the [FFF] Disbursement Date. For the avoidance of doubt, the parties hereto acknowledge and agree that the Credit Commitment Fee shall continue to accrue and become due and payable as described above during any period in which Disbursements of the Guaranteed Credit are suspended as described in Section 12.02(a).
10.04 Voluntary Prepayment. The Borrower may from time to time voluntarily prepay all or any part of the principal of the [FFF] Credit, provided that the Borrower: (i) shall have given [FFF] [•] days' prior written notice of the proposed amount and date of prepayment; (ii) shall have paid in full all interest that has accrued to the date of prepayment on the principal amount so prepaid, together with all other amounts then due to [FFF] under this Agreement, the [FFF] Note or any other Financing Document as of the date of such prepayment; (iii) shall pay to [FFF] a prepayment charge; and (iv) complies with and makes such prepayment only if permitted by the terms of Section 3.2 of the Common Agreement. The prepayment charge shall be equal to the amount by which the prepaid principal amount is less than the sum of the present values, discounted from the scheduled payments dates, of (A) the installments of principal being prepaid, plus (B) the amounts of interest that otherwise would have accrued on such principal amounts to the scheduled repayment dates. The discount rate used to calculate such present values shall be that rate of interest specified in the weekly Federal Reserve Statistical Release, H.15 (519) Selected Interest Rates, in the category "U.S. government securities; Treasury bills, Secondary market" for a Maturity Period (as hereafter defined) through one year, or in the category "U.S. government securities; Treasury constant maturities" for a Maturity Period of greater than [•] year, in the column for [Name of the City] business day which is [•] [Name of the City] business days prior to the date of prepayment. "Maturity Period" shall mean the weighted average of the periods between the date of prepayment and the scheduled repayment dates of the installments of principal of the [FFF] Credit that are prepaid. All voluntary prepayments shall be applied to the installments of principal of the [FFF] Credit in the inverse order of their maturities.
10.05 Mandatory Prepayment. The Borrower shall prepay the outstanding principal amount of the [FFF] Credit at the times and subject to the terms provided in Section 3.2.3 of the Common Agreement and as may otherwise be provided in the Trust Agreement, in each case together with a prepayment premium or charge calculated in accordance with Section 10.04(a), accrued interest on the principal amount of the [FFF] Credit so prepaid and all other amounts then due to [FFF] under this Agreement, the [FFF] Note and the Financing Documents. In the case of any partial payments, such prepayments shall be applied to the installments of principal of the [FFF] Credit in the inverse order of their maturities.
10.06 [FFF] Note. (a) The Borrower agrees that to evidence further its obligation to repay all amounts disbursed under the [FFF] Credit, with interest accrued thereon, on the [FFF] Disbursement Date it shall issue and deliver to [FFF] the [FFF] Note, which shall be in the form of Annex A-3 or as otherwise agreed upon by the parties hereto. The [FFF] Note shall be valid and enforceable as to its principal amount at any time only to the extent of the aggregate amounts then disbursed and outstanding under the [FFF] Credit and, as to interest, only to the extent of the interest accrued thereon. In the absence of manifest error, [FFF]'s internal records regarding payments made on account of amounts owing under Parts II and III and the [FFF] Note shall be conclusive and binding.
(b) If requested by [FFF], at any time on or after the [FFF] Disbursement Date, the Borrower shall issue and deliver to [FFF] a new note in exchange for the [FFF] Note previously issued and delivered hereunder, whereupon [FFF] shall surrender such previously issued [FFF] Note for cancellation to the Borrower. The principal amount of such new note shall equal in the aggregate the principal amount of the [FFF] Credit then disbursed and outstanding.
(c) If any [FFF] Note is mutilated, lost, stolen or destroyed, the Borrower shall issue and deliver a new [FFF] Note of the same date, maturity and denomination as the [FFF] Note so mutilated, lost, stolen or destroyed; provided that, in the case of any mutilated [FFF] Note, such mutilated [FFF] Note shall be returned to the Borrower for its cancellation after examination by [FFF], and, in the case of any lost, stolen or destroyed [FFF] Note, the Borrower and [FFF] shall have first received evidence of such loss, theft or destruction as shall reasonably be considered satisfactory to each of them, together with an indemnity reasonably satisfactory to each of them.
SECTION 11. CONDITIONS PRECEDENT
11.01 Conditions Precedent. The making of the [FFF] Disbursement is subject to the following conditions precedent having been fulfilled in a manner that is satisfactory to [FFF] or waived in writing by [FFF] as of the date on which the [FFF] Disbursement is requested by the Borrower to be made:
(a) [FFF] Note and Guaranteed Notes. [FFF] shall have received the (i) [FFF] Note, duly executed by the Borrower in the principal amount of the [FFF] Credit and (ii) all outstanding Guaranteed Notes, which shall promptly be canceled.
(b) Legal Opinions. [FFF] shall have received (i) the opinions of (A) [Name of the Law Firm], Borrower's special [Name of the City] counsel, (B) [Name of the Law Firm], Borrower's special [Name of the Country] counsel, and (C) [Name of the Law Firm], [FFF]'s special [Name of the Country] counsel, and (ii) if requested by [FFF], opinions from other independent or in-house legal counsel chosen by [FFF] as to such matters relating to this Agreement, the [FFF] Note or the Transaction Documents, as [FFF] may reasonably specify to address any matters reasonably required as a result of the passage of time or change in circumstances or both.
(c) Evidence of Authority. [FFF] shall have received evidence of the authority of the Borrower to execute, deliver and perform the terms and conditions of this Agreement as of the date of signing and evidence of authority (including specimen signatures) for each Person who, on behalf of the Borrower, signed (or will sign) this Agreement, the [FFF] Note and the other documents required by this Agreement, or will otherwise act as representatives of the Borrower in the operation and administration of the [FFF] Credit.
(d) Transaction Documents. [FFF] shall have received a certification signed by an Authorized Officer of the Borrower and expressed to be effective as of the [FFF] Disbursement Date, stating that the Borrower is in compliance in all material respects with the ECA and each other Project Document to which it is a party and that all such agreements are in full force and effect.
(e) Security. (i) The Security Documents shall be in full force and effect, and the security interests granted therein shall have been duly created, perfected and, where appropriate, registered, to create and maintain the security interest and priority over the Collateral as is required under the Security Documents, and (ii) the Borrower shall have delivered to [FFF] a certificate from an Authorized Officer of the Borrower and expressed to be effective as of the [FFF] Disbursement Date stating that the conditions set forth in clause (i) above shall have been satisfied.
(f) Agent for Service of Process. [FFF] shall have received evidence that the Borrower has irrevocably appointed as its agent for service of process the Person so specified in Section 11.15.3 of the Common Agreement and that such agent has accepted the appointment for at least the term of the [FFF] Credit plus one year and has agreed to forward forthwith to the Borrower all legal process addressed to the Borrower, received by such agent.
(g) Insurance. [FFF] shall have received a certification from the Insurance Advisor stating that the insurance policies required pursuant to Section 7.18 of the Common Agreement to be in effect on the [FFF] Disbursement Date are in full force and effect.
(h) Project Completion. Each of the events and conditions set forth in Section 5.1 of the Common Agreement shall have occurred or be in existence, the conditions in Section 5.3.5 of the Common Agreement shall be satisfied, and [FFF] shall have received the report referred to in Section 5.2(c) of the Common Agreement.
(i) No Default or Event of Default. (i) No Default or Event of Default exists and is continuing or would exist after giving effect to the [FFF] Disbursement that, in any such case, has not been waived in writing by [FFF]; and
(ii) the Borrower shall have delivered a certification signed by an Authorized Officer of the Borrower and expressed to be effective as of the [FFF] Disbursement Date stating that the conditions set forth in clause (i) above shall have been satisfied.
(j) Material Adverse Effect. Since the Closing Date, no event or circumstance has occurred and is continuing that, in the reasonable opinion of [FFF], constitutes a Material Adverse Effect.
(k) Amendments and Waivers. No amendment, modification or supplement to, or waiver or consent under, any Transaction Document shall have been entered into, granted or given, or shall have been permitted to be made, other than any which has been so entered into, granted, given or as permitted under the Common Agreement; and the Borrower shall have delivered a duly executed and completed certificate of an Authorized Officer of the Borrower and expressed to be effective as of the [FFF] Disbursement Date to such effect.
(l) Evidence of Real Property Rights. The Borrower has acquired and registered, and has provided certificates of title and registration or other evidence thereof reasonably satisfactory to [FFF], all real property rights necessary or desirable until repayment in full of the [FFF] Credit for the operation and maintenance of the Project, and the Borrower shall have delivered a duly executed and completed certificate of an Authorized Officer of the Borrower and expressed to be effective as of the [FFF] Disbursement Date to such effect.
(m) Fees and Costs. All fees due pursuant to Section 10.03, and all costs and expenses required to be paid pursuant to Section 14.04 shall have been paid by the Borrower.
(n) Outside Counsel. Evidence that the reasonable and documented fees and out-of-pocket expenses due and payable to all counsel to [FFF] have been fully paid.
11.02 Request for [FFF] Disbursement. The Borrower may, no earlier than fifteen (15) and no later than [•] [Name of the City] Business Days prior to the date on which the [FFF] Disbursement is requested by the Borrower to be made, submit to [FFF] a completed and duly executed Request for [FFF] Disbursement; provided, however, that no [FFF] Disbursement shall be made in respect of such Request for [FFF] Disbursement until the conditions set forth in Section 11.01 have been (x) fulfilled or (y) waived in writing by [FFF]. The Request for [FFF] Disbursement shall be executed by an Authorized Officer of the Borrower and shall be accompanied by: (i) true, correct and complete copies of each [FFF] Certificate; (ii) a true, correct and complete Reconciliation Certificate; and (iii) a written undertaking from the [FFF] Facility Agent in the form of Exhibit 2 to Annex D. In no event shall the maximum amount of the [FFF] Disbursement exceed the aggregate of the Dollar amounts certified by [FFF] in the accompanying [FFF] Certificates as amounts eligible for [FFF] support. Notwithstanding anything to the contrary contained herein or in the Common Agreement, the Borrower may only submit one (1) Request for [FFF] Disbursement under this Agreement; provided, however, that the Borrower shall be permitted to re-submit any Request for [FFF] Disbursement that has been rejected by [FFF] for failure to comply with the terms of this Agreement, so long as the date requested by the Borrower for the [FFF] Disbursement in such resubmittal is on or prior to the [FFF] Final Disbursement Date and the above requirements of this Section 11.02 have otherwise been satisfied. The Borrower shall apply the proceeds of the [FFF] Disbursement to the payment of amounts owed to the Lenders under the Guaranteed Credit.
PART III
COMMON PROVISIONS
SECTION 12. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT
12.01 Cancellation by the Borrower. (a) Subject to the terms of Section 2.8 of the Common Agreement, the Borrower may cancel at any time all or any part of the undisbursed and uncanceled amount of the Guaranteed Credit; provided that [•] days' prior written notice is given to the [FFF] Facility Agent and [FFF] and such cancellation is permitted under such Section 2.8. In the event of a cancellation of all or part of the Guaranteed Credit by the Borrower, the Borrower, on or before the proposed date of cancellation, shall pay (a) to [FFF] all Guarantee Commitment Fees accrued and unpaid under Section 6.01(a) and all other amounts due and payable to [FFF] under this Agreement as of the proposed date of cancellation and (b) to the [FFF] Facility Agent and the Lenders any fee if unpaid under Section 6.01(b) and all other amounts due and payable to the Lenders and the [FFF] Facility Agent under this Agreement as of the proposed date of cancellation. The [FFF] Facility Agent shall endeavor to provide documentation and support for amounts paid to it under the foregoing clause (b). Notwithstanding any such cancellation of the Guaranteed Credit in full under this Section 12.01(a), Sections 1, 6 (other than Section 6.01(a)), 7, 14, 16 and 17 of this Agreement shall remain in full force and effect. Any undisbursed and uncanceled amount of the Guaranteed Credit that is cancelled pursuant to this Section 12.01 may not be reinstated by the Borrower.
(b) The Borrower may cancel at any time all or any part of the [FFF] Credit, provided that thirty (30) days' prior written notice is given to [FFF]. In the event of a cancellation of all or any part of the [FFF] Credit by the Borrower, the Borrower shall pay to [FFF], on or before the proposed date of cancellation, all Credit Commitment Fees accrued and unpaid under Section 12.03 and all other amounts due and payable to [FFF] under this Agreement or any other Financing Document as of the proposed date of cancellation. Upon cancellation in full of the [FFF] Credit, the following provisions shall remain in full force and effect: Sections 1, 14, 16 and 17.
12.02 Suspension and Cancellation by [FFF].
(a) (i) In the event that (A) an Event of Default should occur and be continuing or (B) at any time the right of the Borrower to request Disbursements (as defined in the Common Agreement) in accordance with any Senior Credit Agreement shall be suspended thereunder or all or any part of any Commitment shall be canceled under and in accordance with the relevant Senior Credit Agreement (other than any cancellation made upon the voluntary request of the Borrower or in respect of the Guaranteed Credit), then [FFF], by written notice to the [FFF] Facility Agent and the Borrower, may: (x) in the circumstance described in clause (A) or following such suspension in the case of clause (B), suspend further Disbursements of the Guaranteed Credit until [FFF] is satisfied that the cause of such suspension has been removed; or (y) subject to the terms and conditions of the Intercreditor Agreement, in the circumstance described in clause (A) or following such cancellation in the case of clause (B), cancel the unutilized and uncanceled amount of the Guaranteed Credit.
(ii) In the event of a cancellation of all or part of the Guaranteed Credit by [FFF], the Borrower shall pay (1) to [FFF] all Guarantee Commitment Fees accrued and unpaid under Section 6.01(a) and all other amounts due and payable to [FFF] in respect of the Guaranteed Credit as of the date of cancellation and (2) to the [FFF] Facility Agent and the Lenders any fees accrued and unpaid under Section 6.01(b) and all other amounts due and payable to the Lenders and the [FFF] Facility Agent in respect of the Guaranteed Credit as of the date of cancellation. Notwithstanding any cancellation in full of the Guaranteed Credit under this Section 12.02(a), Sections 1, 6 (other than Section 6.01(a)), 7.01, 14, 16 and 17 of this Agreement shall remain in full force and effect.
(b) (i) In the event that:
(A) prior to the [FFF] Disbursement Date, the Borrower shall fail to pay when due any Credit Commitment Fee payable by the Borrower to [FFF] hereunder; or
(B) at any time, [FFF] shall suspend all or any Disbursement or Utilization of the Guaranteed Credit or the right of the Borrower under any Senior Credit Agreement to request Disbursements (as defined in the Common Agreement) shall be suspended thereunder in accordance with such Senior Credit Agreement; or
(C) at any time, [FFF] shall cancel all or any part of the Guaranteed Credit or any Commitment shall be canceled under and in accordance with the relevant Senior Credit Agreement (other than any such cancellation of any undrawn Commitment on the Final Disbursement Date);
then [FFF], by written notice to the Borrower may (but subject to the terms and conditions of the Intercreditor Agreement):
(X) in the case of clause (i)(A) above, suspend disbursement of the [FFF] Credit until all such amounts due and owing to [FFF] shall have been paid in full to [FFF] (whether by or on behalf of the Borrower or by another Person, including any Major Project Party);
(Y) in the case of clause (i)(B) above, suspend disbursement of the [FFF] Credit until it is satisfied that the cause of such suspension has been removed; and
(Z) in the case of clause (i)(C) above, cancel the unutilized amount of the [FFF] Credit.
(ii) Notwithstanding any cancellation in full of the [FFF] Credit under this Section 12.02(b), Sections 1, 6, 10.03, 14, 16 and 17 of this Agreement shall remain in full force and effect.
(c) The terms of this Section 12.02 shall be in addition to and not in limitation of any other rights of [FFF] under this Agreement, the Common Agreement or any other Financing Document.
12.03 Events of Default. (a) Section 9 of the Common Agreement is incorporated by reference herein as if fully set forth herein and each Event of Default set forth in Section 9.1 of the Common Agreement shall constitute an event of default hereunder. If one or more such events of default shall have occurred and be continuing, then [FFF] shall have all the rights and remedies set forth in and subject to the terms of Section 9.2 of the Common Agreement, as incorporated by reference herein.
(b) Upon the occurrence of any Event of Default, and at any time thereafter, if such event is continuing, [FFF], by written notice to the Borrower and, if prior to the [FFF] Disbursement Date, the [FFF] Facility Agent, subject to and in accordance with the provisions of the Intercreditor Agreement, may declare immediately due and payable (i) all or any portion of the disbursed principal amount of any Credit then outstanding and any Note then outstanding, including accrued and unpaid interest thereon to the date of payment, and (ii) all other amounts owing under this Agreement. Except as expressly provided in this Section 12.03(b), presentment, demand, protest and all other notices of any kind are hereby expressly waived. The aforementioned right to accelerate is in addition to and not a substitute for any other rights and remedies available to [FFF], the [FFF] Facility Agent or the Lenders under this Agreement, any Note or Applicable Law.
(c) The terms of this Section 12.03 above shall be in addition to and not in limitation of any other rights of [FFF] under this Agreement, the Common Agreement or any other Financing Document.
SECTION 13. REPRESENTATIONS, WARRANTIES AND COVENANTS
13.01 Representations and Warranties of the Borrower.
(a) The Borrower represents and warrants to [FFF], the [FFF] Facility Agent and the Lenders that:
(1) Common Agreement. The representations and warranties set forth in Section 6 of the Common Agreement are true and correct in all material respects as if made as of the date hereof (except where expressed to be true and correct as of a specified date), which representations and warranties are incorporated herein as if fully set forth herein.
(2) Purchase Contract(s). No Applicable Law of the Borrower's Country is or will be violated by either any Purchase Contract or the Borrower's performance of its obligations under any Purchase Contract.
(3) Use of Items. The Items and the Local Cost Items will be used for lawful purposes.
(4) No Delinquency on Amounts Due to [Name of the Country]. To the best of the Borrower's knowledge and belief after due diligence, the Borrower is not delinquent on any amounts due and owing to any Other Governmental Authority of [Name of the Country] as of the date of this Agreement.
(5) Suspension and Debarment, etc. On the date of this Agreement, neither the Borrower nor its Principals (as defined below) are (A) debarred, suspended, proposed for debarment with a final determination still pending, declared ineligible or voluntarily excluded (as such terms are defined in any of the Debarment Regulations) from participating in procurement or nonprocurement transactions with any government department or agency pursuant to any of the Debarment Regulations or (B) indicted, convicted or had a civil judgment rendered against the Borrower or any of its Principals for any of the offenses listed in any of the Debarment Regulations. Unless authorized by [FFF], the Borrower will not knowingly enter into any transactions in connection with the Items with any person who is debarred, suspended, declared ineligible or voluntarily excluded from participation in procurement or nonprocurement transactions with any United States May 26, 1988 ), (y) Subpart 9.4 (Debarment, Suspension, and Ineligibility) of the Federal Acquisition Regulations, 48 C.F.R. 9.400 -9.409 and (z) the revised Government-wide Debarment and Suspension (Nonprocurement) regulations (Common Rule), 60 Fed. Reg. 33037 (June 26, 1995 ).
(b) The Borrower acknowledges that it has made the representations and warranties set forth in Section 13.01(a) with the intention of inducing [FFF], the [FFF] Facility Agent and the Lenders to (i) enter into this Agreement, the Guarantee Agreement, the Common Agreement and the other Transaction Documents to which [FFF], the [FFF] Facility Agent and the Lenders are a party, as the case may be, and (ii) make Disbursements and approve Utilizations, and make the [FFF] Disbursement, and that [FFF], the [FFF] Facility Agent and the Lenders have entered into this Agreement, the Guarantee Agreement, the Common Agreement and the other Transaction Documents to which [FFF], the [FFF] Facility Agent and the Lenders are party, as the case may be, on the basis of, and in full reliance on, each of such representations and warranties. The Borrower warrants that each of such representations is true and correct in all material respects as of the date of this Agreement and that none of such representations omits any matter necessary to make such representation not misleading in any material respect. The representations referred to in this Section 13.01 shall survive the execution and delivery of this Agreement, each Disbursement, each Utilization, the [FFF] Disbursement and the cancellation and/or repayment of any or all the Credits.
(c) The representations and warranties of the Borrower set forth in Section 13.01(a) shall be deemed repeated as of the date of each Disbursement and Utilization, as the case may be, with the same force and effect as if made on such date.
13.02 Covenants of the Borrower. The Borrower covenants and agrees that until all amounts owing under this Agreement and the Note(s) have been paid in full, the Borrower will, unless [FFF] shall have consented in writing:
(a) Common Agreement. Observe and perform the covenants set forth in Sections 7 and 8 of the Common Agreement, which covenants are incorporated herein as if fully set forth herein, in accordance with the terms thereof.
(b) Acquisition List. Not amend or otherwise materially alter the Acquisition List.
(c) Purchase Contract(s). Not assign any of the Borrower's rights or obligations under any Purchase Contract or materially modify or cancel or consent to the material modification or cancellation of any Purchase Contract.
(d) Use of Items and Local Cost Items. Except to the extent permitted in the following proviso, until all amounts owing under this Agreement and the Notes have been paid in full, not sell the Items or Local Cost Items, or use or permit the use of the Items or Local Cost Items in any country other than the Borrower's Country; provided that the Borrower may convey, sell, lease or otherwise dispose of an Item or a Local Cost Item as permitted under the Common Agreement and the Security Documents.
(e) Other Acts. From time to time, do and perform any and all acts and execute any and all documents as may be necessary or as reasonably requested by the [FFF] Facility Agent or [FFF] in order to effect the purposes of this Agreement and to protect the interests of the [FFF] Facility Agent, the Lenders and [FFF] in the Note(s) and the interests of the Lenders in the [FFF] Guarantee.
SECTION 14. PAYMENTS; TAXES; EXPENSES
14.01 Method of Payment.
(a) All payments to be made by the Borrower under this Agreement or any Note (whether at stated maturity, by reason of acceleration or prepayment or otherwise) shall be made without set-off or counterclaim in Dollars in immediately available and freely transferable funds no later than [Time] ([Name of the City] time) on the date on which due (as applicable):
(1) if to the Primary Lender or the Alternate Lender, to [CCC] for the account of [DDD]; Account No. [•], Attn: Loans Agency and including a reference to [FFF] Guarantee No. [•]; or to such other accounts in [Name of the Country] or, with the approval of [FFF], elsewhere, as directed in writing by the [FFF] Facility Agent; provided that where a sum is to be paid hereunder to the [FFF] Facility Agent for account of the Lenders, the [FFF] Facility Agent shall not be obliged to make the same available to the Lenders until the [FFF] Facility Agent has been able to establish to its satisfaction that it has actually received such sum; and
(2) if to [FFF], at the [•] Bank for credit to [FFF]'s account: [Payment Date] Guarantee No. [•].
(b) Except as otherwise provided herein, whenever any payment would otherwise fall due under this Agreement, any Note, or any Financing Document on a day which is not a Business Day (as defined in the Common Agreement), the due date for payment shall be the immediately succeeding Business Day (as defined in the Common Agreement) and interest and fees shall be computed in accordance with Section 17.01.
14.02 Application of Payments. (a) The Lenders and [FFF] shall each apply payments received by it in respect of the Guaranteed Credit or any Guaranteed Note (whether at stated maturity, by reason of acceleration, prepayment or otherwise) in the following order of priority: (i) interest due pursuant to Section 4.02(a)(ii), but only to the extent such amounts are included in the "[FFF] Guaranteed Amount" as such term is defined in the Guarantee Agreement; (ii) Guarantee Commitment Fees, Exposure Fees and all other amounts due to [FFF] in respect of the Guaranteed Credit and not otherwise provided for under this Section 14.02(a); (iii) interest due pursuant to Section 4.02(a)(i); (iv) installments of principal due; and (v) all other amounts due in respect of the Guaranteed Credit and not otherwise provided for in this Section 14.02(a). Payments with respect to the Guaranteed Note(s) shall be applied pro rata to each Guaranteed Note in accordance with the above priorities.
(b) [FFF] shall apply payments received by it in respect of the [FFF] Credit, the [FFF] Note or the other Financing Documents (whether at stated maturity, by reason of acceleration or prepayment or otherwise) in the following order of priority: (i) interest due pursuant to Section 10.02(b); (ii) Credit Commitment Fees, Credit Exposure Fees and all other amounts due to [FFF] in respect of the [FFF] Credit, the [FFF] Note or the other Financing Documents and not otherwise provided for under this Section 14.02(b); (iii) interest due pursuant to Section 10.02(a); and (iv) installments of principal due.
14.03 Taxes.
(a) The Borrower agrees to pay all amounts owing by it under this Agreement or any Note free and clear of and without deduction or withholding for or on account of any Taxes. In addition, the Borrower agrees to pay any present or future stamp, documentary or excise taxes, charges or levies that arise from any payment made under this Agreement or under any Note or from the execution, delivery or registration of, or otherwise with respect to this Agreement or any Note (collectively, "Stamp Taxes").
(b) The Borrower further agrees:
(i) that, if the Borrower is prevented by operation of law from paying or reimbursing (as the case may be) any such Taxes or Stamp Taxes or any such Taxes or Stamp Taxes (if applicable) are required to be deducted or withheld, then the interest, fees or expenses required to be paid under this Agreement or any Note shall, on an after-tax basis, be increased by the amount necessary to yield to the Lenders or [FFF], as the case may be, interest, fees or expenses in the amounts provided for in this Agreement or such Note after the provision for the payment of all such Taxes and Stamp Taxes (if applicable);
(ii) that the Borrower shall, at the request of either Lender or [FFF], execute and deliver to such Lender or [FFF], as the case may be, such further instruments as may be necessary or desirable to effect the payment of the increased amounts as provided for in subsection (i) above, including new Note(s) to be issued by the Borrower in exchange for any Note(s) previously issued;
(iii) that the Borrower shall hold the Lenders and [FFF] harmless from and against any liabilities with respect to any Taxes or Stamp Taxes (if applicable) (whether or not properly or legally asserted); and
(iv) that the Borrower shall provide the Lenders and [FFF], within [•] days after the actual payment of such Taxes, with the original or a certified copy of evidence of the payment of any Taxes by the Borrower or, if no Taxes have been paid, provide the Lenders and [FFF], at the request of either a Lender or [FFF], with a certificate from the appropriate taxing authority or an opinion of Borrower's counsel, acceptable in either case to the [FFF] Facility Agent and [FFF], stating that no Taxes are payable.
(c) Notwithstanding anything to the contrary contained herein, the agreements in this Section 14.03 shall survive the termination of this Agreement and the payment of the Note(s) and all other amounts due hereunder.
14.04 Expenses; Indemnity. (a) The Borrower hereby agrees, whether or not the transactions hereby contemplated shall be consummated, to pay, or reimburse the [FFF] Facility Agent and [FFF], respectively, for all costs, expenses, commissions, charges, fees and other amounts payable under and in accordance with Sections 11.1 and 11.3 of the Common Agreement, in each case upon the terms and conditions of such Sections 11.1 and 11.3. All amounts payable by the Borrower pursuant to this Section 14.04 shall be paid by the Borrower in the currency in which the same has been incurred and is payable by the [FFF] Facility Agent, the applicable Lender or [FFF], as the case may be.
(b) For the avoidance of doubt, the obligations of the Borrower under this Section 14.04 shall (i) be effective from the date of this Agreement; (ii) remain in effect in the event and notwithstanding the fact that any Disbursement, any Utilization or the [FFF] Disbursement shall fail to occur; and (iii) survive the cancellation or repayment of each of the Guaranteed Credit and the [FFF] Credit.
SECTION 15. [FFF] FINANCING REQUIREMENTS
15.01 Eligibility for [FFF] Financing.
(a) [FFF] shall determine what does and does not constitute an Item, and such determination, in the absence of manifest error, shall be conclusive and binding for all purposes. The Foreign Cost associated with each Item shall be less than fifty percent (50%) of the Production Cost of such Item.
(b) All Items that are to be financed under the Credits and that are to be exported by ocean vessel must be transported from [Name of the Country] in vessels of [Name of the Country] registry, except to the extent that a waiver of this requirement is obtained from [Name of the Country]’s Maritime Administration, as described in the Utilization Procedures. Notwithstanding Section 15.01(a), if any Items are shipped on vessels of non-[Name of the Country] registry without a waiver, or contrary to the provisions of a waiver, such Items will not be eligible for financing under the Credits.
(c) If an Item is shipped on ocean vessels or aircraft of U.S.
(d) The Borrower shall obtain or cause to be obtained insurance against marine and transit hazards on all shipments of the Items in an amount not less than the amount of the Disbursements that have been or are to be made with respect to those shipments. [Name of the Country]’s insurers shall be given a non-discriminatory opportunity to bid for such insurance business related to the Items. The cost of the premiums for such insurance may be included in [Name of the Country]’s Content of the insured Item if: (i) the insurance is placed in [Name of the Country] with [Name of the Country]’s companies; and (ii) the premiums are paid in the United States
(e) [FFF] will provide financing under the Credits with respect to Local Cost Items, which financing shall only cover the costs incurred by the Borrower for the purchase in the Borrower's Country of Local Cost Items, all as approved by [FFF] as eligible for financing hereunder and subject to the provisions of Annex B-2 (the "Local Cost Financed Portion").
(f) If any Purchase Contract provides for payments to a Supplier prior to completion and delivery of any Item ("Progress Payments"), the schedule for such Progress Payments, in [FFF]'s reasonable judgment, must be reasonable and consistent with industry and financial standards.
15.02 Coverage of [FFF] Guarantee. Subject to the terms and conditions of this Agreement and the Guarantee Agreement, a Disbursement made with respect to an Item, a Local Cost Item or IDC shall be covered by the [FFF] Guarantee up to the following maximum amount:
(a) an amount equal to the lesser of (i) [•] ([•]%) of the Contract Price of such Item, or (ii) [•] percent ([•]%) of the U.S. Content of such Item; plus
(b) the amount of the Local Cost Financed Portion of any such Local Cost item; plus
(c) the amount of the IDC Financed Portion; plus
(d) an amount equal to [•] percent ([•]%) of the applicable Exposure Fee.
15.03 Cash Payment. The Borrower shall have made or caused to be made a cash payment or payments from sources other than Disbursements for the purchase of each Item in an amount equal to not less than fifteen percent (15%) of the Contract Price of such Item (the "Cash Payment").
15.04 Ancillary Services. Ancillary Services relating to the Guaranteed Credit shall be treated in the same manner as any other services (including, without limitation, the requirements set forth in Section 15 of this Agreement); provided that the Foreign Cost associated with any such Ancillary Services shall be deemed to be zero if either (i) [FFF] requires that the Borrower or another Person pay for the provision of such Ancillary Services by a Supplier selected by [FFF] or (ii) [FFF] in its sole determination finds that such Ancillary Services are both necessary in order for the underlying transaction to go forward and cannot be reasonably obtained in [Name of the Country].
SECTION 16. GOVERNING LAW AND JURISDICTION
16.01 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF [Name of the Country].
16.02 Submission to Jurisdiction. Sections 11.15.2 and 11.15.5 of the Common Agreement are hereby incorporated by reference herein as if fully set forth herein.
16.03 Service of Process. Sections 11.15.3 and 11.15.4 of the Common Agreement are hereby incorporated by reference herein as if fully set forth herein.
16.04 Waiver of Immunity. Section 11.13 of the Common Agreement is hereby incorporated by reference herein as if fully set forth herein.
16.05 Waiver of Security Requirements. To the extent the Borrower may, in any action or proceeding arising out of or relating to any of the Borrower Documents brought in the Borrower's Country or elsewhere, be entitled under Applicable Law to require or claim that the [FFF] Facility Agent, the Lenders or [FFF] post security for costs or take similar action, the Borrower hereby irrevocably waives and agrees not to claim the benefit of such entitlement.
SECTION 17. MISCELLANEOUS
17.01 Computations. Each determination of an interest rate or fee by the [FFF] Facility Agent, any Lender or [FFF] pursuant to any provision of this Agreement or any Note, in the absence of manifest error, shall be conclusive and binding on the Borrower. All computations of interest and fees hereunder and under any (i) Guaranteed Note shall be made on the basis of a year of 360 days and actual days elapsed or (ii) [FFF] Note shall be made on the basis of a year of 365 or 366 (as the case may be) days and actual days elapsed. All such calculations shall include the first day and exclude the last day of the period of calculation.
17.02 Notices. Except as otherwise specified, all notices given hereunder shall be in writing in the English language, shall include the applicable Transaction Number and shall be given by mail, telecopier, telex or personal delivery and shall be deemed to be given for the purposes of this Agreement on the day that such notice is received by the intended recipient thereof, except for notices given by [FFF] pursuant to Section 12, which shall be deemed given on the earlier of: (a) the day on which such notice is received by the intended recipient; or (b) the day on which such notice is deposited in the mail or sent by telecopier, tested telex or personal delivery. Unless otherwise specified in a notice delivered in accordance with this Section 17.02, all notices shall be delivered to the parties hereto at their respective addresses set forth below:
If to the Borrower:
[AAA CORPORATION]
[Address]
Attention: President
Facsimile: [•]
Telephone: [•]
If to the [FFF] Agent and the Lenders:
[Address]
Attention: [•]
Facsimile: [•]
Telephone: [•]
Telex: [•]
with a copy to:
[DDD] Attention: [•]
[Address]
Fax: [•]
Telephone: [•]
Telex: [•]
If to the Administrative Agent:
[EEE]
[Address]
Attention: [•]
Facsimile: [•]
Telephone: [•]
If to [FFF]:
[FFF]
[Address]
Attention: [•]
Facsimile: [•]
Telephone: [•]
Telex: [•]
17.03 Disposition of Indebtedness. (a) Subject to Section 11.18.3 of the Common Agreement, each Lender may sell, assign, transfer, pledge, negotiate, grant participations in or otherwise dispose of all or any part of its interest in all or any part of the Borrower’s indebtedness under this Agreement and any Guaranteed Note to any party (collectively, a “Disposition of Indebtedness”), and any such party shall enjoy all the rights and privileges of such Lender under this Agreement and each Note that is the subject of such Disposition of Indebtedness; provided, however, that (i) except in the case of (A) a Disposition of Indebtedness from the Primary Lender to the Alternate Lender or (B) a Disposition of Indebtedness to any Person after the Final Disbursement Date, such Disposition of Indebtedness shall not, without the prior written consent of [FFF], relieve the assigning Lender of its duties under this Agreement or the Guarantee Agreement, and (ii) if such Disposition of Indebtedness is to a Person other than the Primary Lender or the Alternate Lender, it shall be subject to the prior consent of the [FFF] Facility Agent and the Borrower, which consent shall not be unreasonably withheld and, if occurring prior to the Final Disbursement Date, [FFF], which consent shall not be unreasonably withheld, and notice of such Disposition of Indebtedness shall be given by the assigning Lender to the Borrower promptly upon consummation of such Disposition of Indebtedness. The Borrower shall, at the request of the [FFF] Facility Agent or applicable Lender, execute and deliver to the [FFF] Facility Agent or such Lender, or to any party that the [FFF] Facility Agent or such Lender may designate, any such further instruments as may be necessary or desirable to give full force and effect to a Disposition of Indebtedness by the applicable Lender. The terms of this Section 17.03(a) shall not in any event apply to [FFF].
(b) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement and/or the Note(s) held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(c) Subject to the terms and conditions of the Common Agreement and the Intercreditor Agreement, [FFF] may sell, assign, transfer, pledge, negotiate, grant participations in or otherwise dispose of all or any part of its interest in all or any part of the Borrower's indebtedness under this Agreement (including, without limitation, any interest acquired following any claim payment with respect to any Guaranteed Note) and/or the [FFF] Note and any of its other rights or obligations under this Agreement and/or the [FFF] Note, to any party, and any such party shall enjoy all the rights and privileges of [FFF] under this Agreement and the [FFF] Note. The Borrower shall, at the request of [FFF], execute and deliver to [FFF], or to any party that [FFF] may designate, any such further instruments as may be necessary or desirable to give full force and effect to any such disposition by [FFF].
(d) Notwithstanding anything to the contrary contained herein, the Borrower may not assign or otherwise transfer any of its debts or obligations under this Agreement or any Note without the prior written consent of [FFF] and, in the case of any such assignment or transfer at any time when the Guaranteed Credit is outstanding (but prior to the making of the [FFF] Disbursement) the [FFF] Facility Agent and the Lenders, and may not assign or otherwise transfer any of its debts or obligations under the [FFF] Note without the prior written consent of [FFF].
17.04 Benefit of Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto.
17.05 Termination of [FFF] Guarantee. In the event the [FFF] Guarantee terminates in its entirety pursuant to terms and conditions of the Guarantee Agreement, as of the date of termination, the rights of [FFF] under Section 12 shall automatically be deemed to have been assigned to the Lenders.
17.06 Disclaimer. Neither [FFF], the [FFF] Facility Agent nor any Lender shall be responsible in any way for the performance of any Purchase Contract, and no claim against the Supplier or any other person with respect to the performance of any Purchase Contract will affect the obligations of the Borrower under any of the Financing Documents.
17.07 No Waiver; Remedies Cumulative. No failure or delay on the part of the [FFF] Facility Agent, any Lender or [FFF] in exercising any right, power or privilege under this Agreement, any Note or any Financing Document and no course of dealing between or among the Borrower, the [FFF] Facility Agent, the Lenders and/or [FFF] shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any Note or any Financing Document preclude any other right, power or privilege hereunder or thereunder. The rights and remedies expressly provided herein are cumulative and not exclusive of any rights or remedies that the [FFF] Facility Agent, any Lender or [FFF] would otherwise have. No notice to or demand on the Borrower in any case shall entitle the Borrower, as the case may be, to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the [FFF] Facility Agent, any Lender or [FFF] to any other or further action in any circumstances without notice or demand.
17.08 Entire Agreement. This Agreement, the Guarantee Agreement, the Common Agreement and the other Financing Documents contain the entire agreement among the parties hereto regarding the Credits.
17.09 Amendment or Waiver. (a) Except as otherwise expressly provided in this Agreement, any provision of this Agreement pertaining to the Guaranteed Credit may be amended or modified, and any waiver of any term or provision hereof may be granted, only by an instrument signed by the Borrower, [FFF] and, provided no claim has been made under the [FFF] Guarantee or the [FFF] Disbursement has not been made, the [FFF] Facility Agent (acting at the direction of the Majority [FFF] Lenders); provided that if the [FFF] Disbursement has not been made, no amendment, modification or waiver shall, unless by an instrument also signed by all of the Lenders or by the [FFF] Facility Agent acting with the consent of all of the Lenders: (i) extend the date fixed for the payment of principal of or interest on the Guaranteed Credit, (ii) reduce the amount of any payment of principal of the Guaranteed Credit or the rate at which interest is payable thereon or any fee is payable hereunder, (iii) alter the terms of Section 4.04 or this Section 17.09(a) or (iv) amend the definition of the term "Applicable Rate", "Event of Default", "Lenders" or "Majority [FFF] Lenders"; and provided further, that any amendment of Section 9, or that increases the obligations of the [FFF] Facility Agent hereunder or under any Transaction Document, shall require the consent of [FFF] and the [FFF] Facility Agent.
(b) Any provision of this Agreement pertaining to the [FFF] Credit may be amended or modified, and any waiver of any term or provision hereof may be granted, only by an instrument signed by the Borrower and [FFF].
17.10 Counterparts. This Agreement may be signed in separate counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
17.11 Judgment Currency. All payments of principal, interest, fees or other amounts due hereunder and under any Note or any other Financing Document shall be made in Dollars, regardless of any law, rule, regulation or statute, whether now or hereafter in existence or in effect in any jurisdiction, which affects or purports to affect such obligations. The obligation of the Borrower in respect of any amount due under this Agreement, any Note or any other Financing Document, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), shall be discharged only to the extent of the amount in Dollars that the Person entitled to receive that payment may, in accordance with normal banking procedures, purchase with the sum paid in that other currency (after any premium and costs of exchange) on the Business Day (as defined in the Common Agreement) immediately succeeding the day on which that Person receives that payment. If the amount in Dollars that may be so purchased for any reason falls short of the amount originally due, the Borrower shall pay such additional amounts, in Dollars, to compensate for the shortfall. Any obligation of the Borrower not discharged by that payment shall be continue to be due as a separate and independent obligation and shall accrue interest in accordance with Section 4.02 or 10.02, as applicable, until discharged as provided herein.
17.12 English Language. All documents to be delivered by any party hereto pursuant to the terms hereof shall be in the English language or, if originally written in another language, shall be accompanied by an accurate English translation upon which the other parties hereto shall have the right to rely for all purposes under this Agreement and any Note.
17.13 Severability. To the extent permitted by Applicable Law, the illegality or unenforceability of any provision of this Agreement shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement.
17.14 No Proceedings. Each of the Borrower, the Alternate Lender, the [FFF] Facility Agent and [FFF] each hereby agrees that it will not institute against, or join any other person in instituting against, the Primary Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or any other proceeding under any federal or state bankruptcy or similar law, so long as any commercial paper issued by the Primary Lender shall be outstanding or there shall not have elapsed one year plus one day since the last day on which any such commercial paper shall have been outstanding.
17.15 Indemnification. Without limiting any other rights that the Lenders, the [FFF] Facility Agent, the Administrative Agent or [FFF] may have hereunder or under Applicable Law, the Borrower agrees to indemnify the Primary Lender, the Alternate Lender, the [FFF] Facility Agent (but without duplication of any amounts paid in accordance with Section 7.05), the Administrative Agent and [FFF] and each of their affiliates and each of their respective officers, directors, employees, agents, advisors and representatives (each, an "Indemnified Party") from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from the gross negligence or willful misconduct on the part of the Primary Lender, the Alternate Lender, the [FFF] Facility Agent , the Administrative Agent or [FFF], as the case may be. With respect to any Indemnified Amounts incurred by the [FFF] Facility Agent pursuant to Section 7.02(c), the [FFF] Facility Agent shall provide written notice to the Borrower of the amount of any such Indemnified Amounts by no later than thirty (30) Business Days prior to the date requested by the [FFF] Facility Agent for payment of such Indemnified Amounts by the Borrower. To the extent not inconsistent with, and in all cases not in duplication of, the foregoing, the Borrower agrees to indemnify each of [FFF], the [FFF] Facility Agent and the Lenders as provided in Section 11.3 of the Common Agreement, the terms of which are incorporated by reference herein as if fully set forth herein.
17.16 Captions. The table of contents and captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.
17.17 Waiver of Jury Trial. FOR THE PURPOSES OF THIS AGREEMENT AND EACH OTHER BORROWER DOCUMENT, EACH OF THE BORROWER, THE [FFF] FACILITY AGENT, THE LENDERS, THE ADMINISTRATIVE AGENT AND [FFF] HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER BORROWER DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OR OMISSIONS OF ANY PARTY HERETO, OR ANY OTHER PERSON, RELATING TO THIS AGREEMENT OR ANY OTHER BORROWER DOCUMENT.
17.18 [FFF] as Subrogee. Each of the parties hereto agrees that upon payment of any amounts by [FFF] under the [FFF] Guarantee, [FFF] shall be subrogated (by way of an assignment, by operation of law or otherwise) to all of the rights of the Lenders under the Transaction Documents or otherwise to the extent set forth in the [FFF] Guarantee and in this Agreement, and all payments by the Borrower hereunder shall to that extent thereafter be made directly to [FFF] (and not to the [FFF] Facility Agent).
17.19 Financing Documents. Each of the [FFF] Facility Agent and the Lenders acknowledges receipt of a copy of the Financing Documents and consents to the terms and conditions thereof.
17.20 Limitation on Recourse. Section 11.2 of the Common Agreement is incorporated by reference herein, mutatis mutandis, as if fully set forth herein.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly executed and delivered as of the date hereof on the signature pages of the Omnibus Agreement, of which this Agreement constitutes Volume 4.
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