INTERCREDITOR AGREEMENT, 영문계약서, 대주간 약정서

 

 

INTERCREDITOR AGREEMENT

 

among

 

[AAA BANK],

 

[THE FINANCIAL INSTITUTIONS]

 

listed as Co-Financing Lenders herein

 

and

 

[BBB BANK]

 

as AAA Facility Agent

 

dated as of [•], 20[•]

 

 

INTERCREDITOR AGREEMENT

 

This AAA FACILITY INTERCREDITOR AGREEMENT (this “Agreement”) is dated as of [•], 20[•], among [AAA BANK], a governmental financial institution of [Name of the Country] (“AAA”), each financial institution listed on the signature pages hereof as a Co-Financing Lender (each such financial institution a “Co-Financing Lender” and, collectively, the “Co-Financing Lenders”, and, together with [AAA], the “[AAA] Lenders”), [BBB BANK]. (“BBB”) as agent for [AAA] and the Co-Financing Lenders (in such capacity, together with its successors in such capacity, the “[AAA] Facility Agent”).

 

RECITALS

 

1.          Concurrently herewith, [AAA], the Co-Financing Lenders, the [AAA] Facility Agent and [CCC CORPORATION], a company organized and existing under the laws of [Name of the Country] (the “Borrower”) are entering into a senior credit agreement which appears as Volume 3 of the Omnibus Agreement dated as of the date hereof (the “[AAA] Loan Agreement”), under which [AAA] as the lender under Tranche A will extend loans to the Borrower in an amount not exceeding $ [•] and the Co-Financing Lenders as lenders under Tranche B will extend loans to the Borrower in an amount not exceeding $ [•]

 

2.          The parties hereto wish to specify, among other things, certain procedures for the administration of the [AAA] Facility Loans.

 

NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereto agree as follows:

 

SECTION 1

DEFINITIONS AND INTERPRETATION

 

1.01      Definitions. 

Except as otherwise expressly provided herein, capitalized terms used in this Agreement (including the recitals) shall have the meanings given to those terms in the [AAA] Loan Agreement (or incorporated therein by reference from Exhibit A to the Common Agreement) or, if not defined therein, in the Common Agreement, and, in addition, the following terms shall have the following meanings:

“Agreement” has the meaning given to that term in the caption of this Agreement;

“Borrower” has the meaning given to that term in paragraph 1 of the recitals to this Agreement;

“[BBB]” has the meaning given to that term in the caption of this Agreement;

“Co-Financing Lender” has the meaning given to that term in the caption of this Agreement;

“Common Agreement” means that certain Common Agreement among the Borrower, the Agents party thereto and the other financial institutions from time to time party thereto which appears as Volume 2 to the Omnibus Agreement dated as of the date hereof;

“Conditions Precedent Documents” means all agreements, certificates, notices and instruments and other documents contemplated to be delivered by the Borrower or any Person pursuant to Sections 4.1 and 4.2 of the Common Agreement and (without duplication) Sections 11.1 and 11.2 of the [AAA] Loan Agreement;

“Drawstop Conditions” means those conditions specified in Section 2.6.3(a) of the Common Agreement;

“Decision Period” has the meaning given to that term in the Intercreditor Agreement;

“[AAA] Facility Agent” has the meaning given to that term in the caption of this Agreement;

“[AAA] Loan Agreement” has the meaning given to that term in paragraph 1 of the recitals of this Agreement;

“[AAA] Lenders” has the meaning given to that term in the caption of this Agreement;

“Majority Co-Financing Lenders” means at any time: (a) prior to and including the last day of the Availability Period (as determined in accordance with clause (a) of the definition thereof), Co-Financing Lenders who hold at least [•]% of the sum of (i) the aggregate principal amount of the Tranche B Loan outstanding at such time and (ii) the aggregate remaining Commitments to make advances under Tranche B at such time and (b) after the last day of Availability Period (as determined in accordance with clause (a) of the definition thereof), Co-Financing Lenders who hold at least [•]% of the aggregate principal amount of the Tranche B Loan outstanding at such time;

“Modification” has the meaning given to that term in the Intercreditor Agreement;

“Voting Parties” has the meaning given to that term in the Intercreditor Agreement; and

“Waiver” has the meaning given to that term in the Intercreditor Agreement.

 

1.02      Rules of Interpretation.

The rules of interpretation set out in Exhibit B of the Common Agreement shall apply hereto mutatis mutandis to this Agreement.

 

1.03      Conflict with [AAA] Loan Agreement.

In the case of any conflict between the terms of the [AAA] Loan Agreement and the terms of this Agreement, the terms of this Agreement, as among [AAA], the [AAA] Facility Agent and the Co-Financing Lenders, shall control. It is understood that each of the Intercreditor Agreement and this Agreement provides, under the circumstances set out therein and herein, as the case may be, for the manner in which certain amendments, modifications, changes and waivers, and the exercise of certain rights and remedies, are to be implemented and effected. To the extent any provision of the [AAA] Loan Agreement or the Common Agreement is incorporated or referred to herein or stated herein to be applicable to this Agreement: (a) any such amendment, modification or change to such provision of the [AAA] Loan Agreement or the Common Agreement (as applicable) that is implemented or effected in accordance with each of the Intercreditor Agreement and this Agreement shall implement or effect a comparable change to such provision under this Agreement; (b) any waiver of such provision of the [AAA] Loan Agreement or the Common Agreement (as applicable) that is given in accordance with each of the Intercreditor Agreement and this Agreement shall constitute a comparable waiver of such provision under this Agreement; and (c) any exercise of a right or remedy set out herein shall be subject to the applicable provisions, if any, of the Intercreditor Agreement.

 

SECTION 2

TRANCHE B COMMITMENTS

 

Each of the Co-Financing Lenders agrees, subject to the terms of the Financing Documents, to fund [•] % of each Disbursement of the Tranche B Loan. Each of the Co-Financing Lenders acknowledges and agrees that the amount of its Commitment is as set forth on Schedule 1.

 

SECTION 3

CONDITIONS PRECEDENT

 

3.01      Receipt of Conditions Precedent Documents. 

In connection with each requested Disbursement of the [AAA] Facility Loans (other than IDC Disbursements) under the [AAA] Loan Agreement, the [AAA] Facility Agent shall, promptly upon receipt of any Conditions Precedent Document, forward a copy thereof to each of the [AAA] Lenders.

 

3.02      Review of Initial Disbursement Conditions Precedent Documents. 

(a)     With respect to the Initial Disbursement, the [AAA] Facility Agent shall, promptly upon receipt thereof, review the Condition Precedent Documents to determine whether it believes that all Independent Conditions Precedent to such Disbursement set out in Sections 11.1 and 11.2 of the [AAA] Loan Agreement have been satisfied.  If the [AAA] Facility Agent determines that any applicable Independent Condition Precedent is unsatisfied, the [AAA] Facility Agent shall (i) inform each of the [AAA] Lenders in writing of such determination no later than [•] Lending Business Days prior to the Requested Drawdown Date (and shall include in such notification a statement of its reasons for such determination) and (ii) if instructed to do so by any [AAA] Lender, deliver the Administrative Agent (with a copy to each [AAA] Lender) an Unsatisfied CP Notice in accordance with Section 2.6.1(b) of the Common Agreement.

(b)     If any [AAA] Lender determines that any condition precedent to the Initial Disbursement has not been satisfied, it shall be entitled to deliver to the Administrative Agent (with a  copy to the [AAA] Facility Agent) an Unsatisfied CP Notice in accordance with Section 2.6.1(b) of the Common Agreement.

 

3.03      Satisfaction or Waiver of Initial Disbursement Conditions Precedent. 

(a)     In the event that any Unsatisfied CP Notice is delivered to the Administrative Agent by the [AAA] Facility Agent pursuant to Section 3.02(a) then if, at any time, each of the [AAA] Lenders determines that the relevant condition(s) precedent have been satisfied, the [AAA] Facility Agent shall immediately notify the Administrative Agent of such determination.

(b)     In the event that any Unsatisfied CP Notice is delivered to the Administrative Agent by a [AAA] Lender pursuant to Section 3.02(b) then if, at any time, such [AAA] Lender determines that the relevant condition(s) precedent have been satisfied, such [AAA] Lender shall notify the Administrative Agent of such determination (with a copy to the [AAA] Facility Agent).

(c)     In the event that any Unsatisfied CP Notice delivered to the Administrative          Agent pursuant to Section 3.02 identifies any unsatisfied Independent         Condition(s) Precedent set out in Section 11.1 or 11.2 of the [AAA] Loan Agreement then all of the [AAA] Lenders, acting together, shall be entitled to Waive such Independent Condition(s) Precedent.  If at any time, all of the [AAA] Lenders decide to Waive such Independent Condition(s) Precedent, they shall deliver instructions to the [AAA] Facility Agent to notify the Administrative Agent of such decision to Waive, and the [AAA] Facility Agent shall promptly deliver such notice to the Administrative Agent.

 

3.04      Review of Subsequent Disbursement Conditions Precedent Documents. 

(a)     With respect to each requested Disbursement of the [AAA] Facility Loans (other than the Initial Disbursement and IDC Disbursements), the [AAA] Facility Agent shall, promptly upon receipt thereof, review the Conditions Precedent Documents to determine whether it believes that all Independent Conditions Precedent to such proposed Disbursement set out in Section 11.2 of the [AAA] Loan Agreement have been satisfied. If the [AAA] Facility Agent determines that any applicable Independent Condition Precedent is unsatisfied, the [AAA] Facility Agent shall inform each of the [AAA] Lenders in writing of such determination no later than [•] Lending Business Days prior to the Requested Drawdown Date (and shall include in such notification a statement of its reasons for such determination). 

(b)     Each of the [AAA] Lenders shall contemporaneously with the review undertaken by the [AAA] Facility Agent make its own determination as to whether the applicable conditions precedent to Disbursements of the [AAA] Facility Loans (other than the Initial Disbursement and IDC Disbursements) have been satisfied and, if it shall have determined that any applicable condition precedent is unsatisfied, shall inform the [AAA] Facility Agent of such determination no later than [•] Lending Business Days prior to the Requested Drawdown Date (and shall include in such notification a statement of its reasons therefor).

 

3.05      Disagreement as to Satisfaction of Subsequent Conditions Precedent.

(a)     Consultation.  Following the delivery of any notice pursuant to Section 3.04(a) or 3.04(b), the [AAA] Facility Agent and the [AAA] Lenders shall, prior to the lapse of the period during which, pursuant to Section 2.6.1(b) of the Common Agreement, an Unsatisfied CP Notice may be delivered, consult in good faith with a view to agreeing whether the relevant conditions precedent have been satisfied with respect to such Disbursement. 

Notwithstanding such consultation, [AAA] and the Majority Co-Financing            Lenders shall each be entitled to instruct the [AAA] Facility Agent to deliver to        the Administrative Agent an Unsatisfied CP Notice in accordance with Section 2.6.1(b) of the Common Agreement with respect to the requested Disbursement of the [AAA] Facility Loans under the [AAA] Facilities, and upon receiving such instruction the [AAA] Facility Agent shall promptly deliver such Unsatisfied CP Notice, provided that such instruction is delivered to the [AAA] Facility Agent no later than [Time], [Name of the City] time, on the date [•] Lending Business Days prior to the Requested Drawdown Date.

(b)     Withdrawal of an Unsatisfied CP Notice.  In the event that any Unsatisfied CP Notice is delivered to the Administrative Agent pursuant to Section 3.05(a), the [AAA] Facility Agent shall inform the Administrative Agent in accordance with Section 2.6.1(d)(ii) of the Common Agreement that the relevant conditions precedent have been satisfied if instructed to do so (i) by [AAA], if [AAA] instructed the [AAA] Facility Agent to issue the Unsatisfied CP Notice pursuant to Section 3.05(a), (ii) by the Majority Co-Financing Lenders, if the Majority Co-Financing Lenders instructed the [AAA] Facility Agent to issue the Unsatisfied CP Notice pursuant to Section 3.05(a), or (iii) by [AAA] and the Majority Co-Financing Lenders, if both [AAA] and the Majority Co-Financing Lenders instructed the [AAA] Facility Agent to deliver the Unsatisfied CP Notice pursuant to Section 3.05(a).

 

3.06      Waiver of Unsatisfied Conditions Precedent. 

In the event that any Unsatisfied CP notice delivered to the Administrative Agent pursuant to Section 3.05(a) identifies any Independent Condition(s) Precedent set out in Section 11.2 of the [AAA] Loan Agreement then [AAA] and the Majority Co-Financing Lenders, together, shall be entitled to Waive such Independent Condition(s) Precedent. If at any time, [AAA] and the Majority Co-Financing Lenders decide to Waive such Independent Condition(s) Precedent, they shall deliver instructions to the [AAA] Facility Agent to notify the Administrative Agent of such decision to Waive, and the [AAA] Facility Agent shall promptly deliver such notice to the Administrative Agent.

 

3.07      Drawstop Notices for Initial Disbursement. 

(a)     Issuance of a Drawstop Notice. In the event that the [AAA] Facility Agent or any [AAA] Lender determines that a Drawstop Condition exists with respect to the Initial Disbursement, it shall immediately provide written notice thereof to the Administrative Agent instructing the Administrative Agent to issue a Drawstop Notice in accordance with Section 2.6.3(a) of the Common Agreement and, if such Person is not the [AAA] Facility Agent, with a copy to the [AAA] Facility Agent. If the [AAA] Facility Agent determines that such a Drawstop Condition exists, it shall, to the extent practicable before it issues any such instruction, notify each of the other parties to this Agreement of the issuance of such instruction to the Administrative Agent, and in such notice shall describe the relevant Drawstop Condition.

(b)     Withdrawal of Drawstop Notice.  In the event that any instruction to issue a Drawstop Notice with respect to the Initial Disbursement is issued to the Administrative Agent by the [AAA] Facility Agent or any [AAA] Lender, at such time, if ever, as the Person that delivered such Notice determines that the Drawstop Condition has been satisfied, such Person shall immediately authorize the Administrative Agent (and shall send a copy of such authorization to the [AAA] Facility Agent, if such Person is not the [AAA] Facility Agent) to revoke the Drawstop Notice in accordance with Section 2.6.3(b) of the Common Agreement.

 

3.08      Drawstop Notices for Subsequent Disbursements. 

(a)     Issuance of Drawstop Notice.  With respect to each requested Disbursement of the [AAA] Facility Loans (other than the Initial Disbursement and IDC Disbursements), if [AAA], the Majority Co-Financing Lenders or the [AAA] Facility Agent considers that a Drawstop Condition exists, [AAA] and the Majority Co-Financing Lenders shall each be entitled to instruct the [AAA] Facility Agent, and the [AAA] Facility Agent itself shall be entitled, to instruct the Administrative Agent to issue a Drawstop Notice pursuant to Section 2.6.3(a) of the Common Agreement. The [AAA] Facility Agent shall, to the extent practicable before it issues any such instruction and otherwise promptly after issuing such instruction, notify each of the other parties to this Agreement of the issuance of such instruction, and in such notice shall describe the relevant Drawstop Condition.

(b)     Withdrawal of Drawstop Notice.  In the event that any instruction is issued by the [AAA] Facility Agent to the Administrative Agent pursuant to Section 3.08(a) to issue a Drawstop Notice in accordance with Section 2.6.3(a) of the Common Agreement, the [AAA] Facility Agent shall promptly authorize the Administrative Agent to revoke the Drawstop Notice in accordance with Section 2.6.3(b) of the Common Agreement if instructed to do so (i) by [AAA], if [AAA] instructed the [AAA] Facility Agent to issue such instruction to the Administrative Agent, (ii) by the Majority Co-Financing Lenders, if the Majority Co-Financing Lenders instructed the [AAA] Facility Agent to issue such instruction to the Administrative Agent, or (iii) by [AAA] and the Majority Co-Financing Lenders, if both [AAA] and the Majority Co-Financing Lenders instructed the [AAA] Facility Agent to deliver such instruction to the Administrative Agent or the [AAA] Facility Agent issued such notice on its own accord.

 

3.09      IDC Disbursements.

(a)     In the event that, after receipt of any [AAA] Facility IDC Notice of Borrowing, any [AAA] Lender or the [AAA] Facility Agent shall determine that one or more of the conditions precedent set forth in Section 6.1.1(d) of the [AAA] Loan Agreement is unsatisfied, it shall (i) if a [AAA] Lender makes such determination, notify the [AAA] Facility Agent and (ii) if the [AAA] Facility Agent makes such determination, notify each of the [AAA] Lenders.  Any such notice shall be identified the conditions precedent that has not been satisfied.

(b)     In the event that a notice is delivered pursuant to Section 3.09(a) identifying one or more conditions precedent set forth in Section 6.1.1(d) of the [AAA] Loan Agreement, [AAA] and the Majority Co-Financing Lenders, together, shall be entitled to Waive each such condition precedent.

 

SECTION 4

ADMINISTRATION OF [AAA] LOAN AGREEMENT; ADDITIONAL OBLIGATIONS

 

4.01      Notices and Communications. 

The [AAA] Facility Agent shall forward to each of the [AAA] Lenders, promptly upon receipt, a copy of each notice, report, document, instrument or other information delivered to it pursuant to the Common Agreement, the Intercreditor Agreement or any other Financing Document, including copies of each notice, document, instrument or other information delivered by any [AAA] Lender under this Agreement. Together with the delivery by the [AAA] Facility Agent to the Administrative Agent or any other Person of each notice, document, instrument or other information pursuant to this Agreement or any other Financing Document, the [AAA] Facility Agent shall deliver a copy thereof to each of the [AAA] Lenders, other than such documents that have been delivered directly to [AAA] and the Co-Financing Lenders by the Person from which they were received.

 

4.02      General Consultation. 

Without being limited by Section 5, if the [AAA] Facility Agent or any [AAA] Lender determines that an event, circumstance or condition exists or has occurred which in its judgement could be expected to have a material adverse effect upon the Project, the Borrower, any material Collateral, or the rights of any of the [AAA] Lenders under the [AAA] Loan Agreement or any other Financing Document, or otherwise as and when the [AAA] Facility Agent, [AAA] or the Majority Co-Financing Lenders deem it necessary or advisable, the [AAA] Lenders shall consult with each other with respect to an appropriate course of action.

 

4.03      Communications. 

All communications between [AAA] and the Co-Financing Lenders in connection with this Agreement and the [AAA] Facility Loans shall be conducted through the [AAA] Facility Agent.

 

4.04      Approval of Supply and Construction Contracts. 

The procedures for the approval of the Supply and Construction Contracts pursuant to Section 3 and Annex C of the [AAA] Loan Agreement shall be as follows:

(a)     Upon receipt by [AAA] of an Application for Approval of Supply and Construction Contracts, [AAA] shall deliver a copy thereof to [FFF], and shall direct the [AAA] Facility Agent to instruct [FFF] to present to [AAA] a Notice for Contract on Export-Import and the [AAA] Facility Agent shall promptly issue such instructions.

(b)     [AAA] shall request the [AAA] Facility Agent to present to [AAA] an Application for Participation in Co-Financing, and the [AAA] Facility Agent shall promptly present such Application. When [AAA] receives the Notice for Contract on Export-Import and the Application for Participation in Co-Financing, [AAA] shall determine whether the Supply and Construction Contracts are eligible for financing under the [AAA] Loan Agreement.

(c)     In the event that [AAA] approves the applications pursuant to this Section 4.04, [AAA] shall notify the Borrower of such approval using the form attached as Form 2 to Annex C to the [AAA] Loan Agreement, and shall deliver a copy thereof to [FFF] and the [AAA] Facility Agent.  Together with such notice to the [AAA] Facility Agent, [AAA] shall also deliver to the [AAA] Facility Agent a Notice of Approval of Participation in Co-Financing.

 

4.05      Disbursements of [AAA] Facility Loans. 

Each time that Disbursements of the [AAA] Facility Loans (other than IDC Disbursements) are made, the following procedures shall apply:

(a)     each of the [AAA] Lenders shall transfer funds to be disbursed to the [AAA] Facility Agent, and the [AAA] Facility Agent shall transfer such funds to the Trustee, in accordance with Section 2.6.5 of the Common Agreement; and

(b)    when the funds for each such Disbursement have been transferred to the Trustee, the [AAA] Facility Agent shall present a Disbursement Notice to [AAA].

 

4.06      Determination of Loan Amount. 

Upon the termination of the Availability Period, the [AAA] Facility Agent shall immediately (a) determine the aggregate principal amount of the [AAA] Facility Loans and the aggregate principal amount thereof advanced by each of the [AAA] Lenders and (b) if necessary, revise the Amortization Schedule in accordance with Section 2.8.3 of the Common Agreement.  Promptly after completing the foregoing tasks, the [AAA] Facility Agent shall provide notice to each of the [AAA] Lenders of such aggregate amounts together with a copy of the revised Amortization Schedule, if applicable.  The [AAA] Lenders shall either confirm or provide corrections regarding the amounts of the [AAA] Facility Loans and the Amortization Schedule. Once all of the [AAA] Lenders shall have confirmed the amount of the [AAA] Facility Loans, their portions thereof and the revised Amortization Schedule (if applicable), the [AAA] Facility Agent shall provide to the Borrower of the revised Amortization Schedule (if applicable).

 

4.07      Transfers to the [AAA] Lenders. 

When the [AAA] Facility Agent receives amounts in respect of principal, interest, fees or other amounts payable to any of the [AAA] Lenders under the Financing Documents, the [AAA] Facility Agent shall promptly distribute such amounts to the relevant [AAA] Lenders on the date upon which such amounts were received by the [AAA] Facility Agent.

 

4.08      Insufficient Payments. 

In the event that the amount of any payment received by the [AAA] Facility Agent is less than the total amount due and payable by the Borrower to the [AAA] Lenders as of the date on which such payment is actually received by the [AAA] Facility Agent, the following procedures shall apply:

(a)     the [AAA] Facility Agent shall calculate the amount of such deficiency, shall inform the [AAA] Lenders thereof, and shall deliver a written demand notice therefor to the Borrower;

(b)     the [AAA] Facility Agent shall distribute the amount actually received to the [AAA] Lenders in the order set forth in Section 7.3 of the [AAA] Loan Agreement, provided that the [AAA] Facility Agent shall not agree to a distribution different from the order set forth in said section except with the consent of the Majority Co-Financing Lenders;

(c)     the [AAA] Facility Agent shall calculate and inform the [AAA] Lenders of any interest on overdue amounts;

(d)     each of the [AAA] Lenders (except the [AAA] Lenders that is the [AAA] Facility Agent) shall confirm the amount of interest of which it shall have been informed by the [AAA] Facility Agent pursuant to Section 4.08(c); and

(f)     in the event that the [AAA] Facility Agent receives interest payments on such overdue amounts, the [AAA] Facility Agent shall distribute such amounts to the [AAA] Lenders pursuant to the [AAA] Loan Agreement.

 

4.09      Fractional Amounts. 

In the event that the calculation of each [AAA] Lenders’ pro rata share of the Commitments, any Disbursement or any principal repayment results in an amount that is less than [•] cent ($[•]), then such fractional amount(s) shall be allocated among the [AAA] Lenders as determined by [AAA] and the [AAA] Facility Agent.

 

SECTION 5

VOTING

 

5.01      Procedure. 

In each instance that:

(a)     the [AAA] Facility Agent is required to cast a vote with respect to any consent, waiver, approval, direction or other Modification in accordance with the Intercreditor Agreement; or

(b)     the Co-Financing Lenders are required to vote,

a vote shall be taken among the Co-Financing Lenders within the period of time specified by the [AAA] Facility Agent. The period of time for votes hereunder shall not extend beyond the day that is the earlier of (i) [•] Business Days prior to the expiration of the period of time specified in the notice provided by the Administrative Agent to the [AAA] Facility Agent pursuant to the Intercreditor Agreement, if any and (ii) [•] days prior to the expiration of the period of time during which the [AAA] Facility Agent may convey a notice to the Administrative Agent to effect a result requested therein. The number of votes allocated to each Co-Financing Lender will be calculated (i) prior to and including the last day of the Availability Period (as determined in accordance with clause (a) of the definition thereof), based on the sum of (A) the aggregate principal amount of the Tranche B Loan owed to such Co-Financing Lender and (B) its aggregate remaining Commitment to make advances under Tranche B and (ii) after the last day of the Availability Period, based on the aggregate principal amount of the Tranche B Loan owed to such Co-Financing Lender.

 

5.02      Calculation. 

The percentage of Co-Financing Lenders consenting to, approving, waiving or providing direction with respect to a decision shall be calculated as a fraction, the numerator of which shall be the number of votes cast in favor of the proposed consent, approval, waiver, direction or other action and the denominator of which shall be the total number of votes entitled to be cast with respect to such matter.  In the event any Co-Financing Lender does not cast its votes within the period of time specified by the [AAA] Facility Agent pursuant to Section 5.01, the vote of such Co-Financing Lender shall be excluded from both the numerator and denominator of the fraction described in the preceding sentence. Any Co-Financing Lender that does not cast its vote hereby waives any and all rights it may have to object to or seek relief from the decision of the Co-Financing Lenders voting with respect to such issue and agrees to be bound by such decision.  Nothing contained in this Section 5.02 shall preclude any Co-Financing Lender from participating in any re-voting or further voting relating to such matter.

 

5.03      Block Voting. 

The [AAA] Facility Agent shall cast all of its votes in any Intercreditor Vote as a unanimous block in the manner directed by the Majority Co-Financing Lenders (calculated pursuant to the foregoing Section 5.02) or, in respect of Intercreditor Votes relating to matters described in Exhibit A to the Intercreditor Agreement, all of the Co-Financing Lenders.

 

5.04      Non-Voting Lenders. 

None of (a) any Affiliate of the Borrower or any Shareholder that from time to time holds any Commitment to make any [AAA] Facility Loan or holds any [AAA] Facility Loan, (b) any Affiliate of any Major Project Party or (c) any Co-Financing Lender that has agreed, directly or indirectly, to vote or otherwise act at the direction or subject to the approval or disapproval of any Person identified in the foregoing items (a) or (b) (each a “Non-Voting Lender”) shall be entitled to participate in any vote hereunder, and the [AAA] Facility Agent in determining the percentage of votes cast hereunder shall deem each Non-Voting Lender to have voted proportionately in accordance with the votes of the Co-Financing Lenders entitled to vote.

 

SECTION 6

[AAA] FACILITY AGENT

 

6.01      Indemnity. 

The Co-Financing Lenders shall, from time to time on demand by the [AAA] Facility Agent, indemnify the [AAA] Facility Agent against any and all costs, claims, losses, expenses (including reasonable legal fees and expenses) and liabilities, which the [AAA] Facility Agent may incur in acting in its capacity as [AAA] Facility Agent hereunder, other than by reason of its own gross negligence or willful misconduct.  Without limitation of the foregoing, the [AAA] Co-Financing Lenders shall reimburse the [AAA] Facility Agent promptly upon demand for any out-of-pocket expenses (including reasonable legal fees and expenses) incurred by it in connection with the preparation, execution, administration or enforcement of, or legal advice in respect of rights or responsibilities under, this Agreement or any of the Transaction Documents, to the extent that the [AAA] Facility Agent is not promptly reimbursed for such expenses by the Borrower.  The provisions of this Section 6.01 shall survive the termination of this Agreement and the other Financing Documents.

 

6.02      Resignation and Removal. 

(a)     Resignation.  Subject to Section 6.03, the [AAA] Facility Agent may, with the prior written consent of [AAA], resign its appointment at any time by giving prior written notice to that effect to each of the other parties hereto.

(b)     Removal.  Subject to Section 6.03, either (i) [AAA] or (ii) the Majority Co-Financing Lenders with the prior written consent of [AAA] (which shall not be unreasonably withheld or delayed) may remove the [AAA] Facility Agent from its appointment hereunder with or without cause by giving prior written notice to that effect to the [AAA] Facility Agent.

 

6.03      Successor [AAA] Facility Agent. 

(a)     Conditions to Effectiveness.  No resignation or removal pursuant to Section 6.02 shall be effective until:

(i)  a successor for the resigning or removed [AAA] Facility Agent is appointed in accordance with (and subject to) the provisions of this Section 6.03;

(ii) the resigning or removed [AAA] Facility Agent has transferred to its successor all of its rights and obligations in its capacity as [AAA] Facility Agent under the Financing Documents; and

(iii)  the successor [AAA] Facility Agent has executed and delivered an agreement to be bound by the terms of the Financing Documents and to perform all duties required of the [AAA] Facility Agent thereunder.

(b)     Appointment of Successor.  If the [AAA] Facility Agent has given notice of its resignation pursuant to Section 6.02(a) or if the [AAA] or the Majority Co-Financing Lenders give the [AAA] Facility Agent notice of removal pursuant to Section 6.02(b), then a successor to the [AAA] Facility Agent may be appointed by [AAA] and the Majority Co-Financing Lenders during a [•] day period beginning on the date of such notice.  However, if no such successor is so appointed within such [•] day period, the resigning or removed [AAA] Facility Agent may, with the prior written consent of [AAA], appoint such a successor.

(c)     Succession.  If a successor to the [AAA] Facility Agent is appointed under the provisions of this Section 6.03, then:

(i)  the predecessor [AAA] Facility Agent shall be discharged from any further obligation hereunder (but without prejudice to any accrued liabilities);

(ii) the resignation pursuant to Section 6.02(a) or removal pursuant to Section 6.02(b) of the predecessor of [AAA] Facility Agent notwithstanding, the provisions of this Agreement shall inure to the predecessor [AAA] Facility Agent’s benefit as to any actions taken or omitted to be taken by it under the Financing Documents while it was [AAA] Facility Agent; and

(iii) the successor [AAA] Facility Agent and each of the other parties hereto shall have the same rights and obligations amongst themselves as they would have had if such successor [AAA] Facility Agent had been a party hereto beginning on the date of this Agreement.

 

SECTION 7

GOVERNING LAW, ETC.

 

7.01      Governing Law. 

This Agreement shall for all purposes be governed by and construed in accordance with the laws of [Name of the Country].

 

7.02      Submission to Jurisdiction. 

Any legal action or proceeding brought by a party hereto against another party hereto with respect to this Agreement or any other Financing Document may be brought in (1) the courts [•] (2) the courts of [•] or (3) the courts [•]. By execution and delivery of this Agreement each of the parties irrevocably accepts for itself and in respect of its property, generally and unconditionally, the Jurisdiction of the aforesaid courts. The parties hereto agree that a judgement, after exhaustion of all available appeals, in any such action or proceeding shall be conclusive and binding upon it, and may be enforced in any other jurisdiction, including by a suit upon such judgement a certified copy of which shall be conclusive evidence of the judgement.

 

7.03      Waiver of Jury Trial. 

Each of the parties hereto knowingly, voluntarily and intentionally waives any right it may have to a trial by jury in respect of any action, proceeding or counterclaim based hereon, or arising out of under, or in connection with, this Agreement or the Transactions contemplated hereby, or any course of conduct, course of dealing, statement (whether oral or written), or action of any party hereto. This provision is a material inducement for each of the parties hereto to enter into this Agreement.

 

SECTION 8

MISCELLANEOUS

 

8.01      Notices. 

The provisions of Section 11.5 of the Common Agreement are incorporated by reference herein as if fully set-out herein mutatis mutandis.

 

8.02      Survival. 

This Agreement shall continue to be in force until the Termination Date.

 

8.03      Amendments. 

The terms of this Agreement may only be amended, supplemented or modified by an instrument in writing signed by all of the parties hereto. 

 

8.04      Provisions of Common Agreement. 

The provisions of Sections 11.7, 11.11 and 11.12 of the Common Agreement are incorporated by reference herein as if fully set out herein mutatis mutandis and each reference in such Section to a “Financing Document”, “this Agreement”, “herein”, “hereunder” and like terms shall be deemed to refer to this Agreement.

 

8.05      Reinstatement. 

This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Borrower’s obligations under the [AAA] Loan Agreement relating in any way to the [AAA] Facility Loans or any amounts payable in connection thereunder, or any part thereof, are, pursuant to Applicable Law, rescinded or reduced in amount, or must otherwise be restored or returned by any [AAA] Lender or the [AAA] Facility Agent.

 

8.06      Assignment.

This Agreement shall be binding upon, inure to the benefit of and be enforceable by the respective successors and assigns of each [AAA] Lender and the [AAA] Facility Agent. No party hereto may transfer or assign any of its rights or obligations hereunder, except as expressly provided herein or in connection with an assignment or transfer, in accordance with the terms of the Financing Documents, of all or any part of its Commitment or its interest in Obligations owed to it under the Financing Documents. Any attempted assignment or transfer in contravention of this Section 8.06 shall be null or void.

 

8.07      Counterparts.

This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any party hereto may execute this Agreement by signing any such counterpart.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives as of the date hereof.

 

 

[AAA BANK]

 

By :                         

Name : [•]

Title : [•]

 

 

[BBB BANK]

in its capacity as [AAA] Facility Agent

 

By :                         

Name : [•]

Title : [•]

 

 

[CCC BANK],

as a Co-Financing Lender

 

By :                          

Name : [•]

Title : [•]

 

 

[DDD BANK]

as a Co-Financing Lender

 

By :                          

Name : [•]

Title : [•]

 

 

[EEE BANK]

as a Co-Financing Lender

 

By :                          

Name : [•]

Title : [•]

 

 

 

SCHEDULE 1

to [AAA] Facility

Intercreditor Agreement

 

 

TRANCHE B COMMITMENTS

 

 

 

[CCC BANK]   :            $ [•]

[DDD BANK]  :            $ [•]

[EEE BANK]    :            $ [•]

Total                                $ [•]

 

2_4 Intercreditor Agreement.doc