SHAREHOLDER'S AGREEMENT, 주주계약서, 영문계약서

 

SHAREHOLDER'S AGREEMENT

 

among

 

[AAA CORPORATION],

 

[BBB CORPORATION],

 

[CCC CORPORATION],

 

[DDD CORPORATION],

 

[EEE CORPORATION],

 

[FFF CORPORATION],

 

[GGG CORPORATION],

 

and

 

[HHH CORPORATION]

 

 

Dated as of [•], 20[•]

TABLE OF CONTENTS

Section                                                                                                                      Page

 

ARTICLE I       Definitions; Principles of Construction                                           [2]

ARTICLE II      Purpose of the Company; Voting Agreement; Etc                          [3]

ARTICLE III    Shares, Preemptive Rights and Budgets                                         [4]

ARTICLE IV    Governance                                                                                   [10]

ARTICLE V      Financing Plan, Contributions, Fees and Expenses                        [23]

ARTICLE VI      Transactions with Shareholders or Affiliates;

Dividends and Distributions                                                         [41]

ARTICLE VII  Accounting                                                                                    [43]

ARTICLE VIII  Indemnification                                                                           [45]

ARTICLE IX    Transfers                                                                                         [46]

ARTICLE X      Default                                                                                           [54]

ARTICLE XI    Termination                                                                                    [58]

ARTICLE XII   Representations and Warranties                                                      [59]

ARTICLE XIII  Applicable Law; Dispute Resolution                                             [61]

ARTICLE XIV  Miscellaneous Provisions                                                               [63]

ARTICLE XV   Guarantee                                                                                    [73]

 

SCHEDULES AND EXHIBITS

 

Schedule I         Definitions

Schedule II        Acts and Actions Requiring Special Board Majority Approval

Schedule III      Acts and Actions Requiring Special Shareholder Majority Approval

Schedule IV      Acts and Actions Requiring Shareholder Simple Majority Approval

Schedule V        Base Equity Commitments, Contingency Base Equity Commitments and Cost Overruns Equity Commitments

 

EXHIBITS

 

Exhibit A           Articles of Incorporation of the Company

Exhibit B           Amended and Restated By-laws of the Company

Exhibit C           Project Budget

Exhibit D           Maintenance Budget

Exhibit E           Shareholder Subordinated Note

SHAREHOLDERS' AGREEMENT

 

SHAREHOLDERS' AGREEMENT, dated as of [•], 20[•], among [AAA], a corporation organized and existing under the laws of [Name of the Country] ("[AAA]"), [BBB], a corporation organized and existing under the laws of [Name of  the Country] ("[BBB]"), [CCC], a corporation organized and existing under the laws of [Name of  the country] ("[CCC]", and, together with [AAA] and [BBB], the "Shareholders"), [DDD], a corporation organized and existing under the laws of [Name of  the country] ("[DDD]"), [EEE], a corporation organized and existing under the laws of [Name of  the Country]("[EEE]"),  [FFF], a corporation organized and existing under the laws of [Name of the Country] (including its permitted assignees or successors in interest, "[FFF]"), [GGG], a corporation organized and existing under [Name of the Country]("[GGG]"; [DDD], [EEE], [FFF] and [GGG] are each hereinafter referred to as a "Sponsor" and collectively as the "Sponsors") and [HHH], a corporation organized and existing under the laws of [Name of the Country] (the "Company"; the Shareholders, the Sponsors and the Company are each hereinafter referred to as a "Party" and collectively as the "Parties").

 

WHEREAS, the Company was established for the purpose of developing, constructing, owning and operating a [•] MW natural gas fired combined cycle power plant with diesel fuel fired capability at [Adress] (together with all ancillary equipment or facilities, the "Project");

 

WHEREAS, in furtherance of the Company's obligations with respect to the Project, the Company, [Name of the Bank], [Name of the Bank ], The Export-Import Bank of Korea, and certain other financial institutions to be named therein, intend to enter into the Common Agreement (the "Common Agreement") setting forth, among other things, certain terms and conditions applicable to the financing of the Project;

 

WHEREAS, [DDD] directly and through its Affiliates has (i) advanced certain funds to the Company, made payments of certain costs to third parties on behalf of the Company and arranged certain financing for the Company prior to the date hereof and (ii) paid in to the Company in exchange for [•] Common Shares a capital contribution amount equal to US$[•];

 

WHEREAS, [EEE] through [BBB] has advanced to the Company US$ [•] to fund Project Costs prior to the date hereof as evidenced by certain promissory notes issued by the Company

 

WHEREAS, [DDD], [EEE], [GGG] and [FFF] entered into a Subscription Agreement, dated as of [•],20[•] (the "Subscription Agreement"), pursuant to which [EEE] and [FFF] will cause [BBB], [GGG] will cause [CCC], and [DDD] will cause [AAA], to subscribe for Common Shares, subject to the terms and conditions set forth therein;

 

WHEREAS, the Parties have agreed to enter into this Agreement for the purpose of recording their mutual agreement concerning the Project and the management of the Company, including their mutual rights and obligations with respect thereto;

 

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and conditions contained herein, the Parties agree as follows:

 

ARTICLE I

DEFINITIONS; PRINCIPLES OF CONSTRUCTION

 

SECTION 1.01 Definitions.

 

As used in this Agreement, the terms set forth in Schedule I attached hereto shall have the meanings assigned to them in such Schedule.

 

SECTION 1.02 Principles of Construction.

 

Unless the context of this Agreement otherwise requires:

 

(a)         a reference to any Person in any capacity includes a reference to its permitted successors and assigns in such capacity and, in the case of any governmental entity, any Person succeeding to its functions and capacities;

 

(b)         references to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted; and

 

(c)         references to any agreement or document (including this Agreement) shall be construed as a reference to such agreement or document as amended, modified or supplemented and in effect from time to time, and shall include a reference to any document which amends, modifies or supplements it, or which is entered into, made or given pursuant to or in accordance with its terms.

 

ARTICLE II

PURPOSE OF THE COMPANY; VOTING AGREEMENT; ETC.

 

SECTION 2.01 Purpose and Business of the Company.

 

The Company was established for the purpose of developing, constructing, owning, financing, holding, managing and operating the Project.  The business of the Company shall be limited to engaging in such activities, any other activity approved by the Shareholders in accordance with the terms of this Agreement, the Articles and the By-laws and any other act or activity in furtherance of or related to such purpose that is not prohibited by law.  The name of the Company on the date hereof is "[HHH]". The Shareholders agree to consider changing the name of the Company at an appropriate time if necessary.

 

SECTION 2.02 Shareholder Covenant.

 

Each of the Shareholders agrees that it shall vote or cause to be voted the Common Shares it owns or controls to cause the Articles and By-Laws to be amended in accordance with the form attached hereto as Exhibit A and Exhibit B, respectively.  Each of the Shareholders agrees that, to the extent that any provision of this Agreement conflicts with or is at variance with the Articles or the By-laws, this Agreement shall prevail and be the binding document between the Parties.  Each of the Shareholders also covenants and agrees that:

 

(a)         it shall vote or cause to be voted the Common Shares it owns or controls to accomplish and give effect to the terms and conditions of this Agreement; and

 

(b)         in the event of any conflict between the provisions of this Agreement and the Articles or the By-laws, it shall vote or cause to be voted the Common Shares it owns or controls as provided in this Agreement and cause the Articles or the By-laws, as the case may be, to be amended to resolve any such conflict in favor of the provisions of this Agreement.

 

 

SECTION 2.03 Offices.

 

The registered and principal offices of the Company shall be at [Adress] or such other place or places as the Board may from time to time determine in accordance with law.  The Board shall direct the Secretary to deliver written notice of any change in such offices to each Shareholder.

 

SECTION 2.04 Cooperation Regarding Expansion; Other Business Interests.

 

No Shareholder shall have any obligation to any of the other Shareholders or to the Company under this Agreement with respect to any investment in or acquisition, construction or development of any other power project or extensions thereof in [Name of the Country] or elsewhere, other than as mandatory Applicable Law shall require; provided, that with respect to any power project which is an extension of and is within or contiguous to the Site, the Shareholders agree to cooperate in good faith to co-participate in such project and to afford each Shareholder the opportunity to participate in such project prior to soliciting any Person other than a Shareholder to participate in such project. Except for the foregoing and as otherwise expressly provided in this Agreement, the Project Documents, the Financing Documents or the Organizational Documents, nothing shall be deemed to preclude any Shareholder or any of its Subsidiaries or Affiliates or other related entities from independently engaging in and receiving full benefits from any other business activity, without first consulting any of the other Shareholders and without sharing such benefits with such other Shareholders. 

 

ARTICLE III

SHARES, PREEMPTIVE RIGHTS AND BUDGETS

 

SECTION 3.01 Capital Stock. 

 

(a)         As of the Effective Date, the authorized capital stock of the Company as further described in the Articles consists of a class of [•] shares of common stock with a par value of [•] (the "Common Shares")

 

(b)         As of the Effective Date: (i) [AAA] will own [•] fully paid Common Shares constituting [•] % of the total issued and outstanding Common Shares of the Company, (ii) [BBB] will own [•] fully paid Common Shares, constituting [•] % of the total issued, and outstanding Common Shares of the Company, and (iii) [CCC] will own [•] fully paid Common Shares constituting [•] % of the total issued and outstanding Common Shares of the Company.

 

(c)         All Common Shares of the Company shall be identical and shall entitle the holder thereof to the same rights and privileges.  Each Common Share shall entitle the holder thereof to one vote on all matters upon which the holders of the Common Shares are entitled to vote.

 

(d)         Prior to the ECA Completion Date, each of the Shareholders shall cause the Company to amend the Organizational Documents and take all other action required to authorize Series A preferred shares of par value ([•]) [Currency] (the "Series A Preferred Shares").  The Shareholders shall cause the Company to convert additional paid in capital on Common Shares to Capital Stock including Common Shares and/or Series A Preferred Shares in such proportion and at such and at such price as the Shareholders shall determine by declaring a stock dividend on or after the ECA Completion Date but in any event prior to the Completion Date.  The Series A Preferred Shares will be non-voting shares and shall be redeemable from time to time upon a vote of the Board subject to the provisions of the Financing Documents and Section 6.03, and shall rank senior in right of payment upon voluntary liquidation, winding up and/or dissolution to Common Shares and junior in right of payment to Series C Preferred Shares and Series B Preferred Shares.    The holders of the Series A Preferred Shares will not be entitled to dividends, and the right of each such holder to receive distributions shall be junior and subordinated in right of payment to the senior rights of payment of the holders of Series C Preferred Shares and Series B Preferred Shares upon their establishment.  There will be no sinking fund for redemption and, if redeemed, the Series A Preferred Shares so redeemed will either be retained as treasury shares, subject to their being reissued by the Company or cancelled, in each case as the Board shall determine.  The holders of the Series A Preferred Shares will be entitled to have their Series A Preferred Shares redeemed, on a basis proportionate to their respective percentage ownership of the then issued and outstanding Series A Preferred Shares, when and as the Board determines, directs and authorizes a full or partial redemption of the outstanding Series A Preferred Shares, at a redemption price per Series A Preferred Share determined by the Board. 

 

(e)         Prior to the ECA Completion Date, each of the Shareholders shall cause the Company to:  (i) amend the Organizational Documents and take all other action required to provide for the issuance of [•] ([•]) Series B cumulative preferred shares of par value [•] ([•]) [Currency] (the "Series B Preferred Shares"); and (ii) issue [•] ([•]) Series B Preferred Shares to [BBB] and [•] ([•]) Series B Preferred Shares to [CCC], in each case upon payment of an issue price of one ([•]) [Currency] per share.  [AAA] on behalf of itself and any of its director nominees on the Board hereby waives all of its pre-emptive rights under applicable law to subscribe to any portion of the Series B Preferred Shares.  The Series B Preferred Shares will be non-voting shares and non-redeemable and shall rank senior in right of payment upon voluntary liquidation, winding up and/or dissolution to Series A Preferred Shares and Common Shares and junior in right of payment to Series C Preferred Shares.  The holders of the Series B Preferred Shares shall have a priority to receive dividends out of distributable cash as further set forth in Section 5.15 ahead of any payments or distributions made in respect of Series A Preferred Shares or Common Shares. 

 

(f)         If at any time the Board shall determine that in order to comply with Applicable Law or the Financing Documents it is necessary to convert all or any portion of the Subordinated Shareholder Loans into Capital Stock of the Company, the Shareholders agree to vote their Common Shares and take all other actions necessary to amend the Organizational Documents to authorize Series C preferred shares of par value ([•]) [Currency] (the "Series C Preferred Shares").  The Series C Preferred Shares will be non-voting shares and shall be redeemable from time to time upon a vote of the Board subject to the provisions of the Financing Documents and Section 6.03, and shall rank senior in right of payment upon voluntary liquidation, winding up and/or dissolution to all other Capital Stock of the Company; provided, that the redemption price and other terms of the Series C Preferred Shares shall be such that the Series C Preferred Shares shall yield the equivalent economic return to the holders thereof as such holder would have received in their capacity as a holder of the Subordinated Shareholder Loans which are converted into such Series C Preferred Shares; provided, further, that promptly after any determination that any such conversion is necessary, each Shareholder shall take all actions necessary to become, to the extent necessary, the holder of the Subordinated Shareholder Loans held by its Sponsor Affiliate or any Affiliate of its Sponsor Affiliate, as the case may be.  The holders of the Series C Preferred Shares will not be entitled to dividends.  There will be no sinking fund for redemption and, if redeemed, the Series C Preferred Shares so redeemed will either be retained as treasury shares, subject to their being reissued by the Company or cancelled, in each case as the Board shall determine.

 

(g)         Each of the Shareholders agrees to waive its voting rights arising out of Section 6 of the Corporation Code of [Name of the Country] ([•]) with respect to any Series A Preferred Shares, Series B Preferred Shares and Series C Preferred Shares it may own from time to time.  The Shareholders agree that in connection with the initial issuance of any Series B Preferred Shares or Series C Preferred Shares, as the case may be, they shall vote their Shares and take all other actions necessary to amend the Articles to include the waiver of its voting rights as specified in this Section 3.01(g).

 

(h)         Subject to Section 9.12, all Project Costs incurred by the Company after the Effective Date and prior to the date of the Initial Disbursement shall be funded:  (i) first, by [BBB] and [CCC] in the form of Shareholder advances on a pro rata basis based on each such Shareholder's Share Ratio in proportion to the aggregate Share Ratios of such Shareholders up to an amount that, when aggregated together with the aggregate issue value of Common Shares and Shareholder advances held and remitted by each such Shareholder, shall not exceed each such Shareholder's Base Equity Commitment; (ii) second, by the proceeds of disbursements under the Bridge Loan Agreement, and (iii) third, by [AAA] in the form of Shareholder advances.  The Affiliate Sponsors of [BBB], [CCC] and [AAA], severally but not jointly, agree to cause [BBB], [CCC] and [AAA], respectively, to perform their obligations under this Section 3.01(h); provided that (1) [EEE]'s liability under this Section 3.01(h) shall be limited to a maximum amount equal to the [EEE]/[BBB] Base Equity Limit, and (2) [FFF]'s liability under this Section 3.01(h) shall be limited to a maximum amount equal to the [FFF]/[BBB] Base Equity Limit.  The Shareholders agree, and each Sponsor agrees to cause its respective Affiliate Shareholder, to cause the Company on the date of the Initial Disbursement to pay to [AAA] (or to [DDD] upon instruction of [DDD]) a fee in consideration of [DDD]’s guarantee of the Bridge Loan Agreement equal to an amount in Dollars equal to [•] % per annum of the aggregate principal amount of the advances outstanding from time to time under the Bridge Loan Agreement.  The amount of such fee payable to [AAA] (or [DDD], as the case may be) shall be determined in the same manner as interest is calculated with respect to the advances under the Bridge Loan Agreement.

 

(i)          The Shareholders agree, and each Sponsor agrees to cause its respective Affiliate Shareholder, on the date of the Initial Disbursement to: (i) assign a portion of the outstanding Shareholder advances to the Company and to cause the Company to record such as additional paid in capital on a pro rata basis in accordance with their respective Share Ratios with an aggregate value that, when aggregated together with the issue value of all Capital Stock issued and outstanding prior to such date, equals [•] % of the Project Costs as reflected in the Notice of Borrowing submitted by the Company in connection with the Initial Disbursement; and (ii) subject to the  requirements of the Financing Documents, to cause the Company to reimburse each Shareholder, from the proceeds of Senior Loans and [DDD] Replacement Loans disbursed on such date, an amount in Dollars equal to that portion of its outstanding Shareholder advances on such date which has not been converted to Capital Stock or assigned to the Company prior to and including such date.

 

(j)          Notwithstanding the foregoing and except as otherwise expressly provided in Article V or the Financing Documents, no Shareholder shall have any obligation to subscribe for Common Shares or Series A Preferred Shares or make Subordinated Shareholder Loans or provide additional financial support to the Company or the Project in an aggregate amount in excess of the aggregate Contribution Commitment of such Shareholder.

 

SECTION 3.02 Preemptive Rights.

 

On each increase in the Capital Stock of the Company, each Shareholder shall have the right to subscribe for a percentage of the number of Common Shares and Series A Preferred Shares to be issued as shall correspond to such Shareholder's Share Ratio. 

 

SECTION 3.03 Budgets. 

 

(a)       Project Budget.  The Shareholders agree to cause the Board to approve the estimated development costs and expenses of the Project as set forth in the initial Project Budget attached hereto as Exhibit C.  The Chairman of the Board may from time to time prepare and distribute, or cause to be prepared and distributed to the Board a revised Project Budget.  The Board shall consider and vote upon such proposed revised Project Budget within [•] days after receipt thereof.  Until any revised Project Budget is approved by the Board, the approved Project Budget then in effect prior to such proposed revision shall remain in effect.

 

(b)         O&M Budget and Operating Plan.  The Shareholders agree to cause the Board to approve the initial O&M Budget and Operating Plan (which shall include an organization and staffing plan of the Company). Thereafter, on or before [•] days prior to the end of each Contract Year, the Chairman of the Board shall prepare and distribute or cause to be prepared and distributed to the Board the proposed O&M Budget and Operating Plan (which shall include an organization and staffing plan of the Company) for the upcoming Contract Year.  The Board shall consider and vote upon such proposed O&M Budget and Operating Plan within [•] days after receipt thereof.

 

(c)         Failure to Approve O&M Budget and Operating Plan.  In the event that all or any part of the O&M Budget and Operating Plan (which shall include an organization and staffing plan of the Company) proposed for any Contract Year is not approved by the Board, the Shareholders shall submit those aspects of the proposed O&M Budget and Operating Plan that are not approved by the Board on or prior to the date [•] days prior to the commencement of such Contract Year to the O&M Expert to make a recommendation in a manner that addresses the best commercial interests of the Company. Subject to the requirements of the Financing Documents, the Shareholders agree to vote their Common Shares and take all other actions necessary to cause the Company to implement the recommendation of the O&M Expert.  Subject to the requirements of the Financing Documents, until a new O&M Budget and Operating Plan is approved for a particular Contract Year either by the Board or as set forth above, the O&M Budget and Operating Plan for the Company shall consist of those aspects of the proposed O&M Budget and Operating Plan approved by the Board together with the relevant parts of the prior Contract Year's O&M Budget and Operating Plan adjusted in accordance with the following sentence.  With respect to the aspects of the proposed O&M Budget and Operating Plan that are not approved by the Board, the O&M Budget and Operating Plan shall be deemed to incorporate the corresponding parts of the O&M Budget and Operating Plan for the prior Contract Year, with the portion thereof denominated in Dollars being adjusted by multiplying such amount in Dollars by a factor equal to (i) the arithmetic average of the values of the U.S. Producer'’s Price Index (excluding Agricultural Products) and the U.S. Consumer Price Index, both as last published in the International Financial Statistics (or failing such, in another publication) published by the International Monetary Fund on or before the date of calculating such adjustment, divided by (ii) the arithmetic average of the values of the U.S. Producer’s Price Index (excluding Agricultural Products) and the U.S. Consumer Price Index, both as last published in the International Financial Statistics (or failing such, in another publication) published by the International Monetary Fund on or before the date of the last O&M Budget and Operating Plan and the portion thereof denominated in [Currency]being adjusted by multiplying such amount in [Currency]by a factor equal to ( A) the average of the values of (1) [•] % of the value of the Consumer Price for [Name of the Country] and (2) [•] % of the General Wholesale Price Index in [Name of the City] for mineral fuels, lubricants and related materials, in each case, as last published by the National Statistical Coordination Board on or before the date of calculating such adjustment, divided by (B) the average of the values of (1) [•] % of the value of the Consumer Price Index for [Name of the Country] and (2) [•] % of the General Wholesale Price Index in [Name of the City] for mineral fuels, lubricants and related materials, in each case, as last published by the National Statistical Coordination Board on or before the date of the last O&M Budget and Operating Plan.

 

ARTICLE IV

GOVERNANCE

 

SECTION 4.01 Shareholder Meeting. 

 

(a)       Except as required by law or otherwise unanimously agreed to by all of the Directors, at least [•] Business Days' prior written notice of any meeting of the Shareholders shall be given by the Secretary together with an agenda for such meeting, and the Shareholders shall only have the authority to approve, authorize or take action with respect to matters included in such agenda for a particular meeting.

 

(b)         Subject to the Articles, no action may be taken at any meeting of the Shareholders unless the Shareholders shall have constituted a quorum consisting of:  (i) the representatives of Shareholders, holding at least [•] % of the total issued and outstanding Common Shares; (ii) at least one representative of [BBB]; and (iii) (for so long as [CCC] owns not less than [•] % of the total issued and outstanding Common Shares and the meeting's agenda provides that the Shareholders' will consider for approval any of items (i), or (xvi) of Schedule III) one representative of [CCC]; provided that, if the Shareholders fail to achieve a quorum at such meeting within [•] hour of the time on the date designated in the notice thereof, then the same shall stand adjourned and be reconvened on the day which is [•] Business Days from the date appointed for such meeting at the same time and place and (x) a quorum requirement consisting of the representatives of Shareholders holding at least [•] percent of the total issued and outstanding Common Shares shall apply to validly convene such meeting, and (y) if any Shareholder whose vote is required pursuant to Section 4.08(b) to approve any matter set forth in Schedule III that was on the agenda for such meeting is not present at such reconvened meeting, such matter shall be deemed to have failed to be approved at two successive meetings of the Shareholders for purposes of Section 4.12.

 

(c)         The Shareholders' authority to act shall be limited to those matters specifically reserved for shareholder approval as set forth in Schedules III and IV attached hereto.

 

(d)         Meetings of the Shareholders shall be presided over by the Chairman or, in his absence, the President, or if none of the foregoing is in office and present and acting, by a chairman to be chosen by the Shareholders.  The Secretary shall act as secretary of every meeting, but if not present, the Chairman of the meeting shall appoint a secretary of the meeting.  The Chairman shall cause written minutes of all actions taken to be prepared and delivered to each Shareholder.

 

SECTION 4.02 Board of Directors. 

 

(a)       Management.  The corporate powers of the Company shall be exercised, its business shall be conducted and its assets shall be managed by the Board.  The Board shall have the authority to decide all matters related to the Company other than the minimum matters specifically reserved for shareholder approval as set forth in Schedules III and IV attached hereto.   Notwithstanding any other provision hereof, prior to the First Adoption Date, the provisions of Sections 4.01(b), 4.03 and 4.08 hereof shall not apply and (1) any action of the Company with respect to the matters set forth in Schedule II shall require the prior written consent of [BBB], (2) any action of the Company with respect to items (ii) or (xxii) of Schedule II shall require the prior written consent of [CCC], (3) any action of the Company with respect to the matters set forth in Schedule III shall require the prior written consent of [BBB], (4) any action of the Company with respect to the items (i) or (xvi) of Schedule III shall require the prior written consent of [CCC], and (5) any action with respect to the matters set forth in Schedule IV shall require the prior written consent of [BBB].   

 

(b)       Initial Board Composition.  On the First Adoption Date and until such time as a Transfer occurs that requires the recomposition of the Board pursuant to clause (c) below, the Board shall consist of [•] Directors, and each of the Shareholders shall have the right to nominate such Directors as follows:

 

(i)          [•] Directors nominated by [AAA];

 

(ii)       [•] Directors nominated by [BBB] (two of which shall be identified as having been nominated by [BBB] on behalf of [EEE] and the other two shall be identified as having been nominated by [BBB] on behalf of [FFF]); and

 

(iii)       [•] Directors nominated by [CCC].

 

The Shareholders agree to vote their Common Shares to elect the Directors in accordance with such nominations of the Shareholders.

 

(c)         Subsequent Board Composition.  If any Shareholder shall Transfer any Common Shares, then each of the Shareholders shall have the right to nominate, and the Shareholders agree to vote their Common Shares to elect as Directors the persons so nominated, as follows:

 

(i)          each Shareholder, for every [•] percent ([•] %) of the total issued and outstanding Common Shares owned by such Shareholder, shall be entitled to nominate a Director; provided that (1) so long as [CCC] shall own [•] % or more, but less than [•] % of, the total issued and outstanding Common Shares, [CCC] shall be entitled to nominate [•] Directors and (2) the right vested to [CCC] under the preceding clause (1) shall not be vested to any Permitted Transferee to whom any Common Shares owned by [CCC] shall be Transferred;

 

(ii)         if, after giving effect to the nominations of Directors described in clause (i), there shall be an even number of Directors at the time of such election, the Largest Shareholding Shareholder shall be entitled to nominate one additional Director; and

 

(iii)        if at the time of such election, (A) [AAA] (1) owns not less than [•] % of the total issued and outstanding Common Shares or (2) is the Largest Shareholding Shareholder providing not less than [•] % of the aggregate Performance Support and is not then a Defaulting Shareholder then [AAA] shall be entitled to nominate a majority of the Directors, (B) so long as [CCC] shall own [•] % or more, but less than [•] % of the total issued and outstanding Common Shares, [CCC] shall be entitled to nominate one Director, (C) so long as [BBB] shall own more than [•] % of the total issued and outstanding Common Shares, [BBB] shall be entitled to nominate a sufficient number of Directors to have a blocking vote with respect to any matter requiring a Special Board Majority consisting of  [•] of the members of the Board, and (D) so long as [BBB] shall own more than [•] % of the total issued and outstanding Common Shares, [BBB] shall be entitled to nominate a sufficient number of Directors to have a blocking vote with respect to any matter requiring a Special Board Majority consisting of [•] % of the members of the Board, and the Shareholders shall cause the composition of the Board to change, as necessary, to comply with the foregoing requirements.

 

Provided that this clause (c) shall not apply in the event of a Transfer of [•] Common Share to a Shareholders' Director Nominee, or a Transfer of Capital Stock from a Shareholder to its Affiliate Sponsor or any of such Affiliate Sponsor's wholly-owned subsidiaries.

 

(d)         Vacancies.  If any Person is unable or unwilling to serve as a Director, the Shareholder that designated such Person shall be entitled to nominate a replacement and the Shareholders shall vote their Common Shares to elect such replacement.

 

(e)         Meetings.  There must be at least [•] regular Board meeting per year which shall be convened by the Chairman through the Secretary who shall provide at least [•] Business Days' prior written notice of the date and the agenda of action items for such meeting.  Special meetings of the Board shall be held at any time of the year on such dates and at such times as the Chairman or, in his absence, the President, requests in writing, or upon the written request of any Director, in each case communicated through the Secretary, upon at least [•] Business Days' notice of the date and agenda of action items for such meeting.  The Board shall only have the authority to approve, authorize or take action with respect to matters included in the agenda for any meeting.  Notwithstanding the foregoing, (i) a meeting to consider a matter that has been referred to the Board due to a failure to meet the quorum of the Executive Committee at two consecutive meetings or a failure to approve an action by the Executive Committee as provided in Section 4.03(c) shall be called by the Chairman upon [•] calendar days' notice; and (ii) in the event that such non-approved matter involves item (ii) or (xxii) of Schedule II and for so long as [CCC] owns at least [•] % of the total issued and outstanding Common Shares, any Director nominated by [CCC] may request an alternative date for such Board meeting that will occur within [•] Business Days after the date for the Board meeting called by the Chairman or any Director. 

 

(f)         Quorum.  Subject to the mandatory applicable requirements of [Name of the Country] law and Section 10.02(d), no action of the Board shall be taken unless a quorum constituting at least a simple majority of the Directors shall be in attendance at such meeting; provided that (i) at least one Director nominated by [BBB] shall be in attendance to constitute a duly convened Board meeting, and (ii) with respect to any meeting that will consider a matter under clause (ii) or (xxii) of Schedule II, and for so long as [CCC] owns not less than [•] % of the total issued and outstanding Common Shares, at least [•] Director nominated by [CCC] shall be in attendance to constitute a duly convened Board Meeting.  If the Board fails to achieve a quorum within [•] hour from the time appointed for such meeting, then the meeting shall automatically without notice stand adjourned and be reconvened on a date [•] Business Days after such meeting at the same time and place.  If the Board fails to achieve a quorum within one hour from the time appointed for such reconvened meeting, then any matter set forth in Schedule II that was on the agenda for such meeting shall be deemed to have failed to be approved at two successive meetings of the Board for purposes of Section 4.12.

 

(g)         Director Votes.  Subject to Sections 4.09 and 10.02, each Director shall have one vote and be entitled to vote at meetings of the Board only if such Director is duly present during such meeting.

 

(h)         Directors' Expenses.  The expenses of a Director incurred in attending any Board meetings or otherwise in fulfilling his or her obligations as a Director shall be paid by the Shareholder nominating such Director to the Board.  No Director shall be entitled to receive any remuneration for his or her services from the Company; provided that nothing herein shall preclude any Director from serving the Company in any other capacity and receiving remuneration therefor.

 

(i)          Minutes.  The Chairman shall cause written minutes of all actions taken to be prepared and delivered to each Director.

 

SECTION 4.03 Executive Committee. 

 

(a)         Executive Committee.  From and after the Second Adoption Date and so long as [AAA] and [BBB] each own at least [•] %, and [CCC] owns at least [•] %, of the total issued and outstanding Common Shares and no other Person owns [•] % or more of the total issued and outstanding Common Shares, the Shareholders shall take, or cause to be taken, such actions as may be required from time to time to cause the Board to establish and maintain an executive committee (the "Executive Committee") composed of [•] members of which [•] members, who shall be Directors, shall be nominated by the Largest Shareholding Shareholder, [•] members, who shall be Directors, shall be nominated by the Second Largest Shareholding Shareholder and [•] member (who need not be a Director) shall be nominated by [CCC] or, if [CCC] is the Largest Shareholding Shareholder or the Second Largest Shareholding Shareholder, the Shareholder then owning the third largest percentage of the total issued and outstanding Common Shares among the Shareholders.  If (i) either of [AAA] or [BBB] owns less than [•] % of the total issued and outstanding Common Shares, (ii) [CCC] owns less than [•] % or (iii) any other Person owns [•] % or more of the total issued and outstanding Common Shares, then the Shareholders shall agree on a new composition of the Executive Committee; provided that so long as any of [AAA], [BBB] or [CCC] are entitled to nominate at least [•] Directors to the Board pursuant to Sections 4.02 or 4.03, such Shareholder shall be entitled to have a minimum of one Director or member, as the case may be, nominated by it on the Executive Committee.  Each member may designate in writing his or her alternate, who shall have a right to participate and vote on matters submitted to the Executive Committee.  The Executive Committee shall appoint a chairman who shall be a member nominated by the Person entitled to nominate the Chairman of the Board pursuant to Section 4.07(a). 

 

(b)         Authority.  The Executive Committee shall have authority to approve, delegate the approval of, and take any action with respect to, all matters related to the Company other than the following:

 

(i)          the matters for which a Shareholders' resolution is required pursuant to Section 4.08(b);

 

(ii)         the filling of Board vacancies;

 

(iii)        the adoption, repeal or amendment of By-Laws of the Company;

 

(iv)        the amendment or repeal of any resolution of the Board; and

 

(v)         the distribution of dividends.

 

(c)         Quorum.  No action of the Executive Committee shall be taken unless a quorum that constitutes at least three members of the Executive Committee, consisting of at least [•] members (or alternate) appointed by each of [AAA], [BBB] and [CCC], shall be in attendance at such meeting.  If within [•] hour from the time appointed for the meeting a quorum is not present, the meeting shall automatically without notice stand adjourned and be reconvened on a date [•] Business Days after such meeting at the same time and place. If such meeting is adjourned a [•]th time, the matters on the agenda for such meeting shall be referred to the Board for consideration during a meeting to be held the first Business Day on or after [•] calendar days from the date of the [•]th reconvened meeting.

 

(d)         Meetings.  Meetings of the Executive Committee shall be held at least once a month during the period prior to the Completion Date.  The Secretary shall give at least [•] Business Days' prior written notice of meetings of the Executive Committee to each member, setting forth the agenda for such meeting; provided that any member of the Executive Committee may convene a special meeting upon [•] Business Days' prior written notice given to the other members setting forth the agenda for such meeting.  Unless delivery of the notice and agenda is waived in writing by all the members of the Executive Committee, the Executive Committee shall only have the authority to approve, authorize or take action with respect to matters included in the agenda for a particular meeting.  The unanimous approval of the members of the Executive Committee attending any duly constituted meeting shall be required for the Executive Committee to approve, authorize or take any action; any matter which fails to be unanimously approved by the members of the Executive Committee attending a duly constituted meeting shall be referred to the Board for consideration.

 

(e)         Written Consent; Teleconference.  Any action permitted or required to be taken by the members of the Executive Committee may be taken by unanimous written consent of all the members of the Executive Committee in lieu of convening a meeting.  Such written consent shall be deemed to have the same effect as resolutions adopted at a meeting of the Executive Committee in all respects.  Meetings of the Executive Committee may be held by telephone or other electronic means of communication that permits all members present to be heard by all other members present. 

 

(f)         Minutes.  The Chairman of the Executive Committee shall cause written minutes of all actions taken to be prepared and delivered to each member.

 

SECTION 4.04 Removal. 

 

No Director shall be removed without Cause unless such removal is requested by the Shareholder that designated such Director.  Any Director may be removed for Cause by a Special Shareholder Majority.  If any Shareholder requests by written notice to the other Shareholders that a Director designated by such requesting Shareholder be removed (with or without Cause), then each Shareholder shall vote all of its Common Shares to effect such removal.

 

SECTION 4.05 Vacancies. 

 

Except as provided in Section 4.06, each Shareholder agrees to vote its Common Shares and take all actions necessary to ensure that any vacancy created on the Board by the death, disability, retirement, resignation or removal (with or without Cause) of a Director shall be filled by a Person nominated by the Shareholder that nominated the Director whose departure caused such vacancy.

 

SECTION 4.06 Resignation and Reappointment  

 

If at any time any Shareholder Transfers any Common Shares, then the Shareholders shall cause the Directors nominated by such transferring Shareholder to resign or be removed and be replaced in accordance with the provisions of Section 4.02(c); provided that this clause (a) shall not apply in the event of a Transfer of one Common Share to a Shareholders' Director Nominee, or a Transfer of Capital Stock from a Shareholder to its Affiliate Sponsor or any of such Affiliate Sponsor's wholly-owned subsidiaries.

SECTION 4.07 Chairman and Secretary. 

 

(a)         Chairman.  There shall be a Chairman of the Board who shall be one of the Directors.  The Largest Shareholding Shareholder shall nominate a Director as Chairman and the Shareholders shall cause the Board to appoint such person as Chairman.  The Chairman shall preside at all meetings of the Board.  The Chairman shall serve for a one-year term, or until a successor is appointed in accordance with this Section 4.07(a); provided that if the Chairman is unable for any reason to preside at any meeting, the Directors present at such meeting that were nominated by the Largest Shareholding Shareholder, or in the absence of such Directors, the Directors then present at such meeting, as the case may be, may designate a temporary Chairman to preside at such meeting.  The Chairman may also be the President.

 

(b)         Secretary.  There shall be a Secretary of the Board who shall be appointed in accordance Section 4.10; provided that, in the absence of appointment by the Board or the absence from a meeting of the appointed Secretary, a temporary Secretary may be appointed by the Chairman. All notices or documents given to the Board shall be directed to the Secretary, and all notices or documents issued by the Board shall be issued by the Secretary.

 

SECTION 4.08 Required Approvals.  

 

(a)         Except as specified in paragraph (b) below, any acts of the Board shall require the affirmative vote of a simple majority of Directors in attendance at any duly-convened meeting of the Board.

 

(b)       Subject to any additional requirements imposed by Applicable Law and notwithstanding anything to the contrary herein or in the Organizational Documents, the Shareholders covenant and agree that:

 

(i)          the approval of a Special Board Majority shall be required for the Company to do, cause or permit any of the acts or actions set forth on Schedule II attached hereto, provided that so long as [CCC] owns not less than [•] % of the total issued and outstanding Common Shares, any approval of item (ii) and (xxii) of Schedule II by a Special Board Approval shall require the affirmative vote of at least one Director nominated by [CCC] to constitute such approval;

 

(ii)         the approval of a Special Shareholder Majority shall be required for the Company to do, cause or permit any of the acts or actions set forth on Schedule III attached hereto, provided that so long as [CCC] owns not less than [•] % of the total issued and outstanding Common Shares, any approval of items (i), or (xvi) of such Schedule by a Special Shareholder Majority shall require the affirmative vote of at least one Common Share held by [CCC] to constitute such approval; and

 

(iii)        the approval of a simple majority of the Shareholders shall be required for the Company to do, cause or permit any of the acts or actions set forth in Schedule IV attached hereto, provided that so long as [BBB] owns not less than [•] % of the total issued and outstanding Common Shares, an approval by a simple majority of the Shareholders shall require the affirmative vote of at least [•] Common Share held by [BBB] in order to constitute such approval and provided, further, that such affirmative vote of at least one Common Share held by [BBB] shall not be required at any meeting of the Shareholders that has been reconvened after adjournment due to a failure to achieve a quorum as a result of the failure of a representative of [BBB] to be present at the time originally specified for such adjourned meeting unless a representative of [BBB] is present at such reconvened meeting.

 

 

SECTION 4.09 Interested Parties.

 

If a dispute or disagreement arises between the Company and any Shareholder (an "Interested Shareholder") or any Affiliate of any Shareholder (an "Interested Party") concerning any transaction between the Company and such Interested Shareholder or such Interested Party (an "Interested Party Transaction"), and if such dispute or disagreement is submitted to arbitration or other dispute resolution proceeding, then the Interested Shareholder and any Directors or members of the Executive Committee nominated by the Interested Shareholder shall not participate in the arbitration or other dispute resolution proceeding on behalf of the Company and shall excuse itself from all Shareholder, Director and Executive Committee votes and related deliberations concerning such dispute or disagreement; provided that (i) with respect to matters for which the approval of a Special Board Majority is required pursuant to Section 4.08(b), the Interested Shareholder shall cause the members of the Executive Committee or the Directors nominated by such Interested Shareholder to vote in the same manner as the majority of the members of the Executive Committee or the Directors nominated by Shareholders which are not Interested Shareholders, as the case may be, and (ii) with respect to matters for which a Shareholders’ resolution is required pursuant to Section 4.08(b), the Interested Shareholder shall be required to vote its Common Shares in the same manner as the majority of the Common Shares held by Shareholders which are not Interested Shareholders are voted.  Notwithstanding the foregoing, in the event that [BBB] becomes an Interested Party hereunder as a result of a transaction entered into by a shareholder of [BBB] (the “Conflicted [BBB] Shareholder”) or such shareholder’s Affiliate, this Section 4.09 shall not restrict or otherwise limit the right of the members of the Executive Committee or Directors nominated by [BBB] on behalf of the other shareholder of [BBB] (the “Other [BBB] Shareholder”) or representatives of the Other [BBB] Shareholder from attending or voting during any meeting of the Executive Committee, the Board or the Shareholders, provided that (1) no member of the Executive Committee or Director nominated by or on behalf of the Conflicted [BBB] Shareholder or such shareholder’s representative, as the case may be, shall participate in the arbitration or other dispute resolution proceeding on behalf of the Company or attend, vote or otherwise participate in any related deliberations concerning the applicable dispute or disagreement submitted to such arbitration or other dispute resolution proceeding, (2) no member of the Executive Committee or Board voting on or deliberating on such dispute or disagreement shall have more than one vote, (3) (except as provided in clause (4)(B) below) at any  Shareholder’s meeting attended by [BBB] involving an Interested Party Transaction, [BBB] shall have, for the limited purpose of voting with respect to such Interested Party Transaction, such number of votes equal to the product of the percentage of the Other [BBB] Shareholder’s ownership of [BBB] and the total number of votes that [BBB] would have been entitled to exercise if such transaction were not an Interested Party Transaction and (4)(A)with respect to matters for which the approval of a Special Board Majority is required pursuant to Section 4.08(b), the Conflicted [BBB] Shareholder shall cause any Director nominated by it to vote in the same manner as the majority of the Directors nominated by Shareholders which are not Interested Shareholders and the Directors nominated by [BBB] on behalf of the Other [BBB] Shareholder and (B) with respect to matters for which a Shareholders’ resolution is required pursuant to Section 4.08(b), the Conflicted [BBB] Shareholder shall cause [BBB] to vote such portion of its Common Shares equal to the product of such Conflicted [BBB] Shareholder’s ownership percentage of [BBB] and the total number of Common Shares owned by  [BBB] in the same manner as the majority of the Common Shares held by the non-Interested Shareholders and the number of Common Shares allocated to the representatives of the Other [BBB] Shareholder pursuant to clause (3) above. 

 

SECTION 4.10 Senior Officers.

 

(a)       The senior officers of the Company shall consist of a President, Treasurer, Secretary, [•] Vice Presidents and such other officers as the Board shall deem necessary from time to time (the "Senior Officers").  The term of any Senior Officer shall be one year. 

 

(b)         The Board shall appoint the Senior Officers nominated as specified in this Section 4.10, and subject to the requirements of this Section 4.10, determine the positions, titles and roles of all Senior Officers of the Company.  Except as otherwise provided in this Section 4.10, the President shall have the authority to appoint and determine the positions, titles and roles of all employees of the Company who are not Senior Officers.

 

(c)         Prior to the Completion Date, the Senior Officers and certain employees of the Company shall be nominated as follows:

 

(i)          the Largest Shareholding Shareholder shall have the right to nominate the President, the Treasurer and the Secretary and the other Senior Officers of the Company; and

 

(ii)         from and after the execution of the Financing Documents the Second Largest Shareholding Shareholder shall be entitled to nominate a manager primarily involved in contract and loan administration during construction of the Project, who shall be on the Company's payroll and report to the Treasurer or Senior Officer who performs the functions as the chief operating officer of the Company.

 

(d)         On and after the Completion Date, the Senior Officers and certain employees of the Company shall be nominated as follows:

 

(i)          the Largest Shareholding Shareholder shall have the right to nominate the President and any other Senior Officer not nominated by other Shareholders pursuant to this Section 4.10(d); and

 

(ii)         Second Largest Shareholding Shareholder shall be entitled to nominate (A) [•] Vice President who shall be a Senior Officer and report directly to the President and (B) [•] senior manager.

 

(e)         So long as [BBB] shall own not less than [•] % of the total issued and outstanding Common Shares at any time prior to the earlier of the ECA Completion Date and the ECA Deemed Completion Date, [BBB] shall be entitled to dispatch to the Company up to [•] personnel to consult with the Company on the construction management of the Project.  Such personnel shall have the right to attend all construction meetings in which the Company participates and receive all information provided to the Company by the construction contractors.  The internal expenses and out of pocket expenses of such dispatched personnel shall be borne by [BBB] unless dispatched at the specific request of the Company.  In the event that the Company specifically requests the dispatch of [BBB] personnel to perform specific tasks on behalf of the Company, the associated costs will be for the account of the Company. 

 

(f)         So long as [CCC] shall own not less than [•] % of the total issued and outstanding Common Shares, [CCC] shall be entitled to dispatch to the Company, at [CCC]'s expense, one commercial staff member and one technical staff member, neither of whom shall be responsible for the management, operation or other activities of the Company, but shall be entitled to attend all management meetings which take place in the normal conduct of the Company's business and to receive all information generally provided to the other officers and employees of the Company.  The right vested in [CCC] under this Section 4.10(f) shall not be vested in any Permitted Transferee to whom any Common Shares owned by [CCC] shall be Transferred.  In addition, [CCC] may assign additional non-permanent staff to the Company on an "as needed" basis as mutually agreed with the Company, provided that the internal expenses and out of pocket expenses of such additional personnel shall be borne by [CCC].

 

SECTION 4.11  Other Positions or Representations. 

 

Any Director or officer of the Company may also be a director, officer or employee of a Shareholder or of one or more Affiliates of a Shareholder.

 

SECTION 4.12 Deadlock. 

 

In the event that: (i) a proposal with respect to any matter set forth in Schedules II or III fails to be approved at [•] successive meetings of the Board or Shareholders, as the case may be, or one meeting of the Executive Committee and one meeting of the Board; and (ii) a Shareholder determines in good faith that a failure to resolve such matter will fundamentally and adversely affect its investment in the Project ("Deadlock Matter"), senior officers of the Affiliate Sponsors shall attempt diligently and in good faith, for a period of [•] days after the receipt by a Party of a written notice from any other Party of such Deadlock Matter, to settle such Deadlock Matter in the first instance by mutual discussion of the Parties. The period for settlement of a particular Deadlock Matter may be extended upon mutual agreement of the Parties.  If the Parties fail to mutually agree on a resolution of the Deadlock Matter within such [•] day period (or such longer period as the Parties mutually agree) then the Shareholder referred to in clause (ii) of the first sentence of this Section 4.12 may refer the Deadlock Matter to the [•]  for resolution in a manner that addresses the best commercial interests of the Company in accordance with the [•], whose decision shall be final and binding on each of the Shareholders.  Notwithstanding the foregoing, in the event that the Board fails to approve any proposal to submit a dispute or disagreement relating to an Interested Party Transaction to arbitration or other dispute resolution proceeding, such failure shall be deemed to be a Deadlock Matter and any Shareholder, provided that a Director nominated by it voted in favor of such action at such meeting, shall have the right to submit such Deadlock Matter to [•] for resolution in a manner that addresses the best commercial interests of the Company in accordance with the [•], whose decision shall be final and binding on each of the Shareholders. The Shareholders agree to vote their Common Shares and take all other actions necessary to cause the Company to implement the decision of the [•] pursuant to this Section 4.12.

 

ARTICLE V

FINANCING PLAN, CONTRIBUTIONS, FEES AND EXPENSES

 

SECTION 5.01 Financing Plan; Allocation of Contributions and Senior Loans.

 

Subject to the requirements of the Financing Documents and other provisions of this Article 5, the Shareholders agree that the Company shall finance the Project Costs from and after the Initial Disbursement as follows:

 

(a)         the Planned Project Costs shall be funded by Base Equity Contributions in an amount equal to [•] % of such Planned Project Costs and the proceeds of Senior Loans, or to the extent any such Planned Project Cost is not eligible for financing by the Senior Loans ("Non-Eligible Project Costs"), the proceeds of the [DDD] Replacement Loans, in an aggregate amount equal to [•] % of such Planned Project Costs;

 

(b)         Contingency Costs up to a maximum amount of US$ [•] shall be funded by the Contingency Base Equity Contributions in an amount equal to [•] % of such Contingency Costs and Senior Loans, or to the extent any such Project Costs constitute Non-Eligible Project Costs, such costs shall be funded by the proceeds of [DDD] Replacement Loans, in an aggregate amount equal to [•] % of such Contingency Costs; and

 

(c)         Cost Overruns shall be funded by the Cost Overruns Equity Contributions up to $ [•].

 

SECTION 5.02 Priority in Funding Project Costs.

 

(a)         Subject to Section 5.03, in the case of any Planned Project Cost from and after the Initial Disbursement, such Project Cost shall be funded: (i) first, from Base Equity Contributions in an amount equal to [•] % of such Project Cost, (ii) second, from the proceeds of the Senior Loans to the extent eligible for financing under the Financing Documents and subject to the requirements of the Financing Documents, and (iii) third, from the proceeds of [DDD] Replacement Loans.

 

(b)         Subject to Section 5.04, in the case of any Contingency Costs from and after the Initial Disbursement, such Project Cost shall be funded: (i) first, from the proceeds of Senior Loans to the extent eligible for financing under the Financing Documents and subject to the requirements of the Financing Documents; (ii) second, from the proceeds of any liquidated damages for delay paid under the Supply and Construction Contracts to the extent available therefor pursuant to the Financing Documents; (iii) third, from insurance proceeds to the extent available therefor pursuant to the Financing Documents; (iv) fourth, from Contingency Base Equity Contributions; and (v) fifth, from the proceeds of from the proceeds of [DDD] Replacement Loans.

 

(c)         Subject to Section 5.05, in the case of any Cost Overruns from and after the Initial Disbursement, so long as such Cost Overruns, together with other Cost Overruns incurred to the date of relevant determination, do not exceed $ [•] , such Project Cost shall be funded:  (i) first, from the proceeds of any liquidated damages for delay paid under the Supply and Construction Contracts to the extent available therefor pursuant to the Financing Documents; (ii) second, from insurance proceeds to the extent available therefor pursuant to the Financing Documents; (iii) third, from the proceeds of Acceptable Financing, if any; provided that nothing herein shall obligate any Shareholder or Affiliate Sponsor to provide or arrange Acceptable Financing; and (iv) fourth, to the extent that amounts funded pursuant to the foregoing clauses (i) and (ii) are not sufficient to fund such Project Cost in full, from Cost Overruns Equity Contributions.

 

(d)        In the case of all other Cost Overruns (the "Excess Cost Overruns") from and after the Initial Disbursement, such Project Cost shall be funded (i) first, from the proceeds of any liquidated damages for delay paid under the Supply and Construction Contracts to the extent available therefor pursuant to the Financing Documents, (ii) second, from insurance proceeds to the extent available therefor pursuant to the Financing Documents, and (iii) third, from the proceeds of Acceptable Financing, if any; provided that nothing herein shall obligate any Shareholder or Affiliate Sponsor to provide or arrange Acceptable Financing.

 

SECTION 5.03 Base Equity Contributions.  

 

(a)         Pursuant to terms and conditions of this Agreement, each Sponsor shall cause its Affiliate Shareholder to make, base equity contributions ("Base Equity Contributions") to the Company to be used to fund the payment by the Company of Planned Project Costs in an aggregate amount not exceeding its Base Equity Commitment, provided each such Base Equity Contribution (i) shall be made with respect to Planned Project Costs for which a disbursement of Senior Loans and/or [DDD] Replacement Loans has been requested by the Company pursuant to Section 2.1.2 of the Common Agreement or a disbursement of [DDD] Replacement Loans has been requested by the Company pursuant to Section 2.1.3 of the Common Agreement and (ii) shall be in an amount equal to the lesser of (A) the product of (1) such Shareholder's Share Ratio and (2) the Equity Portion of the Project Costs for which such disbursement of Senior Loans and/or [DDD] Replacement Loans was requested by the Company (as are identified in the relevant Notice of Borrowing or Notice of Project Costs, as the case may be, submitted to the Senior Lenders) and (B) such Shareholder's Base Equity Commitment.  Each Base Equity Contribution shall be made by remitting such as additional paid in capital on existing Common Shares to the Company, on or prior to the date [•] Lending Business Days prior to the date on which a disbursement of Senior Loans and/or [DDD] Replacement Loans has been requested by the Company in the relevant Notice of Borrowing or one Lending Business Day prior to the Notice of Project Costs Transfer Date specified in the relevant Notice of Project Costs, or at such earlier time as necessary to comply with the Financing Documents, and in the manner contemplated in Section 5.09.  The amount of Base Equity Contributions to be made by any Shareholder hereunder in any month shall be determined on a cumulative basis taking into account any unused Base Equity Contributions (including Base Equity Advance Contributions) made in prior months.

 

(b)         In order to maximize the amount of Project Costs that may be financed by Senior Loans, each Sponsor shall cause its Affiliate Shareholder to make additional Base Equity Contributions as set forth in any Notice of Borrowing (such additional Base Equity Contributions being deemed to be Base Equity Contributions for all purposes hereunder and the aggregate of such additional Base Equity Contributions made in any month being hereinafter referred to as "Base Equity Advance Contributions") in an amount equal to the lesser of (A) the product of such Shareholder's Share Ratio and the Base Equity Advance Contributions and (B) such Shareholder's Base Equity Commitment.  Each Base Equity Advance Contribution shall be made by remitting such as additional paid in capital on existing Common Shares to the Company, on or prior to the date [•] Lending Business Days prior to the date on which a disbursement of Senior Loans and/or [DDD] Replacement Loans has been requested by the Company in the relevant Notice of Borrowing or one Lending Business Day prior to the Notice of Project Costs Transfer Date specified in the relevant Notice of Project Costs, or at such earlier time as necessary to comply with the Financing Documents, and in the manner contemplated in Section 5.09. 

 

(c)         Notwithstanding anything to the contrary herein, (i) the obligation of each Shareholder and its Affiliate Sponsor to make Base Equity Contributions under this Agreement shall conform to and comply with, and their aggregate liability in respect thereof shall not exceed, their obligations to make Base Equity Contributions as defined under and in accordance with the Funding and Support Agreement to which they are a party, (ii) the obligation of [EEE] shall be limited to causing [BBB] to make Base Equity Contributions up to a maximum of the [EEE]/[BBB] Base Equity Limit, and (iii) the obligation of [FFF] shall be limited to causing [BBB] to make Base Equity Contributions up to a maximum of the [FFF]/[BBB] Base Equity Limit.

 

SECTION 5.04 Contingency Base Equity Contributions.  

 

(a)         Pursuant to terms and conditions of this Agreement, each Sponsor shall cause its Affiliate Shareholder to make contingency base equity contributions ("Contingency Base Equity Contributions") to the Company to be used to fund the payment by the Company of Contingency Costs in an aggregate amount not exceeding its Contingency Base Equity Commitment, provided each such Contingency Base Equity Contribution (i) shall be made with respect to Contingency Costs for which a disbursement of Senior Loans and/or [DDD] Replacement Loans has been requested by the Company pursuant to Section 2.1.2 of the Common Agreement or a disbursement of [DDD] Replacement Loans has been requested by the Company pursuant to Section 2.1.3 of the Common Agreement and (ii) shall be in an amount equal to the lesser of (A) the product of (1) such Shareholder's Share Ratio and (2) the Equity Portion of the Project Costs for which such disbursement was requested by the Company (as are identified in the relevant Notice of Borrowing or Notice of Project Costs, as the case may be, submitted to the Senior Lenders) and (B) such Shareholder's Contingency Base Equity Commitment.  Each Contingency Base Equity Contribution shall be made remitting such as additional paid in capital on existing Common Shares the Company, on or prior to the date [•] Lending Business Days prior to the date on which a disbursement of Senior Loans and/or [DDD] Replacement Loans has been requested by the Company in the relevant Notice of Borrowing or one Lending Business Day prior to the Notice of Project Costs Transfer Date specified in the relevant Notice of Project Costs, or at such earlier time as necessary to comply with the Financing Documents, and in a manner contemplated in Section 5.09.  The amount of Contingency Base Equity Contributions to be made by any Shareholder hereunder in any month shall be determined on a cumulative basis taking into account any unused Contingency Base Equity Contributions (including Contingency Base Equity Advance Contributions) made in prior months.

 

(b)         In order to maximize the amount of Project Costs that may be financed by Senior Loans, each Sponsor shall cause its Affiliate Shareholder to make additional Contingency Base Equity Contributions as set forth in any Notice of Borrowing (such additional Contingency Base Equity Contributions being deemed to be Contingency Base Equity Contributions for all purposes hereunder and the aggregate of such additional Contingency Base Equity Contributions made in any month being hereinafter referred to as "Contingency Base Equity Advance Contributions") in an amount equal to the lesser of (A) the product of such Shareholder's Share Ratio and the Contingency Base Equity Advance Contributions and (B) such Shareholder's Contingency Base Equity Commitment.  Each Contingency Base Equity Advance Contribution shall be made by remitting such as additional paid in capital on existing Common Shares to the Company, on or prior to the date [•] Lending Business Days prior to the date on which a disbursement of Senior Loans and/or [DDD] Replacement Loans has been requested by the Company in the relevant Notice of Borrowing or one Lending Business Day prior to the Notice of Project Costs Transfer Date specified in the relevant Notice of Project Costs, or at such earlier time as necessary to comply with the Financing Documents, and in a manner contemplated in Section 5.09. 

 

(c)         Notwithstanding anything to the contrary herein, (i) the obligation of each Shareholder and its Affiliate Sponsor to make Contingency Base Equity Contributions under this Agreement shall conform to and comply with, and their aggregate liability in respect thereof shall not exceed their obligations to make Contingency Base Equity Contributions as defined under and in accordance with the Funding and Support Agreement to which they are a party, (ii) the obligation of [EEE] shall be limited to causing [BBB] to make Contingency Base Equity Contributions up to a maximum of the [EEE]/[BBB] Contingency Base Equity Limit, and (iii) the obligation of [FFF] shall be limited to causing [BBB] to make Contingency Base Equity Contributions up to a maximum of the [FFF]/[BBB] Contingency Base Equity Limit.

 

SECTION 5.05 Cost Overruns Equity Contributions. 

 

Pursuant to terms and conditions of this Agreement, each Sponsor shall cause its Affiliate to make cost overruns equity contributions ("Cost Overruns Equity Contributions") to the Company to be used to fund the payment by the Company of the Cost Overruns in an aggregate amount not exceeding its Cost Overruns Equity Commitment, provided each such Cost Overruns Equity Contribution (i) shall be in an amount equal to the lesser of (A) the product of (1) such Shareholder's Share Ratio and (2) the Cost Overrun identified in the relevant Notice of Borrowing or Notice of Project Costs, as the case may be, submitted to the Senior Lenders) and (B) such Shareholders' Cost Overruns Equity Commitment.  Each Cost Overruns Equity Contribution shall be made in the form of a subordinated Shareholder loan ("Subordinated Shareholder Loan") in a principal amount equal to such Cost Overruns Equity Contribution on or prior to the date [•] Lending Business Days prior to the date on which a disbursement of Senior Loans and/or [DDD] Replacement Loans has been requested by the Company, or at such earlier time as necessary to comply with the Financing Documents, and in a manner contemplated in Section 5.09; provided that if and to the extent necessary to comply with Applicable Law and the Financing Documents, a portion of such Subordinated Shareholder Loans shall be converted to Capital Stock of the Company in accordance with Section 3.01(f).  The Company shall issue a Shareholder Subordinated Note to such Shareholder in the face amount equal to the principal amount of such Subordinated Shareholder Loan.  Notwithstanding anything to the contrary herein, (i) the obligation of each Shareholder and its Affiliate Sponsor to make Cost Overruns Equity Contributions under this Agreement shall conform to and comply with, and their aggregate liability in respect thereof shall not exceed their obligations to make Cost Overruns Equity Contributions as defined under and in accordance with the Funding and Support Agreement to which they are a party, (ii) the obligation of [EEE] shall be limited to causing [BBB] to make Cost Overruns Equity Contributions up to a maximum of the [EEE]/[BBB] Cost Overruns Equity Limit, and (iii) the obligation of [FFF] shall be limited to causing [BBB] to make Cost Overruns Equity Contributions up to a maximum of the [FFF]/[BBB] Cost Overruns Equity Limit.

 

SECTION 5.06 [DDD] Replacement Loans.

 

[DDD] agrees to make or cause [AAA] or [III] to make subordinated loans (the "[DDD] Replacement Loans") to the Company to finance the Planned Project Costs and the Contingency Costs as provided in Sections 5.02(a) and 5.02(b) in accordance with the [DDD] Replacement Loan Agreement and the requirements of the Financing Documents.  Each [DDD] Replacement Loan shall rank senior to all Subordinated Shareholder Loans and Shareholder's advances outstanding from time to time and shall be subordinate to all other debt obligations of the Company.  Subject to the requirements of the Financing Documents, notwithstanding anything to the contrary herein, [DDD]'s obligation to make or cause [AAA] or [III] to make [DDD] Replacement Loans under this Agreement shall conform to and comply with, and its aggregate liability in respect thereof shall not exceed its obligations to make or cause [AAA] or [III] to make [DDD] Replacement Loans as defined under and in accordance with the [DDD] Replacement Loan Agreement. 

 

SECTION 5.07 Shareholder's Advances.

 

Each Shareholder shall fund Project Costs prior to the Initial Disbursement as set forth in Section 3.01(i) in the form of Shareholder advances.  Unless the Board determines otherwise, each Shareholder's advance shall not bear any interest and be subject to conversion into Capital Stock of the Company as provided in Section 3.01(i).  The Company shall issue to each Shareholder making a Shareholder's  advance an acknowledgement and receipt thereof, evidencing such Shareholders' advance.  Each Shareholder's advance shall rank pari passu with all other Shareholders' advances outstanding from time to time, and be subordinate to all other debt obligations of the Company.

 

SECTION 5.08 Contribution and [DDD] Replacement Loan Procedures.

 

(a)         Each Shareholder agrees to make Contributions in accordance with the Funding and Support Agreement to which it is a party and [AAA] agrees to make [DDD] Replacement Loans in accordance with the [DDD] Replacement Loan Agreement and the Funding and Support Agreement to which it is a party. 

 

(b)         The Company shall issue a written request to the Shareholders for Contributions and [DDD] Replacement Loans, as the case may be ("Payment Notice") at the same time a Notice of Borrowing or Notice of Project Costs, as the case may be, is submitted to the Senior Lenders in accordance with the Financing Documents and the [DDD] Replacement Loan Agreement.  The Payment Notice may be in the form of a copy of the Notice of Borrowing or Notice of Project Costs to be submitted under the Financing Documents or shall otherwise contain the information required to be set forth in a Notice of Borrowing or Notice of Project Costs, as the case may be.

 

(c)         The Company shall from time to time provide such documents and other information to the Shareholders and their Affiliate Sponsors as is necessary or requested by any Shareholder or Affiliate Sponsor to facilitate registration of their investment in the Company and/or the first tier Philippine holding entity through which such Affiliate Sponsor holds its indirect interest in the Company.

 

SECTION 5.09 Manner of Making Contributions and [DDD] Replacement Loans. 

 

All Contributions and [DDD] Replacement Loans required to be made hereunder from and after the date of the Initial Disbursement shall be made in Dollars or in [Currency] equivalent of relevant Contribution or [DDD] Replacement Loan amount in Dollars by deposit, on or before the time required pursuant to Section 5.03, 5.04, 5.05 or the Financing Documents, as the case may be, of immediately available funds into the account designated therefore under the Trust Agreement, or to such other account as the Trustee shall from time to time designate in writing.  To the extent required by Philippine law, any Contribution made in Dollars shall be converted into [Currency] and deposited into the account designated by the Trust Agreement and converted back into Dollars and deposited into the account designated by the Trust Agreement; provided that the costs and banking charges in respect of any such conversion (i) from Dollars to [Currency] and (ii) from [Currency] to Dollars shall be borne by the Company. 

 

SECTION 5.10 Taxes. 

 

(a)        Each Contribution required to be made hereunder shall be made free and clear of, and without deduction for, any and all taxes, levies, imposts, deductions, charges or withholdings imposed and all liabilities on or with respect to (i) such Contribution, (ii) this Agreement or the execution, registration, enforcement, notarization or other formalization hereof or (iii) any subscription to or issuance of shares or other ownership interests in the Company in connection with such Contribution, including any currency conversion fees (except as otherwise provided in Section 5.09), costs or charges (collectively, "Taxes").

 

(b)         If any Shareholder shall be required by law to withhold, deduct or pay any Taxes imposed by any jurisdiction or any political subdivision or any other Person from or in respect of any sum payable hereunder to the Company:

 

(i)          the sum payable shall be increased as may be necessary so that after making all required deductions and payments (including deductions and payments applicable to additional sums payable under this Section 5.10), the Company receives an amount equal to the sum it would have received had no such deductions been made;

 

(ii)         such Shareholder shall make such deductions and payments; and

 

(iii)        such Shareholder shall pay the full amount of the relevant Taxes to the taxation authority or other authority in accordance with Applicable Law or to any other Person entitled thereto.

 

(c)         Any payment hereunder of Taxes shall be entirely for the account of the applicable Shareholder and shall not be considered a Contribution pursuant to Sections 5.03, 5.04 or 5.05.

 

SECTION 5.11  Independent Obligations.

 

Each Shareholder's and Sponsor's obligation under each of Sections 5.03, 5.04, 5.05 and 5.06 are separate and independent, and performance under one such Section shall not diminish such Shareholder's or Sponsor's obligations under such other Sections.  Each Sponsor and its Affiliate Shareholder shall be jointly and severally liable for their respective obligations under Sections 5.03, 5.04 and 5.05, but for the avoidance of doubt, the obligations of each Sponsor and its Affiliate Shareholder shall be several and not joint with the obligations of the other Sponsors and Shareholders under such Sections.

 

SECTION 5.12 Performance Support. 

 

(a)         The Shareholders understand that [DDD], [FFF] and [EEE] (each of [DDD], [FFF] and [EEE], and any Affiliate of any thereof which provides such support on their behalf being hereinafter referred to as the "Support Providers") are obligated to fund certain financial support obligations relating to the Project as set forth in this Section 5.12.

 

(b)         [DDD] shall (i) provide and procure the ECA Construction Performance Security and fund [•] % of any amounts necessary to reimburse draws under the ECA Construction Performance Security and any interest accruing thereon, (ii) provide and procure the ECA Operation and Maintenance Security and, subject to (c) below, fund [•] % of any amounts necessary to reimburse draws under the ECA Operation and Maintenance Security and any interest accruing thereon, (iii) procure and maintain a letter of credit for the initial funding of the Company's debt service reserve, as and when required in accordance with the Financing Documents until the First Warranty Period Expiry Date (as defined in the Maintenance Support Undertaking) or, if the Extended Maintenance Support Period (as defined in the Maintenance Support Undertaking) commences, the expiry of the Extended Maintenance Support Period but in any event not longer than a period of [•] years, (iv) fund CES as and when required in accordance with the Financing Documents, (v) provide the Limited Take-Out Undertaking as required under the Financing Documents, and (vi) provide or procure a payment guarantee, performance or surety bond or other similar arrangements in favor of the Company or other parties to the Supply and Construction Contracts to the extent required under any Supply and Construction Contract.

 

(c)         [FFF] will enter into a reimbursement sharing agreement with [DDD] pursuant to which [FFF] shall reimburse [DDD] for [•] % of any amount necessary to obtain, maintain, reinstate and reimburse draws under the ECA Operation and Maintenance Security.

 

(d)         [DDD] and [EEE] will fund CDS as and when required in accordance with the Financing Documents.

 

(e)         [DDD], [EEE] and [FFF] will fund [•]%,[•]% and [•]%, respectively, of any fees payable to the [KKK] under the PPU in accordance with the Financing Documents to the extent such fees are not paid by the Company.

 

(f)         Each Shareholder shall be jointly and severally liable to the other Shareholders and the Company for failure of its Affiliate Sponsor to perform any of its obligations under this Section 5.12.

 

(g)         The costs and expenses incurred and payments, if any, made by a Support Provider in respect of any performance support referred to above (collectively, the "Performance Support") shall be reimbursed by the Company in accordance with Section 5.13.

 

(h)         Notwithstanding anything to the contrary hereunder, each Shareholder's and its Affiliate Sponsor's obligation to provide Performance Support under this Agreement (other than the respective obligations with respect to the ECA Construction Performance Security and Operation and Maintenance Security in each case to the extent such obligations survive the repayment in full of the Senior Loans) shall conform to and comply with, and its liability in respect thereof shall not exceed its obligations to provide such Performance Support as defined under and in accordance with the Funding and Support Agreement to which it is a party.

 

(i)          In addition to the Performance Support referred to above, [DDD] shall provide the O&M Protocol Guarantee pursuant to the MTSA.

 

(j)          Notwithstanding any other provision herein, [DDD] may perform it's obligations to provide Performance Support by causing [III] to perform such obligation and to the extent [III] performs any such obligation it shall be deemed to be a Support Provider hereunder. 

 

SECTION 5.13 Payment of Performance Support Costs and Payments.

 

(a) The Company shall be responsible for all reasonable costs and expenses as determined by the Board (including reasonable costs and expenses of legal counsel) incurred by any Support Provider in connection with providing Performance Support that are payable to third parties other than (i) any Support Provider's cost of funds in connection with funding any payment of Performance Support and (ii) costs and expenses (including costs and expenses of legal counsel) in connection with any litigation, arbitration or other similar proceeding to seeking to enforce any Support Provider's obligations to provide any Performance Support unless and to the extent that the final determination of such litigation, arbitration or similar proceeding is that such Support Provider is not obligated to provide such Performance Support.; provided that all such costs and expenses (other than with respect to (i) the cost of procuring and maintaining a letter of credit for the funding of the Company's debt service reserve which shall be payable as O&M Costs (as defined in the Common Agreement) and (ii) the ECA Security Compensation, which shall be payable as specified in the next sentence) shall be paid out of cash flow of the Company available for distribution to the Shareholders in accordance with the Financing Documents and Applicable Law prior to payment of amounts specified in Section 6.03.  The Company shall promptly reimburse any Support Provider for such costs and expenses, provided that to the extent [DDD] is required to pay any fee to a third party in respect of the ECA Construction Performance Security or ECA Operation and Maintenance Security, [DDD] shall be entitled to receive compensation from the Company of an amount which is the greater of (i) [•]% of the amount of such ECA Construction Performance Security or ECA Operation and Maintenance Security and (ii) the amount of such fee to be paid to the relevant third party (the "ECA Security Compensation"); provided, however, that to the extent (i) the ECA Security Compensation exceeds the amount of fees to be paid to third parties or (ii) the amount of fees to be paid to third parties exceeds [•]% of the amount of such ECA Construction Performance Security or ECA Operation and Maintenance Security, such excess (the "Excess ECA Security Compensation") shall be paid as set forth in Section 6.03 out of cash flow of the Company available for distribution to the Shareholders in accordance with the Financing Documents and Applicable Law.

 

(b)         Subject to the requirements of the Financing Documents, any payment (other than costs and expenses referred to in paragraph (a) above to the extent such costs and expenses are reimbursed by the Company) made or amount funded by any Support Provider with respect to any Performance Support provided by it pursuant to this Section 5.12 shall be deemed to be a Subordinated Shareholder Loan made by such Support Provider to the Company in a principal amount equal to the aggregate amount of all such costs, expenses and payments unreimbursed by the Company and the Company shall issue a Shareholder Subordinated Note to such Support Provider in the face amount equal to the principal amount of such Subordinated Shareholder Loan; provided that with respect to any amount necessary to obtain, maintain, reinstate and reimburse draws under the ECA Operation and Maintenance Security and any interest accruing thereon, (i) [DDD] shall be deemed to have made a Subordinated Shareholder Loan in a principal amount equal to any amounts paid by it that are not reimbursed by [FFF], and (ii) [FFF] shall be deemed to have made a Subordinated Shareholder Loan in a principal amount equal to any amounts it reimburses to [DDD], and the Company shall issue a Shareholder Subordinated Note to [DDD] and [FFF] in the face amount equal to the principal amount of each of their Subordinated Shareholder Loans.

 

SECTION 5.14 Subordinated Shareholder Loans.

 

Each Subordinated Shareholder Loan shall bear interest at [•]% per annum payable (without any gross-up for Taxes) on each Interest Payment Date; provided, that to the extent that any interest is not paid when due, such unpaid interest shall also bear interest at [•]% per annum (without any gross-up for Taxes), payable on each Interest Payment Date, from the date on which the corresponding interest was due but not paid until such unpaid interest is paid; provided, however, that prior to the Completion Date, to the extent that any interest is not paid when due, the outstanding principal amount of the Subordinated Shareholders' Loan shall be increased by an amount equal to such unpaid interest which additional principal amount shall bear interest at [•]% per annum (without any gross-up for Taxes)  from the date on which the corresponding interest was due but not paid. The principal shall be repayable in [•]equal semi-annual installments from and including the later of (i) the first Payment Date following the Completion Date and (ii) the first Payment Date after the date on which such Subordinated Shareholder Loan is made.  Each Subordinated Shareholder Loan shall (i) be evidenced by a Shareholder Subordinated Note, (ii) be subject to prepayment as set forth therein and as permitted under the Common Agreement and (iii) be subject to such other terms and conditions as stated in such Shareholder Subordinated Note.  Each Subordinated Shareholder Loan shall rank pari passu, on an equal and ratable basis, with all other Subordinated Shareholder Loans outstanding from time to time and be subordinate to all other debt obligations of the Company.  Subordinated Shareholder Loans shall be converted into Series C Preferred Shares in accordance with Section 3.01(f).

 

SECTION 5.15 Maintenance Costs Overrun.

 

(a)         [AAA] guarantees to the other Shareholders (the "Other Shareholders") that the aggregate amount of maintenance costs incurred by the Company during any Contract Year shall not exceed the aggregate amount of costs for such Contract Year, forecasted by the Shareholders in the maintenance budget set forth in Exhibit D (the "Maintenance Budget").  In consideration for the provision of the aforementioned guarantee by [AAA] as well as the provision of the O&M Protocol Guarantee by [DDD], the Company shall pay, subject to the requirements of the Financing Documents and Section 6.03, to [AAA] an annual fee (the "O&M Guarantee Fee") in an amount equal to $[•] (as adjusted pursuant to clause (b) below) on an annual basis after the declaration of dividends by the Board in respect of any Contract Year during the commercial operation of the Project, commencing with the Contract Year in which the ECA Completion Date occurs; provided that the final payment by the Company of the O&M Guarantee Fee shall be downwardly adjusted on a ratable basis to reflect the remaining calendar days of the fiscal year prior to the date of termination of the ECA.  Notwithstanding anything to the contrary stated herein, [AAA]'s liability with respect to its guarantee in favor of the other Shareholders set forth in this paragraph (a) for any Contract Year shall not exceed such Contract Year's Applicable Series B Dividend Amount (as defined below), subject only to the carryover of a Series B Dividend Shortfall Amount (as defined below) to the following Contract Year as provided in the last sentence of  Section 5.15(b) and [AAA] shall not in any event have any obligation with respect to such guarantee other than complying with (i) the adjustment to the O&M Guarantee Fee contemplated in this Section 5.15(a) and (ii) the provisions of paragraph (b) as a Shareholder.

 

(b)         In the event that the aggregate amount of maintenance costs incurred by the Company during any Contract Year exceeds the aggregate amount of budgeted costs for such Contract Year set forth in the Maintenance Budget ("Maintenance Cost Overrun"), the Shareholders shall ensure that the Board declares a dividend in respect of Series B Preferred Shares for such fiscal year in an amount that permits each of the holders of Series B Preferred Shares to realize the sum (the "Base Case Dividend Amount") of (i) an aggregate amount of dividend income from the Company for such Contract Year, after accounting for all dividends to be declared by the Company in respect of Common Shares for the same Contract Year, that would have been received by each holder of Series B Preferred Shares but for the Maintenance Cost Overrun during such Contract Year and (ii) the prior Contract Year's Series B Dividend Shortfall Amount (as defined below), if any; provided that if the aggregate of the Base Case Dividend Amount for each such holder is equal to or exceeds the Company's unrestricted retained earnings for the relevant Contract Year (such excess referred to as the "Shortfall Amount"), then:

 

(i)          no dividends in respect of the Common Shares shall be declared for such Contract Year; and

 

(ii)         in the event the Shortfall Amount is less than or equal to $[•], the Shareholders shall cause the Company to: (A) downwardly adjust the O&M Guarantee Fee payable for such Contract Year by an amount equal to the Shortfall Amount, (B) apply the funds made available by such adjustment to increase the unrestricted retained earnings for the relevant Contract Year and (C) declare the entire amount of the unrestricted retained earnings of the Company for the relevant Contract Year as dividends in respect of the Series B Preferred Shares; or

 

(iii)        in the event the Shortfall Amount exceeds $[•], the Shareholders shall cause the Company to: (A) downwardly adjust the O&M Guarantee Fee payable for such Contract Year to zero, (B) apply the funds made available by such adjustment to increase the unrestricted retained earnings for the relevant Contract Year; and (C) declare the entire amount of unrestricted retained earnings for the relevant Contract Year as dividends in respect of the Series B Preferred Shares.

For the purposes of this Section 5.15, for any Contract Year, the amount in respect of dividends on Series B Preferred Shares referred to in clause (ii) or (iii) above, as the case may be, shall be referred to herein as such year's "Applicable Series B Dividend Amount".  To the extent that the Base Case Dividend Amount for any Contract Year exceeds the Applicable Series B Dividend Amount for such Contract Year (such Contract Year's "Series B Dividend Shortfall Amount"), the Shareholders shall cause the Board to declare as dividends in respect of the Series B Preferred Shares for the following Contract Year an amount equal to the sum of: (i) the Series B Dividend Shortfall Amount for the previous Contract Year, plus (ii) the Applicable Series B Dividend Amount (if any) for such following Contract Year.

 

(c)         [DDD] agrees to cause [AAA] to perform its obligations in accordance with this Section 5.15.

 

(d)         The Other Shareholders agree that the Company shall not declare or pay any dividends in respect of the Series B Preferred Shares except as required under this Section 5.15(b).

 

SECTION 5.16 MTSA Fees.

 

Subject to the requirements of the Financing Documents, on the date of the Initial Disbursement, the Company shall pay [DDD] the fees accrued under the MTSA through the date of Initial Disbursement.

 

SECTION 5.17 Third Party Development Costs.

 

The Parties acknowledge that [AAA] will pay for all third-party development costs and expenses of the Project incurred for the benefit of the Company prior to the Effective Date.  [AAA] shall be entitled to permit such costs and expenses to be incurred on its behalf by [DDD].  To the extent permitted under the Financing Documents, the Company shall reimburse [AAA] or [DDD], as the case may be, for all such development costs and expenses paid or incurred on the date of the Initial Disbursement, provided that such costs and expenses are included in and consistent with the Project Budget.

 

SECTION 5.18 Internal Development Costs and other Compensation.

 

Each of  [DDD] and [EEE] shall be compensated and reimbursed for their internal development costs as follows:

 

(a)         On the date of the Initial Disbursement, the Company shall pay to [EEE] $[•] as reimbursement of [EEE]'s internal development costs and expenses incurred in connection with the development of the Project.

 

(b)         On the Completion Date, the Company shall pay [DDD] $[•] (solely out of unused Contributions or [DDD] Replacement Loans) as compensation for its advance funding of Project Costs.

 

(c)         On the Completion Date, to the extent permitted under the Financing Documents and to the extent that the Company can fund such costs from the Available Contingency Amount, the Company shall:

 

(i)          first, reimburse [DDD] an amount equal to $[•] for internal costs and expenses incurred in connection with the development of the Project;

 

(ii)         second, pay to [DDD] a fee of $[•] as compensation for providing the LTU; and

 

(iii)        third, pay to [DDD] an amount mutually approved by the Shareholders up to the amount of the balance, if any, of the remainder of the Available Contingency Amount to compensate [DDD] for its cost of funds in connection with providing $[•] in initial equity prior to [•], 20 [•].

 

SECTION 5.19 Tax Support.

 

(a)         Notice.  During any fiscal year of the Company in which (i) a Change of Law (as defined in the ECA) in respect of any [Name of the Country] tax, including any tax imposed on income, profit or gain, but excluding withholding tax applicable to the payment of interest, premium or other payments on debt (a “Change of Tax Law”) occurs, and (ii) such Change of Tax Law will increase the Company’s tax liability due for such fiscal year from the level of net income that the Company would have incurred but for such Change of Tax Law and reduce the Company’s net income for such fiscal year from the level of net income that the Company would have received but for such Change of Tax Law, the Company shall cause its tax auditor as promptly as practicable to prepare and provide the Company with a forecast of the incremental amount payable by the Company arising out of such Change of Tax Law during such fiscal year as well as for each fiscal year thereafter during the Cooperation Period (as defined in the ECA).   Thereafter, the Company shall:  (A) promptly forward a copy of any such forecast to each of the Shareholders upon receipt thereof from the tax auditor; and (B) provide [DDD] and [AAA] from time to time with written notice (each, a “Tax Support Notice”) that indicates the actual incremental amount payable by the Company, arising out of such Change of Tax Law, as evidenced by filings made by the Company with, or assessed by the relevant government authority, or as the Company may reasonably determine in accordance with such forecast (the “Change of Tax Law Expense”) and Make Whole Adjustment (as defined below), if any, at least [•] ([•]) [Name of the City] business days prior to the date when such Change of Tax Law Expense becomes due and payable by the Company.

 

(b)         Downside Payment. Within [•] ([•]) Business Day after the date that the Company delivers a Tax Support Notice to [DDD], [DDD] shall pay, or cause [AAA] to pay, to the Company an amount equal to (i) the Change of Tax Law Expense indicated in such notice, [plus (ii) an upward adjustment (the “Make Whole Adjustment”) as reasonably determined by the Company that (A) reflects the applicable taxes to be paid by the Company as a result of the Company’s additional income derived from the receipt of payment of such Change of Tax Law Expense, and (B) places the Company in the same position as if no income tax were applied to the income realized by such payment] . Each such payment shall be remitted by wire transfer in immediately available funds to the Company’s account, designated in writing by the Company.  All fees and charges in connection with the wire transfer of such amounts shall be borne by [DDD] or [AAA], as the case may be, and such remittance shall be without any deduction, set-off or counterclaim of any nature whatsoever and free and clear of any tax or other deductions of any nature.  For the avoidance of doubt, any payments remitted by [DDD] or [AAA] under this Section 5.19 shall not constitute Performance Support for purposes of Section 5.13.

 

(c)         Upside Recovery.  Upon the occurrence of a Change of Tax Law that reduces the Company’s tax liability from the level of tax liability that the Company would have paid but for such Change of Tax Law, the Company shall cause its tax auditor as promptly as practicable to prepare and provide the Company with a forecast of the savings in the Company’s net income directly arising out of such Change of Tax Law during such Contract Year as well as for each Contract Year thereafter during the Cooperation Period.  Thereafter, the Company shall:  (i) promptly forward a copy of any such forecast to each of the Shareholders upon receipt thereof from the tax auditor; and (ii) pay to [DDD] on the first Business Day after the Company has filed an income tax return for such fiscal year an amount equal to (A) [•] percent (  [•] %) of the actual increase, based on such tax return, in the Company’s net income directly arising out of such Change of Tax Law during such fiscal year, less (B) all applicable withholding taxes and other deductions required by applicable law.  Such payments shall be remitted by wire transfer in immediately available funds to an account designated in writing by [DDD].

 

(d)  Refund of Tax Support Payments.  If during any fiscal year of the Company, the Company becomes entitled to a refund, tax credit or other tax benefit with respect to any tax liability for which a Change of Tax Law Expense has been paid by [DDD] during such fiscal year or any previous fiscal years, the Company shall pay to [DDD] an amount equal to the sum of (i) the actual amount of such refund, tax credit or tax benefit received by the Company [and (ii) the amount of Make Whole Adjustment (or, in case of any partial refund or credit, the portion of the Make Whole Adjustment attributable to the amount of tax liability so refunded or credited), if any, paid by [DDD] with respect to such tax liability] . Such payment shall be made on the [•]th Business Day after the Company has received such refund or credit and be remitted by wire transfer in immediately available funds to an account, designated in writing by [DDD].  Such payment shall be made without any deduction, set-off or counterclaim of any nature whatsoever and free and clear of any tax or other deductions of any nature.

 

SECTION 5.20 Project Costs Bridging Advances; Unused Equity. 

 

(a)         In the event that any disbursement of Senior Loans requested in a Notice of Borrowing is not made on the date requested for disbursement thereof due to any failure to satisfy a condition precedent, the Sponsors and their Affiliate Shareholders may, but shall not be obligated to, advance funds to the Company to fund Project Costs pending receipt of such proceeds of Senior Loans.  Upon receipt of such proceeds of Senior Loans, the Shareholders shall cause the Company to reimburse any Sponsor or its Affiliate Shareholder that funded any such Project Costs from such proceeds of Senior Loans for such amounts advanced by such Sponsor or its Affiliate Shareholder.

 

(b)         In the event that the Trustee transfers funds from the Holding Account to the Dividend Account on or after the Completion Date in accordance with the Financing Documents, the Shareholders shall cause the Company as soon as practicable thereafter to pay such funds to the Shareholders as a redemption of Series A Preferred Shares. 

 

ARTICLE VI

TRANSACTIONS WITH SHAREHOLDERS OR AFFILIATES;

DIVIDENDS AND DISTRIBUTIONS

 

SECTION 6.01 Service Contracts and Other Transactions. 

 

The Board may cause the Company to enter into any service contracts, agreements and other transactions as it shall deem appropriate with any Person (including any Shareholder or Affiliate of any Shareholder); provided that any service contracts, agreements or other transactions entered into with any Shareholder or Affiliate of a Shareholder are on terms materially no less favorable to the Company than those prevailing at that time for comparable contracts, agreements or other transactions with unassociated or unaffiliated independent parties.

 

SECTION 6.02 Dividends and Distributions. 

 

The Shareholders hereby agree that they shall, consistent with the Company's financial obligations (including its obligations under the Financing Documents) and Applicable Law, optimize the Company's distributable profits (after paying or setting aside reserves for (i) Indemnified Damages, (ii) amounts payable to [MMM] under the Maintenance Support Undertaking, (iii) amounts payable to [MMM] under the Spare Rotor Letter Agreement, and (iv) amounts payable to [JJJ] under Section V.1.C. of the Eighth Schedule of the ECA) and declare all its distributable profits as dividends except as set forth in Section 6.03.

 

SECTION 6.03 Equity Waterfall. 

 

Subject to Sections 5.13 and 5.20, the Shareholders agree that all cash flow of the Company available for distribution to the Shareholders in accordance with the Financing Documents and Applicable Law shall be applied as and when available from time to time in the following order of priority:

 

(a)         First, to the payment of any unpaid Excess ECA Security Compensation then due;

 

(b)         Second, to the payment of any unpaid O&M Guarantee Fees then due after taking into account any adjustment required pursuant to Section 5.15;

 

(c)         Third, to the payment of any amounts then due and payable to [DDD], [AAA] or [III] under the [DDD] Replacement Loans in accordance with the [DDD] Replacement Loan Agreement;

 

(d)         Fourth, to the pro rata payment (on the basis of the overdue interest due in respect of Subordinated Shareholder Loans held by each Shareholder or their Sponsor Affiliates or any Affiliate of their Sponsor Affiliates) of any overdue interest owed to the Shareholders or their Sponsor Affiliates or any Affiliate of their Sponsor Affiliates in respect of Subordinated Shareholder Loans;

 

(e)         Fifth, to the pro rata payment (on the basis of the overdue principal due in respect of Subordinated Shareholder Loans held by each Shareholder or their Sponsor Affiliates or any Affiliate of their Sponsor Affiliates) of any overdue principal owed to the Shareholders or their Sponsor Affiliates or any Affiliate of their Sponsor Affiliates in respect of Subordinated Shareholder Loans;

 

(f)         Sixth, to the pro rata payment (on the basis of the interest then due in respect of Subordinated Shareholder Loans held by each Shareholder or their Sponsor Affiliates or any Affiliate of their Sponsor Affiliates) of interest then due and payable to the Shareholders or their Sponsor Affiliates or any Affiliate of their Sponsor Affiliates in respect of Subordinated Shareholder Loans;

 

(g)         Seventh, to the pro rata payment (on the basis of the outstanding principal amount of Subordinated Shareholder Loans held by each Shareholder or their Sponsor Affiliates or any Affiliate of their Sponsor Affiliates) of principal then due and owing to the Shareholders or their Sponsor Affiliates or any Affiliate of their Sponsor Affiliates in respect of Subordinated Shareholder Loans;

 

(h)         Eighth, to the redemption of Series C Preferred Shares, if any, to the extent approved by the Board;

 

(i)          Ninth, to the payment of dividends on Series B Preferred Shares, if any, to the extent approved by the Board;

 

(j)          Tenth, to the redemption of Series A Preferred Shares to the extent approved by the Board;

 

(k)         Eleventh, to the payment of dividends on Common Shares to the Shareholders.

Notwithstanding the foregoing, (i) any Sponsor or Shareholder who funds any Project Costs pending receipt of Liquidated Damages for Delay or insurance proceeds shall be entitled to be reimbursed directly out of such Liquidated Damages for Delay or insurance proceeds upon receipt thereof in accordance with the Financing Documents, and (ii) upon any transfer of funds from the Performance Liquidated Damages Subaccount to the Dividend Account pursuant to Section 8.2.4(g) of the Trust Agreement, such funds shall be paid to any Sponsor or its Affiliate Shareholder that paid any amounts to the issuer of the ECA Operation and Maintenance Security in respect of any draws thereon to reimburse such Sponsor or its Affiliated Shareholder for such payments to the issuer of the ECA Operation and Maintenance Security.

 

ARTICLE VII

ACCOUNTING

 

SECTION 7.01 Fiscal Year. 

 

The fiscal year of the Company shall be the calendar year or such other annual period as is selected, in accordance with Applicable Law, by the Board.

 

SECTION 7.02 Location of Records. 

 

The books of account of the Company shall be kept and maintained at the offices of the Company identified in Section 2.03 or at such other place as the Board shall determine.

 

SECTION 7.03 Financial Records. 

 

The financial records of the Company shall be maintained in accordance with Required Accounting Practice and audited by the Accountants at the end of each fiscal year.

 

SECTION 7.04 Annual Financial Statements. 

 

As soon as practicable and in any event not later than [•] days following the end of each fiscal year of the Company, the Board shall cause audited financial statements prepared in accordance with Required Accounting Practice, together with a report thereon of the Accountants, to be prepared at the cost and expense of the Company and delivered to each Shareholder.

 

SECTION 7.05 Interim Financial Statements and Management Reports. 

 

(a)        As soon as practicable after the end of first quarterly period of each fiscal year, but in any event no later than [•] days after the end of such fiscal period, the Board shall cause to be prepared and delivered to each Shareholder (i) a statement of income and changes in financial position for such fiscal period, (ii) a balance sheet as of the end of such fiscal period and (iii) a statement comparing the financial results of the Company for such fiscal period with the budgeted or forecasted results for such period.

 

(b)         Within [•] days following the end of each month, the Company shall provide the Shareholders with monthly management reports for the prior month, in the form approved by the Board, and setting forth the information required by, or presented to and approved by, the Board, including variances from the O&M Budget and Operating Plan.

 

(c)         Within [•] days after the ECA Completion Date (as defined in the Common Agreement), and within [•] days after the end of each calendar quarter and year end thereafter, the Company shall prepare a summary operating report, in the form required by the Financing Documents, and setting forth the information required by, or presented to and approved by the Board, including compliance with and variances from the O&M Budget and Operating Plan.

 

SECTION 7.06 Inspection of Facilities and Records. 

 

Each Shareholder shall have the right, on reasonable notice to the Company and at all reasonable times during the Company's usual business hours, to inspect the facilities of the Company and audit, examine and make copies of the books of account and other records of the Company; provided if any inspection, audit or examination by any Shareholder is likely to interfere with normal operations of the Company, require that a significant amount of the Company's resources or the management's time be devoted to satisfy the requirements of the foregoing, or be implemented over a protracted period of time, such inspection, audit or examination shall require the approval of other Shareholders.  Such right may be exercised through any agent or employee of such Shareholder, or by any independent public accountant, engineer, lawyer or other consultant acting on behalf of such Shareholder pursuant to written instructions.  The Shareholder making the request shall bear all costs and expenses incurred by it in any inspection, examination or audit made at such Shareholder's request.

 

SECTION 7.07 Deposit and Withdrawal of Funds. 

 

Funds of the Company shall be deposited in such banks or other depositories as shall be designated from time to time by the Board.  All withdrawals from any such depository shall be made in accordance with the budgets and procedures adopted by the Board.

 

ARTICLE VIII

INDEMNIFICATION

 

SECTION 8.01 Indemnification by Shareholders. 

 

Each Shareholder (a "Shareholder Indemnitor") shall indemnify and hold harmless each other Shareholder, the Company, the affiliates of each other Shareholder and each of their successors and assigns, and the directors, officers, partners, employees, agents and representatives thereof (each, a "Shareholder Indemnitee") from and against all liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including attorneys' and consultants' fees and expenses) actually suffered or incurred by them (including any action, judicial or not, brought or otherwise initiated by any of them) (hereinafter, a "Loss"), arising out of or resulting from (i) the breach of any representation or warranty made by the Shareholder Indemnitor in this Agreement or (ii) the breach of any covenant or agreement by the Shareholder Indemnitor contained in this Agreement.  The provisions of this Section 8.01 shall survive termination of this Agreement, the withdrawal of any Shareholder, or any purchase or Transfer of the Shares of a Shareholder.

 

SECTION 8.02 Indemnification by the Company. 

 

Subject to Section 6.02, the Shareholders shall cause the Company shall, to the maximum extent permitted by law, to indemnify and hold harmless the members of the Board, the officers of the Company and all other persons exercising delegated authority on behalf of the Company (each, a "Company Indemnitee"; collectively with the Shareholder Indemnitees, the "Indemnitees"), from and against all Losses arising out of, relating to or resulting from the management or conduct of the business or affairs of the Company or the activities of the Company Indemnitees with respect thereto, whether or not a Company Indemnitee is or may be a party thereto (all such indemnifiable Losses together with all indemnifiable Losses described in clause (a) above, being "Indemnified Damages"), except to the extent that any such Indemnified Damages is determined by a court of competent jurisdiction to have resulted primarily from their gross negligence, fraud, bad faith, willful misconduct or knowing violation of law.  The provisions of this Section 8.02 shall survive termination of this Agreement, the withdrawal of any Shareholder or any purchase of the Shares of any Shareholder or Transfer made.

 

ARTICLE IX

TRANSFERS

 

SECTION 9.01 Transfer prior to the Completion Date.

 

Each Shareholder covenants and agrees not to Transfer its Shares, directly or indirectly, or to take any action leading to or likely to result in a Transfer prior to the Completion Date other than pursuant to Sections 9.02, 9.11, 9.12 or 10.02(f); provided that this Section 9.01 shall not apply in the event of a Transfer of one Common Share to a Shareholders' Director Nominee, or a Transfer of Capital Stock from a Shareholder to its Affiliate Sponsor or any of such Affiliate Sponsor's wholly-owned subsidiaries.

 

SECTION 9.02 Right of First Offer. 

 

In the event that any Shareholder (the "Selling Shareholder") desires to sell, assign, or otherwise transfer Shares to a third party (other than pursuant to any foreclosure by the Lenders on a pledge of Shares pursuant to the Financing Documents), the Selling Shareholder shall grant the other Shareholders (the "Non-Selling Shareholders") a right of first offer in respect of such Shares as follows:

 

(a)         The Selling Shareholder shall first offer all of the Shares that it desires to transfer (the "Offered Shares") to the Non-Selling Shareholders, by written notice, specifying the price and the other terms and conditions of its intended sale, assignment and transfer of the Offered Shares.  The delivery of such notice shall be deemed to be an offer to sell to each Non-Selling Shareholder a portion of the Offered Shares determined on a pro rata basis based on the ratio of the number of Shares then owned by such Non-Selling Shareholder to the number of Shares then owned by all the Non-Selling Shareholders; provided, however, that if any Non-Selling Shareholder does not accept such offer for all of such portion (the "Non-Accepting Shareholder"), the portion not so accepted shall be deemed to have been offered to each Non-Selling Shareholder (excluding the Non-Accepting Shareholder) on a pro rata basis based on the ratio of the number of Shares then owned by such Non-Selling Shareholder to the number of Shares then owned by all the other Non-Selling Shareholders (excluding the Non-Accepting Shareholder). 

 

(b)         The Non-Selling Shareholders shall have [•] ([•]) days (the "Offer Period") from receipt of the written offer, in which to elect to accept such offer by giving written notice thereof to the Selling Shareholder. The Selling Shareholder and Non-Selling Shareholders shall then have [•] ([•]) days from the Selling Shareholder's receipt of said acceptance notice (the "Post-offer Period") within which to enter into an agreement for the Non-Selling Shareholders' purchase of the Offered Shares.  No Non-Selling Shareholder shall be entitled to acquire any of the Offered Shares unless all of the Offered Shares are acquired by himself or one or more other Non-Selling Shareholders at the same time. 

 

(c)         In the event that the Non-Selling Shareholders fail to either accept the offer within the Offer Period or reach an agreement with the Selling Shareholder for the transfer of the Offered Shares during the Post-offer Period, the Selling Shareholder may, within a period of [•] ([•]) days thereafter (the "Sale Period"), sell, assign or otherwise transfer the Offered Shares to a third party under such terms and conditions which shall in no case be more favorable to the third party than those to the Non-Selling Shareholders; provided, that (i) such third party is a Permitted Transferee and (ii) the sale, assignment or other transfer of the Offered Shares to such third party satisfies the conditions specified in Section 9.03.

 

(d)         After the Sale Period without the Offered Shares being sold in accordance with this Section 9.02, any subsequent sale of the Offered Shares must comply anew with the conditions set forth herein.

 

SECTION 9.03 Transfer on or after the Completion Date. 

 

On or after the Completion Date, any of the Shareholders may, upon prior written notice to the other Shareholders, Transfer Shares to a Permitted Transferee upon satisfaction of the following conditions: (a)(i) such Transfer shall not violate or conflict with any law to which the Transferring Shareholder, the Permitted Transferee, the Company or the Shares are subject, or violate, conflict with or result in an event of default under the terms and conditions of any Project Document or Financing Document; (ii) the Transferring Shareholder and the Permitted Transferee shall have obtained all consents and approvals of all Persons required in connection with such Transfer; (iii) the Share Ratio of the Permitted Transferee after giving effect to such Transfer shall not be less than [•] %; and (iv) the Share Ratio of the Transferring Shareholder after giving effect to such Transfer, if greater than  [•] %, shall not be less than [•] %; and (b) on or prior to the date [•] Business Days prior to the effectiveness of such Transfer, (i) the Transferring Shareholder shall deliver to the Secretary of the Company a certified copy of the instrument purporting to effect such Transfer, in form and substance reasonably satisfactory to the Company, and duly executed and delivered by the Transferring Shareholder and the Permitted Transferee; and (ii) the Permitted Transferee, unless it is already a Party to this Agreement, shall execute and deliver to each Shareholder and to the Company, an agreement, in form and substance reasonably satisfactory to the Company and the Non-Transferring Shareholders, pursuant to which the Permitted Transferee shall ratify and confirm this Agreement, agree to be bound by the terms hereof and thereof, assume, from and after the effective date of such Transfer, all of the obligations and liabilities of the Transferring Shareholder (in proportion to the number of Shares which the Permitted Transferee acquires).

 

SECTION 9.04 Transfer Notice. 

 

Each notice of Transfer to be given by a Shareholder pursuant to Section 9.03 or under Section 9.02 to the extent the requirements of Section 9.03 apply with respect to any Transfer to be effected pursuant to Section 9.02, shall set forth (i) the name and address of each proposed transferee or purchaser of the Shares, (ii) the name and address of the Transferring Shareholder, (iii) the number of Shares proposed to be Transferred by the Transferring Shareholder, (iv) the aggregate number of Shares held of record as of the close of business on the date of such notice by the Selling Shareholder and (v) the proposed date of the Transfer.

 

SECTION 9.05 [AAA] Shares. 

 

Notwithstanding anything in Section 9.01 or 9.02 to the contrary, [DDD] covenants and agrees not to take any action, directly or indirectly, leading to or likely to result in [DDD] owning less than a [•] % direct or indirect beneficial ownership interest in the Company, whether prior to or after the Completion Date, without the prior written consent of a simple majority of the aggregate Share Ratios of the other Shareholders.

 

SECTION 9.06 Pledges Permitted; Involuntary Transfers. 

 

(a)         Each Shareholder covenants and agrees that it shall not pledge or otherwise encumber its Shares to, or in favor of, any financial institution or other Person except in accordance with the Financing Documents.

 

(b)        In the event any or all of a Shareholder's interest in the Company is transferred involuntarily, directly or indirectly, by operation of law or otherwise, such Shareholder shall give written notice (an "Involuntary Transfer Notice") promptly after receiving knowledge thereof, and in any case within [•] days of such involuntary Transfer, to the other Shareholders, with a copy to the transferee, stating the fact that the involuntary Transfer occurred, the reason therefor, the date of such Transfer, the name and address of the transferee and the interest acquired by such transferee.

 

SECTION 9.07 Legends. 

 

All certificates evidencing Shares shall have endorsed thereon in bold type the following legend:

 

THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SHAREHOLDERS' AGREEMENT, DATED AS OF [•], 20[•] , AS THE SAME MAY BE AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT THE REGISTERED OFFICE OF THE COMPANY.  NO TRANSFER OF SUCH SECURITIES SHALL BE RECORDED ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH.

 

SECTION 9.08 Effect of Permitted Transfer. 

 

Upon the consummation of any Transfer to a Permitted Transferee (unless such Permitted Transferee is already a Shareholder), such Permitted Transferee shall be admitted as a Shareholder in substitution for, or in the case of a partial Transfer in addition to, the Transferring Shareholder, upon execution and delivery of the agreements referred to in Section 9.02.  Except as provided in this Section 9.08, no such Transfer shall give rise to a right in any transferee to become a Shareholder.  Upon the Transfer of all its interest in the Company, a Shareholder shall have no further interest in the Company or rights under this Agreement except its rights under Sections 8.01, 8.02 and 14.09; provided that no Transfer shall relieve the Transferring Shareholder of liability under this Agreement for matters arising or events occurring prior to the completion of the Transfer.

 

SECTION 9.09 Effect of Prohibited Transfer.

 

Any Transfer of Shares in violation of the terms of this Agreement shall be void and the Company shall not give any effect in the stock transfer registry or otherwise to such purported Transfer. 

 

SECTION 9.10 Shares of the Company.

 

The provisions of this Agreement relating to Shares shall apply mutatis mutandis to any shares or securities into which the Shares may be converted, changed, reclassified, redivided, redesignated, redeemed, subdivided or consolidated; to any Shares or other securities that are received by a Shareholder as a stock dividend or distribution payable in Shares or other securities of the Company; and to any Shares or other securities of the Company or of any successor or continuing corporation to the Company that may be received by the Shareholders in a reorganization, amalgamation, consolidation or merger, statutory or otherwise.

 

SECTION 9.11  LTU Event Refinancing.

 

In the event that (i) as a result of the occurrence of an LTU Event (other than as a result of a failure by [EEE] or [FFF] to fund, under the Funding and Support Agreement to which it is a party, the payment of any fees payable to the [KKK] under the PPU), [DDD] has repaid in full all outstanding principal of the Senior Loans, together with accrued interest thereon and all other amounts due under the Financing Documents and all commitments of the Senior Lenders thereunder have terminated and (ii) [DDD] is unable to procure third party lenders(s) to provide financing in an amount equal to the sum of the aggregate principal amount of Senior Loans so repaid by [DDD] and the unutilized commitments of Senior Lenders under the Financing Documents immediately prior to the LTU Event (the "LTU Refinancing") on terms which are approved by all of the Shareholders within a period of [•] calendar days from the occurrence of an LTU Event (the "LTU Refinancing Period"), (A) each Shareholder other than [AAA] (a "Non-[DDD] Shareholder") shall have the option, during the period of [•] days commencing on the date immediately following the last day of the LTU Refinancing Period, to (1) put to [AAA] all of the Shares held by it at a price equal to the Option Price for such Shares held by such Non-[DDD] Shareholder and (2) require [AAA] to purchase from such Non-[DDD] Shareholder all Shareholder advances which have not on or prior to such date been converted to Capital Stock and the Subordinated Shareholder Loans made by such Non-[DDD] Shareholder at a price equal to the aggregate outstanding principal amount of such Shareholder advances and the aggregate outstanding principal amount of such Subordinated Shareholder Loans and all accrued and unpaid interest thereon (the "Additional Contribution Amount"), as recorded in the books of the Company or otherwise evidenced by a Shareholder Subordinated Note or acknowledgements of receipt of funds with respect to Shareholder advance issued by the Company by delivering a written notice to [AAA] and (B) [AAA] or [DDD] (but not both) shall have the option to (1) call all of the Shares owned by the Non-[DDD] Shareholders for purchase at a price equal to the Option Price and (2) purchase all Shareholder advances which have not on or prior to such date been converted to Capital Stock and the Subordinated Shareholder Loans made by such Non-[DDD] Shareholder at a price equal to the Additional Contribution Amount during such [•] day period by delivering a written notice to each Non-[DDD] Shareholder.  Upon the exercise of such option during such [•]-day period by a Non-[DDD] Shareholder or [AAA] (or [DDD]), as the case may be, and provided that all outstanding principal of the Senior Loans together with accrued interest thereon and all other amounts due under the Financing Documents have been repaid in full, [AAA], within [•] Business Days of the date of such notice, shall pay the Option Price and the Additional Contribution Amount to such Non-[DDD] Shareholder, or, in the case of [AAA]'s exercise of its call option, to each Non-[DDD] Shareholder.  If for any reason, including any failure of all outstanding principal of the Senior Loans together with accrued interest thereon and all other amounts due under the Financing Documents to be repaid in full, the Option Price and the Additional Contribution Amount are not paid within such [•] Business Days, interest shall accrue thereon and be payable by [AAA] for each day from the last day of such [•] Business Day period to the date of payment in full by [AAA] at a rate per annum equal to LIBOR plus [•]%.  Notwithstanding the foregoing, the Shareholders agree that if [DDD] provides LTU Refinancing on terms which are substantially the same as the terms and conditions of the financing provided for in the Base Case Financial Model and which, in the reasonable judgment of the other Shareholders, do not have a material adverse effect on the Project or the economic interest or risk profile of the Shareholders in the Project, the approval of such LTU Refinancing shall not be unreasonably withheld.  Each Sponsor agrees severally but not jointly with the other Sponsors, to cause its Affiliate Shareholder to perform its obligations in accordance with this Section 9.11.  

 

SECTION 9.12 Financing Failure..

 

In the event that the Company fails to achieve Initial Disbursement on or before the date [•] calendar days after the Effective Date for any reason other than negligence, bad faith act or omission or a breach by any Non-[DDD] Shareholder or any Non-[DDD] Shareholder's Affiliate Sponsor of the terms of this Agreement or any other Project Document or Financing Document to which such Non-[DDD] Shareholder or Affiliate Sponsor is a party, each Non-[DDD] Shareholder shall have the option at any time prior to the Initial Disbursement to require [AAA] to purchase from such Non-[DDD] Shareholder the outstanding principal amount of Shareholder advances which have not been converted to Capital Stock made by such Non-[DDD] Shareholder by providing [AAA] with written notice requesting such purchase.  [AAA] shall remit such payment for such Shareholder advances within [•] Business Days of the date of such notice (provided that the Initial Disbursement shall have not then occurred), whereupon, notwithstanding any other provision of this Agreement such Non-[DDD] Shareholder shall have no further obligation to fund any Project Costs until the Company achieves Initial Disbursement and [AAA] shall be obligated to fund all Project Costs (other than any Project Costs which any other Non-[DDD] Shareholder that has not exercised the aforesaid option is obligated to fund) until the date of the Initial Disbursement.  In the event that the Company fails to achieve the Initial Disbursement on or before the last day of the Availability Period for any reason other than negligence, bad faith act or omission or a breach by any Non-[DDD] Shareholder or any Non-[DDD] Shareholder's Affiliate Sponsor of the terms of this Agreement or any other Project Document or Financing Document to which such Non-[DDD] Shareholder or Affiliate Sponsor is a party, each Non-[DDD] Shareholder shall have the option to put to [AAA] all of the Shares, Shareholder advances and Subordinated Shareholder Loans held by it at a price equal to the Option Price plus the Additional Contribution Amount by providing [AAA] with written notice thereof within a period of  [•] calendar days after the last day of the Availability Period.  [DDD] agrees to cause [AAA] to perform its obligations in accordance with this Section 9.12.

 

 

SECTION 9.13 Completion of Transfers.

 

The Shareholders shall exercise their best efforts to procure all necessary consents from the Lenders required under the Financing Documents as well as any other consents (if any) required to complete the Transfer of Shares contemplated by this Article 9 or Section 10.02(f) within [•] ([•]) days after the date of the (i) entry into an agreement for the purchase of the Offered Shares in the case of Section 9.02, (ii) delivery of written notice by any Shareholder to the other Shareholders in the case of a proposed sale to a Permitted Transferee in the case of Section 9.03, (iii) delivery by any Shareholder to the other Shareholders of a notice exercising the option to put the Shares of such Shareholder to [AAA] in the case of Section 9.11 or delivery by [AAA] or [DDD], as the case may be, to the Non-[DDD] Shareholders of a notice exercising the option to call the Shares of the Non-[DDD] Shareholders in the case of Section 9.11, (iv) delivery by any Shareholder to the other Shareholders of a notice exercising the option to put the Shares of such Shareholder to upon a Financing Failure in the case of Section 9.12, and (v) delivery to the Defaulting Shareholder of a written notice in accordance with Section 10.02(f)(i), in the case of Section 10.02(f).  The closing of any such Transfer of Shares shall occur at the principal office of the Company on the date [•] days after the consents referred to above have been obtained or, if no such consents are required, [•] days after the relevant date referred to in clauses (i) to (v) of this Section 9.13, or on such other date and at such other location as the Shareholders may mutually agree, subject, as appropriate, to any necessary delay caused by the obtaining of applicable governmental and other consents and the determination of the Fair Market Value, if applicable, except that if the closing date for such Transfer falls on a day other than a Business Day, then the closing shall be held on the next succeeding Business Day at such location.  At the closing, the Transferring Shareholder shall deliver:  (i) a deed of conveyance in favor of the Person to whom such Shares are to be Transferred (the "Transferee") in respect of such Shares, (ii) the original stock certificates evidencing such Shares, and (iii) a copy of the tax clearance certificate issued by [Name of the Bureau] of [Name of the Country] with respect to the payment of the applicable capital gains tax (if any) and documentary stamp taxes on the transfer of such Shares which shall be paid by the Shareholder transferring Shares in the case of Sections 9.02, or 9.03; [AAA] in the case of Sections 9.11 or 9.12; and the Defaulting Shareholder in the case of Section 10.02(f).  Against the delivery of the aforementioned documents, the Transferee shall pay to the Transferring Shareholder the applicable purchase price. Any applicable capital gains tax and documentary stamp tax shall be paid by the Transferring Shareholder in the case of Sections 9.02 or 9.03; [AAA] in the case of Section 9.11 or 9.12; or, the Defaulting Shareholder in the case of Section 10.02(f).  The fees and expenses of the investment bank or accounting firm selected to determine Fair Market Value shall be paid by Defaulting Shareholder in the case of Section 10.02(f).  The Transferee shall remit such payment amount in Dollars by wire transfer in immediately available funds to an account designated by the Transferring Shareholder. 

 

ARTICLE X

DEFAULT

 

SECTION 10.01             Default.

 

(a)         Default Notice.  If a Shareholder shall fail: (i) (A) to make a Contribution pursuant to Section 5.03, 5.04, or 5.05 or (B) to vote its Common Shares in accordance with the provisions of Section 2.02 (each, a "Major Obligation") or (ii) (A) to cause the applicable Person to deliver Performance Support pursuant to Section 5.12 of this Agreement or (B) to perform any other obligation hereunder (each, a "Lesser Obligation"), the Company or any other Shareholder may give to the defaulting Shareholder written notice thereof (a "Default Notice") specifying the particulars of the default to each of the other Shareholders (collectively, the "Non-Defaulting Shareholders") and the Company.  The failure to send a copy of the Default Notice to a Non-Defaulting Shareholders or the Company shall not affect the validity of the Default Notice.

 

(b)         Default Interest.  If a Shareholder does not make any payment of any amount in cash on or prior to the date required hereunder, including, any payment of a Contribution in cash on or prior to the date specified in the written request for such any Contribution described in Section 5.08(b), such Shareholder shall pay interest to the Company on the amount of such payment obligation for each day from the date such payment was required to be made to the date such payment (together with accrued interest) shall be paid at a rate per annum equal to LIBOR plus [•] %. 

 

SECTION 10.02             Procedure.

 

(a)  Cure Period or Arbitration.  A Shareholder who has received a Default Notice concerning a Major Obligation shall have [•] days from the date of the Default Notice to either cure the alleged default or submit the issue of whether it is in default to dispute resolution in accordance with Sections 13.02 and 13.03.  A Shareholder who has received a Default Notice concerning a Lesser Obligation shall have [•] days from the date of the Default Notice to either cure the alleged default or submit the issue of whether it is in default to dispute resolution in accordance with Sections 13.02 and 13.03.  If the Parties mutually agree or the arbitrators determine that such Shareholder is in default, then such Shareholder shall have a further period of  [•] days, in the case of a default in the performance of a Major Obligation, or [•] days, in the case of a default in the performance of a Lesser Obligation, after such mutual agreement is reached or the arbitrator has rendered its decision, as the case may be, to cure such default.

 

(b)         Curing Default.  A Shareholder that has received a Default Notice shall be deemed to have cured a default under this Article X when, prior to the end of the period for cure as provided in Section 10.02(a), either:  (i) it has fulfilled its material obligations including its obligations to make all payments (together with interest thereon at LIBOR plus [•] % for the period of the default) then due or (ii) if the default is incapable of being cured, such Shareholder has taken such steps reasonably acceptable to the other Shareholders and/or the arbitrators (if applicable) to remedy any damage caused by such default.

 

(c)         Defaulting Shareholder.  A Shareholder shall be considered a "Defaulting Shareholder" if:  (i) it fails to remedy the default or fails to submit the issue of whether it is in default to dispute resolution in accordance with Sections 13.02 and 13.03, in each case within the time periods set forth in Section 10.02(a) for such remedy or submission to arbitration, or (ii) after challenging a Default Notice, the Parties mutually agree or the arbitrators appointed pursuant to Section 13.03 determine that such Shareholder is in default and it fails to remedy the default within the subsequent cure period.

 

(d)         Effect of Default.  A Defaulting Shareholder's rights as a Shareholder, including any right to receive dividends and other distributions, and any right to vote with respect to any matters, directly or indirectly through any member of the Board nominated by such Defaulting Shareholder, shall be suspended until such time as the default is cured, and the Defaulting Shareholder shall not attempt to exercise any such rights, until such time as the default is cured; and (i) for purposes of any Board meeting convened during the continuance of such default, (A) the quorum required for such meeting shall be the attendance of the majority of the Directors appointed by the Non-Defaulting Shareholders which complies with Section 4.02(f), provided the requirements of Section 4.02(f) shall not apply with respect to [BBB] or [CCC], as the case may be, in the event such Shareholder is a Defaulting Shareholder, and (B) the Directors appointed by a Non-Defaulting Shareholder shall have such percentage of votes equal to the proportion that the number of such Non-Defaulting Shareholders' Common Shares bears in relation to the aggregate number of Common Shares then held by all Non-Defaulting Shareholders and (ii) for purposes of any Shareholders' meeting convened during the continuance of such default, (A) the quorum required for such meeting shall be the attendance of Non-Defaulting Shareholders holding at  least [•] % of the total issued and outstanding Common Shares held by all Non-Defaulting Shareholders which complies with Section 4.01(b), provided the requirements of Section 4.01(b) shall not apply with respect to [BBB] or [CCC], as the case may be, in the event such Shareholder is a Defaulting Shareholder and (B) with respect to matters for which a Shareholders' resolution is required pursuant to Section 4.08  the Defaulting Shareholder's right to vote shall not be suspended and the Defaulting Shareholder shall be required to vote his Shares in the same manner as the majority of the Shares held by Non-Defaulting Shareholders.  In addition, the Company's obligation to make payments of principal, interest or otherwise in respect of Subordinated Shareholder Loans or to make redemption payments in respect of any redeemable Capital Stock held by a Defaulting Shareholder, its Sponsor Affiliate or any Affiliate of its Sponsor Affiliate shall be suspended until such time as the default is cured.  The Share Ratio of such Defaulting Shareholder shall not be taken into account in calculating Share Ratios of the Shareholders for any purpose other than for the purpose of determining amounts due under Article V.  A Defaulting Shareholder shall remain liable for all obligations and liabilities (including obligations to make Contributions) accruing prior to, and during, the period of time such Shareholder is a Defaulting Shareholder, including any such liabilities maturing thereafter but originating from actions taken prior thereto.

 

(e)         Repayment.  The Defaulting Shareholder shall repay to the Company any dividends or other distributions that it received subsequent to its receipt of a Default Notice, plus interest payable at LIBOR plus [•]%, which interest shall accrue from the day such Defaulting Shareholder receives such dividends or distribution. 

 

(f)         Mandatory Transfer of Shares.  Subject to the requirements of the Financing Documents, at any time during the period of time that a Shareholder is a Defaulting Shareholder due to a default in the performance of a Major Obligation, (i) the Board shall, upon instruction from all of the Non-Defaulting Shareholders, on [•] days' prior written notice to such Defaulting Shareholder, require the Defaulting Shareholder to either (A) Transfer all of its Shares, Shareholder advances and Subordinated Shareholder Loans to the Non-Defaulting Shareholders proportionately among the Non-Defaulting Shareholders, according to their relative Share Ratio or as otherwise agreed by the Non-Defaulting Shareholders, or, except in the case where the Defaulting Shareholder is a Shareholder whose Share Ratio is less than [•] %, (B) acquire all of the Shares, Shareholder advances and Subordinated Shareholder Loans owned or held by the Non-Defaulting Shareholders or (ii) if the Non-Defaulting Shareholders are not in unanimous agreement with respect to Transfer of Shares as contemplated in foregoing clause (i) of this Section 10.02(f), the Board shall, upon the request of the Non-Defaulting Shareholders holding not less than the majority of the aggregate Share Ratio of the Non-Defaulting Shareholders, require the Defaulting Shareholder to pay, as liquidated damages and not as penalty (without prejudicing the rights and remedies available to Non-Defaulting Shareholders and the obligation of the Defaulting Shareholder to pay default interest on amounts due)), an amount equal to [•] % of the highest Price Basis to the Non-Defaulting Shareholders pro rata according to their relative Share Ratios; provided, however, that a Non-Defaulting Shareholder shall not be entitled to instruct the Board to exercise the remedies set forth in this Section 10.02(f) unless prior to such instruction, such Non-Defaulting Shareholder shall have (i) given not less than [•] days prior written notice to all other Non-Defaulting Shareholders regarding its intention to issue such instruction and (ii) made reasonable efforts to reach a consensus with other Non-Defaulting Shareholders with respect to the exercise of such remedies through good faith discussions for a period not less than [•] days or such longer period as consented to by such Non-Defaulting Shareholder.  Any Transfer of Shares required under this Section 10.02(f) shall, subject to the following and Section 9.13, take place on such terms and conditions as the Board shall determine. The purchase price of such Defaulting Shareholder's Shares shall be [•] % of the lowest Price Basis multiplied by such Defaulting Shareholder's Share Ratio and the purchase price of the Defaulting Shareholder's Shareholder advances and Subordinated Shareholder Loans shall be [•] % of the face value thereof plus, with respect to Subordinated Shareholder Loans, [•] % of accrued and unpaid interest thereon.  The purchase price of the Non-Defaulting Shareholders' Shares shall be [•] % of the highest Price Basis multiplied by the Non-Defaulting Shareholders' aggregate Share Ratio and the purchase price of the Non-Defaulting Shareholders' Shareholder advances and Subordinated Shareholder Loans shall be [•] % of the face value thereof plus, with respect to Subordinated Shareholder Loans, [•] % of accrued and unpaid interest thereon.  The "Price Basis" shall be (1) the net asset value of the Company, (2) the Fair Market Value of the Shares or (3) the par value amount of paid-in-capital for the Shares on the date the Defaulting Shareholder became a Defaulting Shareholder.  Fair Market Value shall be determined by an internationally recognized investment bank or accounting firm selected by the Board.  The Defaulting Shareholder shall become a Former Shareholder on the date that its Shares are Transferred.  Notwithstanding any other provision of this Agreement to the contrary, in the event that [BBB] is the Defaulting Shareholder and such default is attributable to an act or omission of only one of its Affiliate Sponsors (the "Defaulting Affiliate Sponsor"), (i) the amount of liquidated damages payable under this Section 10.02(f) shall be equal the amount of damages calculated as set forth above multiplied by a percentage equal to the Defaulting Affiliate Sponsor's beneficial ownership of [BBB] and (ii)  the number of Shares to be Transferred pursuant to this Section 10.02(f) shall be limited to the total number of Shares of the Defaulting Shareholder or Non-Defaulting Shareholder, as the case may be, multiplied by a percentage equal to the Defaulting Affiliate Sponsor's beneficial ownership of [BBB].  Notwithstanding the foregoing, the purchase of any Subordinated Shareholder Loans from [DDD] or [AAA] shall include the purchase, on the same terms, of any Subordinated Shareholder Loans held by [III]. 

 

(g)         Sponsor Obligation.  Each Sponsor agrees severally but not jointly with the other Sponsors, to cause its Affiliate Shareholder to perform its obligations in accordance with this Section 10.02; provided however that the maximum liability of [EEE] or [FFF], as the case may be, with respect to amounts payable by [BBB] hereunder shall be limited to their then respective percentage ownership of [BBB] multiplied by the amount payable by [BBB], and provided further that [EEE] and [FFF] shall be severally and not jointly liable for all expenses (including, without limitation, fees and expenses of counsel) incurred by Shareholders in enforcing any rights against [EEE] and [FFF], respectively, under this 10.02(g).

 

ARTICLE XI

TERMINATION

 

SECTION 11.01             Term.

 

This Agreement shall become effective on the date hereof when signed by each of the Parties, and shall remain in effect until earlier of (i) the date on which the Shareholders unanimously decide to terminate this Agreement and (ii) the date on which [•] % of the total outstanding and issued Capital Stock is owned by a single Shareholder.

 

ARTICLE XII

REPRESENTATIONS AND WARRANTIES

 

SECTION 12.01             Representations and Warranties of Each Shareholder. 

 

As an inducement to the other Parties to enter into this Agreement, each Shareholder represents and warrants, as to itself alone, to the other Parties that as of the date hereof:

 

(a)         Organization and Authority.  It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and has full power, authority and legal right (including all governmental licenses, permits and other approvals) to own, lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, and to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby.  The execution and delivery of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly and validly authorized and approved by all necessary action on its part.

 

(b)         Execution and Delivery.  This Agreement has been duly and validly executed and delivered by its legal representative and (assuming due execution and delivery by the other Parties) constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement.

 

(c)         No Conflict.  The execution and delivery of, and performance by it of its obligations under, this Agreement:

 

(i)          do not and shall not result in a violation of, or be in conflict with, any provision of its organizational or authorizing documents, result in a violation of, or be in conflict with, any term or provision of, any law, governmental rule, judgment or order of any court or governmental authority applicable to or binding upon it or any of its property; and

 

(ii)         do not conflict with, violate or constitute a breach of or default under, or result in the imposition or creation of any Encumbrance under, any term or condition of any contract, agreement or other instrument to which it is a party or by which it or any of its properties or assets are bound.

 

(d)         No Default.  It is not in default under any mortgage, loan agreement, deed of trust, indenture or other agreement evidencing indebtedness to which it is party or by which it is bound, or in violation of, or in default under, any governmental rule which default or violation would materially and adversely affect its ability to perform its obligations under this Agreement.

 

(e)         Consents and Approvals.  Except as otherwise disclosed in Schedules 6.8.1 and 6.8.5 of the Common Agreement, the due execution, delivery and performance of this Agreement by it do not and shall not require any consent, approval, authorization, or other order of, or action by, any governmental authority or regulatory body or any other third party, other than such consents, approvals, authorizations and orders as have been obtained by it on or prior to the date hereof, which remain in full force and effect on the date hereof.

 

(f)         No Litigation.  There is no claim, action, suit, proceeding, inquiry or investigation pending or, to the best of its knowledge, threatened against it before or by any governmental authority or regulatory body, which purports to affect the transactions contemplated hereby or materially and adversely affect its ability to perform its obligations under this Agreement, nor, to the best of its knowledge, is there any reasonable basis for any such claim, action, suit, litigation, proceeding or investigation.

(g)         No Sovereign Immunity.  It is subject to civil and commercial law with respect to its obligations hereunder, and its execution, delivery and performance of this Agreement constitute private and commercial acts rather than public or governmental acts.  Neither it nor any of its property has any immunity from the jurisdiction of any court or from set-off or any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of any jurisdiction relevant to the transactions contemplated hereby.

 

(h)         Proper Legal Form.  This Agreement is in proper legal form under the laws of its jurisdiction of formation for the enforcement thereof against it, and to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement in its jurisdiction of formation, it is not necessary that this Agreement or any other document be filed or recorded with any court or other authority in its jurisdiction of formation or that any stamp or similar tax be paid on or in respect of this Agreement in its jurisdiction of formation, except as otherwise provided herein.

 

ARTICLE XIII

APPLICABLE LAW; DISPUTE RESOLUTION

 

SECTION 13.01             Applicable Law. 

 

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

 

SECTION 13.02             Amicable Settlement.

 

If any dispute, controversy, conflict or difference of any kind whatsoever other than with respect to the matters referred to in Sections 3.03(c) and 4.12 (a "Dispute") shall arise between any Party and any other Party or Parties in connection with this Agreement or the performance or non-performance of the obligations set forth herein, senior officers of the Affiliate Sponsors shall attempt diligently and in good faith, for a period of 60 days after the receipt by a Party of a written notice from any other Party of such Dispute, to settle such Dispute in the first instance by mutual discussion of the Parties.  The period for settlement of a particular Dispute may be extended upon mutual agreement of the Parties

 

SECTION 13.03             Arbitration Procedures.

 

(a)         If the Parties fail to mutually agree on a resolution of the Dispute after [•] days unless such period is extended by mutual agreement of the Parties, any and all Disputes arising out of or in connection with this Agreement or its performance (including the validity of this Agreement) shall be settled by arbitration in Singapore by a three member arbitration tribunal in English under the Rules of Arbitration and Conciliation of the International Chamber of Commerce ("ICC Rules").

 

(b)         The three members of the tribunal shall be appointed in accordance with the procedures set out in the ICC Rules regarding the appointment of arbitrators.

 

(c)         The arbitral proceeding shall accord to each of the Parties the right-of- cross-examination of witnesses, the right to provide witnesses including expert witnesses, and the right to make both written and oral submissions.

 

(d)         In addition to any other remedies ordered or awarded by the arbitrators, the arbitrators shall have the power to order specific performance of this Agreement and any other appropriate injunctive relief.  Each Party hereby irrevocably waives, to the fullest extent that it may do so under Applicable Law, any defense based on the adequacy of a remedy at law  that may be asserted as a bar to the remedy of specific performance in any action brought against such Party for specific performance of this Agreement by any other Party or by the Company or for any of their benefit by a receiver, custodian or trustee appointed for the Company or in respect of all or a substantial part of the Company's assets under the bankruptcy, insolvency or similar laws of any  jurisdiction to which the Company or its assets are subject.

 

(e)         The arbitral award made and granted by the arbitrators shall be final, binding and incontestable and may be used as a basis for judgment thereon in [Name of the Country], [Name of the Country] or elsewhere.  All costs of arbitration (including without limitation those incurred in the appointment of the three members of the arbitration board) shall be apportioned by the arbitral award.

 

(f)         Notwithstanding any other provision of this Agreement, to the extent that common issues of fact or law relate to this Agreement as well as the Subscription Agreement, the [BBB] Shareholders’ Agreement, the Reimbursement Sharing Agreement and any other agreement in respect of the Project to which two or more of the Parties execute and deliver after the date hereof (collectively, the “Related Agreements”) and such issues cannot be amicably resolved, each of the Parties agree to arbitrate such issues in a common proceeding filed at the request of the Parties.  To the extent that one or more proceedings are pending under this Agreement and another Related Agreement, and it becomes evident that issues of fact or law relate to both agreements, the Parties agree to use their best efforts to cause, if there are multiple proceedings pending at such time, any such pending proceedings to be consolidated into one proceeding, or, if only an arbitration proceeding is pending under one such agreement at such time, for the Parties under the other agreement to be joined into that proceeding.  If the arbitrators or the ICC do not permit such consolidation or joinder, the Parties agree that any such pending proceeding shall be terminated by agreement of the relevant Parties, and that a new joint arbitration proceeding shall be commenced by such Parties.

 

 

 

SECTION 13.04             Court Action. 

 

None of the Parties shall be entitled to commence or maintain any action in a court of law upon any matter in dispute arising from or in relation to this Agreement except for the application for any interim relief necessary in aid of arbitration or enforcement of an arbitral award granted pursuant to this Article XIII in which case the Parties agree that such application for interim relief shall be made only before a court of competent jurisdiction in [Name of the Country].

 

SECTION 13.05             Continued Performance during Arbitration.

 

During the period of submission to arbitration and thereafter until the granting of the arbitral award, the Parties shall, except in the event of termination, continue to perform all their obligations under this Agreement without prejudice to a final adjustment in accordance with the said award.

 

SECTION 13.06             Survival. 

 

The provisions contained in this Article XIII shall survive the termination or expiration of this Agreement.

 

ARTICLE XIV

MISCELLANEOUS PROVISIONS

 

SECTION 14.01             Entire Agreement. 

 

This Agreement (together with any documents described in or expressed to be entered into in connection with this Agreement) constitutes the entire agreement among the Parties concerning the subject matter of this Agreement and supersedes any previous agreements or understandings (whether written or oral) among the Parties or representations by any Party to any other Party (whether written or oral) concerning the subject matter of this Agreement.

 

SECTION 14.02             Amendments and Other Modifications. 

 

No amendment, modification or other variation of any of the terms of this Agreement shall be effective unless it is made or confirmed in writing and signed by or on behalf of each of the Parties.

 

SECTION 14.03             No Waiver.

 

No waiver of any provision of this Agreement shall be effective unless made in writing and signed by each Party that is waiving the rights or against whom the waiver is claimed, and each such waiver shall be effective only in the specific instance and for the specified purpose for which it was given.  No failure on the part of any Party to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy.  No waiver of any right, power or remedy or of any breach of any Agreement terms shall be deemed to be a waiver of any other right, power or remedy or of any later breach.  The failure of any Party to perform its obligations hereunder shall not release any other Party from the performance of its obligations hereunder.

 

SECTION 14.04             Notices. 

 

(a)         All notices and other communications provided for or permitted hereunder shall be in writing in the English language and shall be delivered by hand, telecopied, or sent by overnight or international courier service or by certified or registered mail, return receipt requested, postage prepaid, in each case addressed in the manner set forth below (or in such other manner for a Party as shall be specified in a notice given in accordance with this Section 14.04):

 

(i)          If to [AAA]:

Attn:

 

[Address of AAA ]

[Phone number of AAA]

[Fax number of AAA]

 

(ii)         If to [BBB]:

Attn:

 

[Address of BBB ]

[Phone number of BBB]

[Fax number of BBB]

 

(iii)        If to [CCC]:

Attn:

 

[Address of CCC ]

[Phone number of CCC]

[Fax number of CCC]

 

(iv)        If to [DDD]:

Attn:

 

[Address of DDD ]

[Phone number of DDD]

[Fax number of DDD]

 

(v)         If to [EEE]:

Attn:

 

[Address of EEE ]

[Phone number of EEE]

[Fax number of EEE]

 

(vi)        If to [FFF]:

Attn:

 

[Address of FFF ]

[Phone number of FFF]

[Fax number of FFF]

 

(vii)       If to [GGG]:

Attn:

 

[Address of GGG ]

[Phone number of GGG]

[Fax number of GGG]

(viii)    If to the Company:

Attn:

 

[Address of HHH ]

[Phone number of HHH]

[Fax number of HHH]

 

(b)         All such notices and communications shall be deemed to have been received: (i) if delivered by hand, at the time of delivery; (ii) if delivered by courier or by certified or registered mail, on the third and seventh day, respectively, as the case may be, after such notice is deposited with the courier or mail service, courier fee or postage prepaid, addressed as provided above; or (iii) if telecopied (with transmission confirmation notice received), at the time of transmission; provided, however, that in each case, if such time of deemed receipt is not a Business Day or is not within the hours during which business is normally conducted by the recipient Party, then such notice shall be deemed received on the next Business Day.

 

SECTION 14.05             Further Assurances. 

 

If any Party reasonably determines that any further instruments or any other acts or things are necessary or desirable to carry out the terms of this Agreement, the other Parties shall execute and deliver all such instruments and assurances and do all such things as the first Party reasonably deems necessary or desirable to carry out the terms of this Agreement.

 

SECTION 14.06             Execution in Counterparts; by Telecopier. 

 

This Agreement may be executed in one or more counterparts and by one or more Parties to any counterpart, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.

 

SECTION 14.07             Headings. 

 

The division of this Agreement into Articles, Sections, subsections and clauses, the provision of a table of contents and the insertion of headings are for convenience of reference only and shall not be deemed to form part of the text or affect the construction or interpretation hereof.

 

SECTION 14.08        Severability.

 

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and thereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

SECTION 14.09             Confidentiality. 

 

(a)         Each Party (a "Receiving Party") undertakes to treat, and to cause its officers, employees and agents and each of its Affiliates to treat, Confidential Information that is provided by or on behalf of any other Party (a "Disclosing Party") as follows:  (i) it shall keep all such Confidential Information confidential, except as provided below in clause (ii) of this Section 14.09(a); (ii) it shall restrict access to the Confidential Information to its officers, employees and representatives and others whose access is reasonably necessary in connection with its performance of this Agreement and any related agreement and the development and implementation of the Project, (including in the negotiation, execution and implementation of the Financing Documents), within the limits necessary for the fulfillment of this Agreement or any related agreement and the implementation of the Project; it being understood, that in the case of such disclosure, it shall ensure that such officers, employees and representatives shall not disclose or use such Confidential Information for any purpose other than the fulfillment of this Agreement and the development and implementation of the Project; and (iii) upon termination of this Agreement or sale or transfer of all of its Shares, it shall return or destroy all such Confidential Information and any copies thereof, as required by the Disclosing Party.

 

(b)         Notwithstanding anything in Section 14.09(a) to the contrary, the Receiving Party may disclose Confidential Information necessary for the purpose of:  (i) obtaining the necessary permits and authorizations for the Project and financing for the Project from the Project's potential lenders; (ii) complying with a court or administrative order, law or regulation, including regulations of stock exchanges or similar regulatory authorities or a formal request of a Governmental Authority; provided that the Receiving Party shall furnish only the portion of such Confidential Information which is legally required to be provided (or is requested by a Governmental Authority and such request is of a nature that is customarily complied with by other Persons similarly situated) and shall exercise all reasonable efforts to obtain assurances that confidential treatment shall be accorded such information and shall give notice to the Disclosing Party as promptly as practicable of the Receiving Party's obligation to disclose any such information; (iii) any litigation or arbitration arising out of or related to the Project or this Agreement; (iv) transferring all or a part of its Shares or all or part of the ownership interest in the Company to a third party, in each case in accordance with the terms of this Agreement; provided that such third party has provided a written undertaking (substantially as set forth above) to keep all such Confidential Information confidential.

 

(c)         The obligations of the Parties under this Section 14.09 shall remain in full force and effect until the later of (i) [•] years after the date hereof and (ii) [•] year following the termination of this Agreement.

 

SECTION 14.10             Consultation as to Announcements. 

 

No public announcement concerning the terms of this Agreement, the business of the Company or the Project, shall be made by any Shareholder or its Affiliates without the prior written consent of the other Parties.

 

SECTION 14.11             Successors and Assigns, Etc. 

 

This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.  This Agreement shall not otherwise be deemed to, and shall, not confer upon or give to any third party any grant, claim, cause of action or other interest herein and nothing herein, express or implied, is intended to, or shall, confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever.

 

SECTION 14.12             Remedies. 

 

Except as specifically provided otherwise in this Agreement, the rights and remedies provided herein are cumulative and not exclusive of any rights or remedies provided by law.

 

 

 

SECTION 14.13             Costs and Expenses. 

 

Each Party shall, except to the extent expressly provided herein to the contrary, be responsible for its own costs and expenses (including fees and disbursements of counsel) incurred in the preparation, negotiation and execution of this Agreement and the documents to be entered into as referred to herein.

 

SECTION 14.14             Consequential Damages. 

 

No Party or any of its respective Affiliates shall, in any event, be liable under this Agreement to any other Party for any incidental, indirect, special, punitive, exemplary or consequential loss or damages arising out of, or in connection with, this Agreement, including loss of revenue, loss of profits, loss of product, cost of capital and loss of business reputation or opportunity, whether such liability arises out of contract, tort (including negligence), strict liability, statute or otherwise unless expressly provided herein.

 

SECTION 14.15             Waiver of Immunities. 

 

To the extent that any Party or any of such Party's properties, assets or revenues may have been or in the future may become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any proceeding, from setoff or counterclaim, from the attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under, or arising out of, or in connection with this Agreement to the maximum extent permitted by law, each Party irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to any such relief and the enforcement of any such judgment.

 

SECTION 14.16             Survival. 

 

Notwithstanding anything to the contrary in this Agreement, expiration or termination of this Agreement shall be without prejudice to any liability or obligation of any Party arising on or prior to the date of such expiration or termination, which liabilities and obligations shall expressly survive expiration or termination of this Agreement, including the obligation of any Party to pay any and all amounts pursuant to Article V accruing up to and including the effective date of such expiration or termination.  In addition, the obligations of each Party contemplated by the provisions of Article VIII and Sections 13.01, 13.02, 13.03, 14.08, 14.13, 14.14 and 14.15 and this Section 14.16 shall survive the termination of this Agreement, in whole or in part.

 

SECTION 14.17             Language. 

 

This Agreement has been executed in the English language, which shall be the governing language hereof, regardless of any translation into any other language.  All amendments, waivers, notices and other communications delivered pursuant to or in connection with this Agreement shall be in the English language.

 

SECTION 14.18             Relationship of Parties. 

 

Nothing in this Agreement shall be construed to create between or among any of the Parties an association, trust, partnership, joint venture or other business entity, or impose any trust or partnership or similar duty on any Party.  In no event shall any Party represent to other persons or entities that any such association, trust, partnership, joint venture or other business entity has been formed, other than the Company.  Nothing in this Agreement shall be construed so as to make any Party an agent or contractor of any other Party.  Except as expressly provided in this Agreement, no agent or representative of any Party has or shall have the authority to make, and the Parties shall not be bound by or be liable for, any statement, representation, promise, agreement or other binding commitment of any kind on behalf of any other Party.

 

SECTION 14.19             Prohibition against Improper Payments. 

 

(a)         In connection with the fulfillment of its responsibilities under this Agreement, each of the Parties and its Equity Interest Holders (as defined below), directors, officers, employees, representatives and agents has not and will not pay or give (or promise or offer to pay or give, or authorize, facilitate, encourage or otherwise incite any payment or giving or the making of any promise or offer to pay or give) any money, service, or other item or benefit of value, whether directly or through intermediaries, to any Public Official (as defined below), for such Public Official or any third party, in order to induce any such Public Official to take any action or make any decision, or to make any omission, or to exercise any influence with any third party, in each case for the purpose of obtaining or retaining any business or benefit for any Party.

 

(b)         As used in this Section 14.19, (i) the term "Public Official" shall mean (A) any official or agent of any national, regional, local or municipal government, or any ministry, department, agency, bureau, office or other subdivision of any thereof, including without limitation, any military organization, (B) any judge, official or agent of any court or other judicial body, (C) any director, officer, employee, representative or agent of any government owned or controlled enterprise, (D) any official or agent of any political party or any candidate for political office, (E) any person conducting any activity in the public interest or exercising any other public function or (F) any official or agent of any public international organization, and (ii) the term "Equity Interest Holders" shall mean (A) when used in respect of a corporation or stock company, all shareholders thereof regardless of the class or preference of the shares held and (B) when used in respect of a partnership, all general and limited partners thereof.

 

SECTION 14.20             Judgment Currency.

 

(a)        Each Party's obligations hereunder to make payments in Dollars (the "Obligation Currency") shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Company of the full amount of the Obligation Currency expressed to be payable to the Company under this Agreement.  If for the purpose of obtaining or enforcing judgment against such Party in any court or in any jurisdiction, it becomes necessary to convert into or from any currency other than the Obligation Currency (such other currency being hereinafter referred to as the "Judgment Currency") an amount due in the Obligation Currency, the conversion shall be made at the rate of exchange determined, in each case, as of the day on which the judgment is given (such Business Day being hereinafter referred to as the "Judgment Currency Conversion Date").

 

(b)         If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due, such Party covenants to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency that could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate of exchange prevailing on the Judgment Currency Conversion Date.  If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due that results in such Party paying an amount in excess of that necessary to discharge or satisfy any judgment, the Company shall pay or cause to be paid to such Party the amount of such excess.

 

(c)         For purposes of determining the rate of exchange under this Section 14.20, such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.  The obligation of such Party to make payment in the Obligation Currency shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment, which is expressed in or converted into any currency other than the Obligation Currency, except to the extent such tender or recovery shall result in the actual receipt by the Company of the full amount of the Obligation Currency that such Party is obligated to pay hereunder for such obligation.  The obligation of such Party to make payment in the Obligation Currency of any obligation hereunder shall be enforceable in an additional cause of action for the purpose of recovering in the Obligation Currency the amount, if any, by which the actual receipt by the Company of the amount of the Obligation Currency shall fall short of the full amount of the Obligation Currency payable by such Party, for any such obligation, and shall not be affected by judgment being obtained for any other sums due under this Agreement.

 

SECTION 14.21             Effective Date.

 

Notwithstanding any provision hereof to the contrary, this Agreement shall only be effective and binding on the Parties from and after the Closing Date (as defined in the Subscription Agreement) (the "Effective Date") and in the event the Closing Date (as defined in the Subscription Agreement) does not occur within [•] days after the date hereof, this Agreement shall be void and of no effect and no Party shall have any obligations or liabilities hereunder or with respect hereto. 

 

 

 

 

ARTICLE XV

GUARANTEE

 

SECTION 15.01             Guarantee; Limitation of Liability. 

 

[DDD] hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, of all payment obligations of [AAA] now or hereafter existing under or in respect of this Agreement (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of such obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, fees, indemnities, contract causes of action, costs, expenses or otherwise, and agrees to pay any and all expenses (including, without limitation, fees and expenses of counsel) incurred by Shareholders in enforcing any rights under this Article 15.  [EEE] and [FFF], severally, hereby absolutely, unconditionally and irrevocably guarantee the punctual payment when due, of all payment obligations of [BBB] now or hereafter existing under or in respect of this Agreement (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of such obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, fees, indemnities, contract causes of action, costs, expenses or otherwise, and agrees to pay any and all expenses (including, without limitation, fees and expenses of counsel) incurred by Shareholders in enforcing any rights under this Article 15; provided however that the maximum liability of [EEE] or [FFF], as the case may be, with respect to amounts payable by [BBB] hereunder shall be limited to their then respective percentage ownership of [BBB] multiplied by the amount payable by [BBB], and provided further that [EEE] and [FFF] shall be severally and not jointly liable for all expenses (including, without limitation, fees and expenses of counsel) incurred by Shareholders in enforcing any rights against [EEE] and [FFF], respectively, under this Article 15. [GGG] hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, of all payment obligations of [CCC] now or hereafter existing under or in respect of this Agreement (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of such obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, fees, indemnities, contract causes of action, costs, expenses or otherwise, and agrees to pay any and all expenses (including, without limitation, fees and expenses of counsel) incurred by Shareholders in enforcing any rights under this Article 15. [DDD], [EEE], [FFF] and [GGG] are hereinafter each referred to as a "Guarantor", and the obligations guaranteed by each of the Guarantors is hereinafter referred to as the "Guaranteed Obligations".  Notwithstanding the foregoing, the Guaranteed Obligations of each Guarantor shall not include any payment obligations of its Affiliate Shareholder for which such Guarantor has joint and several liability hereunder in accordance with the terms of this Agreement.  Without limiting the generality of the foregoing, each Guarantor's liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any Shareholder to any other Shareholder under or in respect of this Agreement but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such Shareholder.

 

SECTION 15.02             Guarantee Absolute. 

 

Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Shareholder with respect thereto.  The obligations of each Guarantor under or in respect of this Guarantee are independent of the Guaranteed Obligations or any other obligations of any other Party under or in respect of this Agreement, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guarantee, irrespective of whether any action is brought against the relevant Shareholder or any other Party or whether the relevant Shareholder or any other Party is joined in any such action or actions.  The liability of each Guarantor under this Guarantee shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

 

(a)         any lack of validity or enforceability of this Agreement or any agreement or instrument relating thereto;

 

(b)         any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of any other Party under or in respect of this Agreement, or any other amendment or waiver of or any consent to departure from any provision hereof;

 

(c)         any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;

 

(d)         any manner of application of any collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of any Shareholder under this Agreement or any other assets of any Shareholder;

 

(e)         any change, restructuring or termination of the corporate structure or existence of any Shareholder or other Party;

 

(f)         any failure of any Shareholder to disclose to any other Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any such Party now or hereafter known to such Shareholder (each Guarantor waiving any duty on the part of the Shareholders to disclose such information);

 

(g)         the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or

 

(h)         any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by any Shareholder that might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other guarantor or surety.

This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Shareholder or any other Person upon the insolvency, bankruptcy or reorganization of a Shareholder or any other Party or otherwise, all as though such payment had not been made.

 

SECTION 15.03             Waivers and Acknowledgements. 

 

(a)         Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guarantee and any requirement that any Shareholder protect, secure, perfect or insure any Encumbrance or any property subject thereto or exhaust any right or take any action against any Shareholder or any other Person or any collateral.

 

(b)         Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guarantee and acknowledges that this Guarantee is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future but only to the extent of the liability of its Affiliate Shareholder under this Agreement.

 

(c)         Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Shareholder that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Shareholders or Guarantors, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the obligations of such Guarantor hereunder.

 

(d)         Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Shareholder or other Guarantor to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Shareholder or Guarantor now or hereafter known by such Shareholder or Guarantor.

 

(e)         Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from this Agreement and that the waivers set forth in Section 15.02 and this Section 15.03 are knowingly made in contemplation of such benefits.

 

SECTION 15.04             Subrogation. 

 

Subject to the requirements of the Funding and Support Agreement to which it is a party and except for any claims asserted by either [EEE] or [FFF] against the other in connection with their respective Guaranteed Obligations, each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any Shareholder or any other Guarantor that arise from the existence, payment, performance or enforcement of such Guarantor's Obligations under or in respect of this Guarantee or this Agreement, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Shareholder against any other Shareholder, any other Guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Shareholder, any other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of such Guarantor's Guaranteed Obligations and all other amounts payable under this Guarantee shall have been paid in full in cash.  If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guarantee, such amount shall be received and held in trust for the benefit of the Shareholders, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Shareholders in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guarantee, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guarantee thereafter arising. 

 

SECTION 15.05             Continuing Guarantee; Assignments. 

 

This Guarantee is a continuing guarantee and shall (a) remain in full force and effect until the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guarantee, (b) be binding upon the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Shareholders and their successors, transferees and assigns.

 

SECTION 15.06             Waiver and Release.

                          

Each Shareholder irrevocably and unconditionally waives any and all rights to assert, and releases each Sponsor from, all claims arising out of this Agreement other than any claim arising out of this Article 15.                   

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized officers as of the date first above written.

 

[AAA]

 

By: _____________________________ 

 

[BBB]

 

By: _____________________________ 

 

[CCC]

 

By: ____________________________

            

[DDD]

 

By: ____________________________

 

[EEE]

 

By: ____________________________

 

[FFF]

 

By:  ____________________________

 

[GGG]

 

By:  ____________________________

 

[HHH]

 

By:  ____________________________

            

 

 

                                                                 

                                     SCHEDULE I

 

DEFINITIONS

 

"Acceptable Financing" has the meaning set forth in the Common Agreement.

 

"Accession Agreement" means the Accession Agreement to be entered into by and among [JJJ], [DDD], the Company, [BBB] and [CCC] under which [BBB] and [CCC] agree to be bound by the Proponent's Agreement.

 

"Additional Contribution Amount" has the meaning set forth in Section 9.11.

 

"Affiliate" means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.  Neither the Company nor any Subsidiary thereof shall be considered an Affiliate of any Shareholder or their Affiliates or their successors and permitted assigns.

 

"Affiliate Shareholder" means in relation to [DDD], [AAA], in relation to [EEE] and [FFF], [BBB], and in relation to [GGG], [CCC].

 

"Affiliate Sponsor" means in relation to [AAA], [DDD], in relation to [BBB], [EEE] and [FFF], and in relation to [CCC], [GGG].

 

"Applicable Law" means any constitution, treaty, statute, law, rule, regulation, ordinance, judgment, order, decree, governmental consent or approval or any published directive, guideline requirement or other governmental restriction, which has the force of law, or any determination by, or interpretation of any of the foregoing by, any judicial authority, binding on a given Person or its property, or any Transaction Document whether in effect as of the date hereof or thereafter.

 

"Applicable Currency Exchange Rate" shall mean, as of any date of determination and as the context may require, the telegraphic transfer mean rate of exchange (net of all fees and commissions) then applicable to the conversion of [Currency] to Dollars or Dollars to [Currency], as the context may require, quoted by [•] on the applicable date of determination (or, if no such quotations shall be available on such date, on the date closest to such date of determination).

 

"ARA" has the meaning set forth in the Common Agreement.

 

"Articles" means the Articles of Incorporation of the Company, attached hereto as Exhibit A, as amended, modified or supplemented from time to time.

 

"Available Contingency Amount" means an amount not less than [•] equal to (i) $ [•] less (ii) the aggregate amount of Contingency Costs incurred as determined as of the Completion Date.

 

"Base Case Financial Model" means the base case financial model agreed among the Shareholders.

 

"Base Equity Commitment" for any Shareholder and its Affiliate Sponsor means, as of any date of determination, an amount equal to the excess, if any, of (a) the amount set forth on Schedule V as the Base Equity Commitment for such Shareholder and its Affiliate Sponsor over (b) the sum of (i) the Current Base Equity Contribution Amount for such Shareholder and its Affiliate Sponsor, and (ii) such Shareholder's and its Affiliate Sponsor's Unreimbursed Fronted Costs.

 

"Base Equity Advance Contributions" has the meaning set forth in Section 5.03(b).

 

"Base Equity Contributions" has the meaning set forth in Section 5.03.5.03(a).

 

"Board" means the Board of Directors of the Company.

 

"Bridge Loan Agreement" means the Loan Agreement dated [•], 20[•] among [LLL] as lender and as facility agent, [DDD] as guarantor and the Company.

 

"Business Day" means any day other than Saturday, Sunday or a statutory holiday on which banks in [Name of the City ], [Name of the City] , [Name of the City] or [Name of the City] are authorized or required to be closed.

 

"By-laws" means the Amended and Restated By-laws of the Company, attached hereto as Exhibit B, as amended, modified or supplemented from time to time.

 

"Capital Stock" means the Common Shares, the Series A Preferred Shares and any and all shares, interests, participations, rights in or other equivalents (however designated) of the Company's capital stock or equity capital, including, without limitation, shares of common stock, shares of preferred or preference stock, equity advances and any rights or warrants or options exercisable for or convertible into such capital stock or equity capital.

 

"Cause" the willful and persistent failure or neglect by a Director or officer to substantially perform his duties as such Director or officer, serious misconduct or willful disobedience by a Director or an officer of the lawful orders of the Board in connection with such Director's or officer's work, the willful engaging by a Director or officer in conduct that is demonstratively and materially injurious to the company, the willful or knowing voting for or concurrence with patently unlawful acts of the Company, gross negligence or bad faith in directing the affairs of the Company, fraud or willful breach of the trust reposed in a Director or officer by the Company, the acquisition of any personal or pecuniary interest in conflict with a Director's or officer's duty as Director or officer, or a Director's or officers conviction of a crime constituting a felony, or other causes analogous to the foregoing.

 

"CDS" has the meaning set forth in the Common Agreement.

 

"Centre for Expertise" means the International Centre for Expertise of the International Chamber of Commerce.

 

"CES" has the meaning set forth in the Common Agreement.

 

"Chairman" means the Chairman of the Board referred to in Section 4.07(a).

 

"Change of Tax Law" has the meaning set forth in Section 5.19(a).

 

"Change of Tax Law Expense" has the meaning set forth in Section 5.19(a).

 

"Closing Date" has the meaning set forth in the Common Agreement.

 

"Company" has the meaning set forth in the Preamble.

 

"Company Indemnitee" has the meaning set forth in Section 8.02.

 

"Common Agreement" has the meaning set forth in the Recitals.

 

"Common Shares" has the meaning set forth in Section 3.01(a).

 

"Completion Date" has the meaning set forth in the Common Agreement.

 

"Confidential Information" of any Disclosing Party means all information provided by or on behalf of such Disclosing Party pursuant to or in connection with the Project; provided, however, that Confidential Information shall not include information that (a) is, or becomes, publicly known or available other than through an act of the Receiving Party; (ii) is in the possession of the Receiving Party prior to receipt from such Disclosing Party; or (iii) was or has become known to such Receiving Party independent of any disclosure by such Disclosing Party and which has not been wrongfully disclosed to or obtained by such Receiving Party.

 

"Contingency Base Equity Commitment" for any Shareholder and its Affiliate Sponsor means, as of any date of determination, an amount equal to the excess, if any, of (a) the amount set forth on Schedule V as the Contingency Base Equity Commitment for such Shareholder and its Affiliate Sponsor over (b) the sum of (i) the Current Contingency Base Equity Contribution Amount for such Shareholder and its Affiliate Sponsor and (ii) such Shareholder's and its Affiliate Sponsor's Other Fronted Costs.

 

"Contingency Base Equity Advance Contributions" has the meaning set forth in Section 5.04(b).

 

"Contingency Base Equity Contributions" has the meaning set forth in Section 5.04(a).

 

"Contingency Costs" has the meaning set forth in the Common Agreement.

 

"Contract Year" has the meaning set forth in the ECA.

 

"Contribution" means, collectively, Base Equity Contributions, Contingency Base Equity Contributions and Cost Overruns Equity Contributions.

 

"Contribution Commitment" means, for any Shareholder and its Affiliate Sponsor, collectively, such Shareholder's and its Affiliate Sponsor's Base Equity Commitment, Contingency Base Equity Commitment, and Cost Overruns Equity Commitment.

 

"Controls" (including the correlative meanings of the terms "Controlled by" and "under common Control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities, by contract or otherwise.

 

"Cost Overruns" has the meaning set forth in the Common Agreement.

 

"Cost Overruns Equity Commitment" for any Shareholder and its Affiliate Sponsor means, as of any date of determination, an amount equal to the excess, if any, of (a) the amount set forth on Schedule V as the Cost Overruns Equity Commitment for such Shareholder and its Affiliate Sponsor over (b) the sum of (i) the Current Cost Overruns Equity Contribution Amount for such Shareholder and its Affiliate Sponsor and (ii) such Shareholder's and its Affiliate Sponsor's Excess Fronted Costs.

 

"Cost Overruns Equity Contributions" has the meaning set forth in Section 5.05.

 

"Currency Adjustment Ratio" means, with respect to any Series A Preferred Share or Series C Preferred Share that is to be redeemed, a fraction of which the numerator shall be the [Currency] Equivalent to $[•] on the determination date and the denominator shall be the [Currency] Equivalent to $[•] on the date of issue of the Series A Preferred Share or Series C Preferred Shared med. 

 

"Current Base Equity Contribution Amount" for any Shareholder and its Affiliate Sponsor means, as of any date of determination, the aggregate amount of all Base Equity Contributions made under Section 5.03 by such Shareholder and its Affiliate Sponsor prior to such date.

 

"Current Contingency Base Equity Contribution Amount" for any Shareholder and its Affiliate Sponsor means, as of any date of determination, the aggregate amount of all Contingency Base Equity Contributions made under Section 5.04 by such Shareholder and its Affiliate Sponsor prior to such date.

 

"Current Cost Overruns Equity Contribution Amount" for any Shareholder and its Affiliate Sponsor means, as of any date of determination, the aggregate amount of all Cost Overruns Equity Contributions made under Section 5.05 by such Shareholder and its Affiliate Sponsor prior to such date.

 

"Deadlock Matter" has the meaning set forth in Section 4.12.

 

"Default Notice" has the meaning set forth in Section 10.01(a).

 

"Defaulting Shareholder" has the meaning set forth in Section 10.02(c).

 

"Direct Agreement" means the agreement to be entered into between [JJJ] and the Lenders referred to in Article 2.5b of the ECA.

 

"Director Nominee" of a Shareholder means a Director nominated by such Shareholder to whom one Common Share is Transferred; provided that: (i) such Director Nominee shall have first executed and delivered to the Company a deed of trust reasonably satisfactory to the Shareholders evidencing that such Director holds the Common Share in trust on behalf of the nominating Shareholder, and (ii) the nominating Shareholder shall retain custody and control over the certificate evidencing such Common Share.

 

"Directors" shall mean the members of the Board as appointed pursuant to Article IV of this Agreement.

 

"Disclosing Party" has the meaning set forth in Section 14.09(a).

 

"Dispute" has the meaning set forth in Section 13.02.

 

"Dividend Account" has the meaning set forth in the Trust Agreement.

 

"Dollars" or "$" means the lawful currency of the United States of America.

 

"ECA" means the Energy Conversion Agreement, dated as of  [•], 19[•] between the Company and [JJJ] as it is to be amended and restated pursuant to the ARA.

 

"ECA Completion Date" has the meaning set forth in the Common Agreement.

 

"ECA Construction Performance Security" has the meaning set forth in the Common Agreement.

 

"ECA Deemed Completion Date" shall have the same meaning as the meaning for the term "Deemed Completion Date" set forth in Article 4.5 of the ECA.

 

"ECA Operation and Maintenance Security" has the meaning set forth in the Common Agreement.

 

"ECA Security Compensation" has the meaning set forth in Section 5.13(a).

 

"Effective Date" has the meaning set forth in Section 14.21.

 

"Encumbrance" means any security interest, pledge, mortgage, lien (including environmental and tax liens), charge, encumbrance, adverse claim, preferential arrangement or restriction of any kind, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership.

            

"Equity Interest Holders" has the meaning set forth in Section 14.19(b).

 

"Equity Portion" means, with respect to any amount, an amount equal to the product of (a) such amount and (b) [•] %.

 

"Excess ECA Security Compensation" has the meaning set forth in Section 5.13(a).

 

"Excess Fronted Costs" with respect to any Shareholder and its Affiliate Sponsor means, at any time, the excess of such Shareholder's and its Affiliate Sponsor's Other Fronted Costs over the amount equal to (i) the amount set forth on Schedule V as the Contingency Base Equity Commitment for such Shareholder and its Affiliate Sponsor less (ii) the Current Contingency Base Equity Contribution Amount for such Shareholder and its Affiliate Sponsor. 

 

"Executive Committee" has the meaning set forth in Section 4.03(a).

 

"Excess Cost Overruns" has the meaning set forth in Section 5.02(cd).

 

"Fair Market Value" means, as applied to Shares to be purchased under this Agreement at a particular time, the cash price that would be obtained in an arms' length private sale of such Shares at such time between an informed and willing buyer (under no compulsion to purchase) and an informed and willing seller (under no compulsion to sell), taking into account the dividends and benefits expected to be received by the owner of such Shares over the remaining term the ECA and the rights and obligations of such owner under this Agreement.

 

"Financing Documents" has the meaning set forth in the Common Agreement.

 

"Financing Parties" means the Lenders, the Hedge Banks (as defined in the Common Agreement) and the Agents (as defined in the Common Agreement).

 

"First Adoption Date" means the date on which the Articles of Incorporation of the Company and the By-laws of the Company have been duly amended and are in effect in a form that provides for the number of directors of the Company to be eleven.

 

"Former Shareholder" means a Person who has ceased to be a Shareholder pursuant to Section 10.02(f).

 

"Fronted Costs" has the meaning set forth in the Common Agreement.

 

"Fuel Supply and Management Agreement" means the fuel supply and management agreement to be entered into between the Company and [JJJ].

 

"Funding and Support Agreements" has the meaning set forth in the Common Agreement.

 

"GAAP" means generally accepted accounting principles in effect in [Name of the Country] from time to time, consistently applied throughout the specified period and the immediately prior comparable period.

 

"[KKK]" means the central government of [Name of the Country] (including the Department of Defense of [Name of the Country] and any other agency or instrumentality of such central government).

 

"Guarantee" means the guarantee provided by [DDD], [EEE], [FFF] and [GGG] pursuant to Article 15.

 

"Guaranteed Obligations" has the meaning set forth in Section 15.01.

 

"Guarantor" has the meaning set forth in Section 15.01.

 

"ICC" means the International Chamber of Commerce.

 

"ICC Rules" has the meaning set forth in Section 13.03(a).

 

"Indebtedness" of any Person means:  (i) indebtedness for borrowed money or for the deferred purchase price of property or services; (ii) obligations evidenced by bonds, debentures, notes, commercial paper, bills of exchange or other similar instruments; (iii) obligations to pay the deferred purchase price of property or services; (iv) letters of credit and all drafts drawn thereunder; (v) reimbursement obligations in respect of letters of credit, performance bonds or other similar instruments; (vi) all obligations secured by any Encumbrances on any property, whether or not such obligations have been assumed; (vii) capital lease obligations; (viii) net obligations in respect of any currency swap, cap or collar agreement or similar arrangement providing for the transfer or mitigation of currency risks either generally or under specific contingencies; and (xi) obligations under any direct or indirect guarantee. 

 

"Indemnified Damages" has the meaning set forth in Section 8.02.

 

"Indemnitees" has the meaning set forth in Section 8.02.

 

"Initial Disbursement" means the first disbursement of Senior Loans.

 

"Interest Payment Date” means (a) prior to the Tranche A End Date (i) [•],[•] of each calendar year and (ii) (in the case of any Subordinated Shareholder Loan made on or after an Interest Period commencing on the last such Interest Payment Date falling prior to the Tranche A End Date) the Tranche A End Date, and (b) after the Tranche A End Date, each Payment Date; provided, that in the case of any Subordinated Shareholder Loan made on or after an Interest Period commencing on the last such Interest Payment Date falling prior to the Completion Date, the Completion Date.

“Interest Period” means, for each Subordinated Shareholder Loan (a) (in the case of the initial Interest Period for such Subordinated Shareholder Loan) the period from and including the date of the disbursement of such loan up to, but not including the next succeeding Interest Payment Date, and (b) (in the case of each subsequent Interest Period for such Subordinated Shareholder Loan), the period from and including the Interest Payment Date next succeeding the last day of the preceding Interest Period, up to, but not including the next succeeding Interest Payment Date; provided, that in the case of the last Interest Period commencing prior to the Tranche A End Date, the Interest Period shall commence on the Interest Payment Date prior to the Tranche A End Date and end on the day immediately preceding the Tranche A End Date; provided, further, that in the case of the first Interest Period following the Tranche A End Date, the Interest Period shall commence on the Tranche A End Date and end on the day immediately preceding the following Interest Payment Date; and provided, further, that in the case of the last Interest Period commencing prior to the Completion Date, the Interest Period shall commence on the Interest Payment Date prior to the Completion Date and end on the day immediately preceding the Completion Date.

 

"Interested Party" has the meaning set forth in Section 4.09.

 

"Interested Party Transaction" has the meaning set forth in Section 4.09.

 

"Interested Shareholder" has the meaning set forth in Section 4.09.

 

"Investment Grade Credit Rating" means  ………

 

"Judgment Currency" has the meaning set forth in Section 14.20(a).

 

"Judgment Currency Conversion Date" has the meaning set forth in Section 14.20(a).

 

"[DDD]" has the meaning set forth in the Preamble.

 

"[DDD] Replacement Loan Agreement" means the loan agreement to be entered into among [DDD], [AAA] and the Company.

 

"[DDD] Replacement Loans" has the meaning set forth in Section 5.06.

 

"[III]" ………

 

"[CCC]" has the meaning set forth in the Preamble.

 

"[AAA]" has the meaning set forth in the Preamble.

 

"[GGG]" has the meaning set forth in the Preamble.

 

"Largest Shareholding Shareholder" means the Shareholder holding the largest percentage of issued and outstanding Common Shares; provided that if two or more Shareholders shall each own the largest percentage of such Common Shares, (A) the Shareholder that shall have owned such percentage of such Common Shares first shall be the Largest Shareholding Shareholder; and (B) if such Shareholders shall have acquired such share percentage at the same time, the Shareholder that had the highest percentage of such Common Shares among such Shareholders immediately prior to owning such same percentage shall be the Largest Shareholding Shareholder.

"Lenders" means, collectively, all lenders party to the Financing Documents, including any institution or other entity that becomes a lender by assignment in accordance with the terms of the relevant Financing Documents.

 

"Lending Business Day" has the meaning set forth in the Common Agreement.

 

"Lesser Obligation" has the meaning set forth in Section 10.01(a).

 

"LIBOR" means, for any period of six-months or less with respect to which LIBOR is to be calculated, the rate per annum for [•]-month US Dollar deposits set forth on page [•] of the Dow Jones Markets Service (or on any successor or substitute page of such service) at approximately [Time], London time, on the date [•] Business days before the [•]th day of such period.

 

"Limited Take-Out Undertaking", means the Limited Take-out Undertaking dated as of the date hereof among [DDD], [AAA] and the Trustee.

 

"Liquidated Damages for Delay" has the meaning set forth in the Common Agreement.

 

"Loss" has the meaning set forth in Section 8.01.

 

"LTU Event" has the meaning set forth in the Limited Take-out Undertaking.

 

"LTU Refinancing" has the meaning set forth in Section 9.11.

 

"LTU Refinancing Period" has the meaning set forth in Section 9.11.

 

"Maintenance Cost Overrun" has the meaning set forth in Section 5.15(b).

 

"Maintenance Support Undertaking" has the meaning set forth in the Common Agreement.

 

"Major Obligation" has the meaning set forth in Section 10.01.10.01(a).

 

"Make Whole Adjustment" has the meaning set forth in Section 5.19(b).

 

"Managerial Technical Services Agreement" or "MTSA" means the managerial technical services agreement to be entered into by the Company and [DDD].

 

"[EEE]" has the meaning set forth in the Preamble.

 

"[EEE]/[BBB] Base Equity Limit" means $[•].

 

"[EEE]/[BBB] Contingency Base Equity Limit" means $[•].

 

"[EEE]/[BBB] Cost Overruns Equity Limit" means $[•].

 

"[MMM]" has the meaning set forth in the Common Agreement.

 

"Non-Defaulting Shareholders" has the meaning set forth in Section 10.01(a).

 

"Non-Eligible Project Costs" has the meaning set forth in Section 5.01(a).

 

"Non-[DDD] Shareholder" has the meaning set forth in Section 9.11.

 

"Non-Selling Shareholder" has the meaning set forth in Section 9.02.

 

"Notice of Borrowing" has the meaning set forth in the Common Agreement.

 

"Notice of Project Costs" has the meaning set forth in the Common Agreement.

 

"Notice of Project Costs Transfer Date" has the meaning set forth in the Common Agreement.

 

"[JJJ]" means the [•] Corporation, a government owned and controlled corporation organized and existing under the laws of [Name of the Country].

 

"Obligation Currency" has the meaning set forth in Section 14.20(a).

 

"Offer Period" has the meaning set forth in Section 9.02(b).

 

"Offered Shares" has the meaning set forth in Section 9.02(a).

 

"O&M Budget and Operating Plan" means the annual operations and maintenance budget and operating plan for the Project, which shall include the estimated revenues, operating, administrative and other expenses and capital expenditures for such year.

 

"O&M Expert" means [•] or such other internationally recognized engineering firm with significant combined cycle operating and maintenance experience in Asia mutually agreed by the Shareholders.

 

"O&M Guarantee Fee" has the meaning set forth in Section 5.15(b).

 

"O&M Protocol Guarantee" means the guaranty, dated [•], 20[•] by [DDD] of the Company's obligations under the O&M Protocol, as such term is defined in the MTSA.

 

"Option Price" means a price per share equal to (i) with respect to any Common Share, Series A Preferred Share or Series B Preferred Share, the Dollar equivalent at the Applicable Currency Exchange Rate as of the date of issuance of such Share of the issue value of such Share, and (ii) with respect to any Series C Preferred Share, the Dollar equivalent at the Applicable Currency Exchange Rate on the date of determination of the redemption value of such Share.

 

"Other Shareholders" has the meaning specified in Section 5.15(a).

 

"Organizational Documents" means the Articles, By-laws and any other documents relating to the incorporation of the Company.

 

"Other Fronted Costs" with respect to any Shareholder and its Affiliate Sponsor means the excess of such Shareholder's and its Affiliate Sponsor's Unreimbursed Fronted Costs over the amount equal to (i) the amount set forth on Schedule V as the Base Equity Commitment for such Shareholder and its Affiliate Sponsor less (ii) the Current Base Equity Contribution Amount for such Shareholder and its Affiliate Sponsor.

 

"Partial Performance Undertaking" or "PPU" means , collectively, the three-part undertaking of [Name of the Country] dated [•], 19[•], consisting of the Guarantee of Project Agreements, Foreign Exchange Convertibility Agreement and Agreement as to Fundamental Rights, and the Supplement Agreement to be entered into between the Borrower and the [KKK].

 

"Parties" has the meaning set forth in the preamble.

 

"Payment Date" has the meaning set forth in the Common Agreement.

 

"Payment Notice" has the meaning set forth in Section 5.08(b).

 

"Performance Liquidated Damages Subaccount" has the meaning set forth in the Trust Agreement.

 

"Performance Support" has the meaning set forth in Section 5.12(g).

 

"Permitted Transferee" means (a) a Person (other than an individual), (i) which has an Investment Grade Credit Rating, (ii) the obligations of which under this Agreement are guaranteed by the Transferring Shareholder or (iii) which, in the reasonable judgment of the other Shareholders, has the ability to perform the financial obligations of a Shareholder under this Agreement; (b) a Director Nominee (with respect to the Transfer of one Common Share only);  (c) any Shareholder, Affiliate Sponsor or direct or indirect wholly owned subsidiary of any Shareholder or Affiliate Sponsor; or (d) a Person to whom a Shareholder’s interest in the Company is transferred involuntarily, directly or indirectly, by operation of law or otherwise, including, without limitation, a foreclosure by the Financing Parties on a pledge of the Shares constituted for the purpose of securing financing for the Project.

 

"Person" means an individual, a corporation, voluntary association, firm, joint stock company, trust, limited or general partnership, joint venture, unincorporated association, governmental authority or agency, or any other legal entity.

 

"[Currency] Equivalent", as applied to an amount in Dollars, means that number of [Currency] which can be purchased for such amount of Dollars at the Applicable Currency Exchange Rate.

 

"[Currency]" means the lawful currency of [Name of the Country].

 

"Planned Project Costs" means the project costs identified and anticipated as of the date hereof by the Company and the Shareholders to be expended by the Company through the Completion Date for the Project in an amount equal to $[•].

 

"Post-offer Period" has the meaning set forth in Section 9.02(b).

 

"Price Basis" has the meaning set forth in Section 10.02(f).

 

"Project" has the meaning set forth in the Recitals.

 

"Project Budget" means the Construction Plan and Budget attached hereto as Exhibit C, as the same may be amended from time to time.

 

"Project Costs" means the costs (including third party and internal costs) necessary to finance the construction and development of the Project and related matters.

 

"Project Documents" has the meaning set forth in the Common Agreement.

 

"Proponent's Agreement" means the proponent's agreement dated [•], 20[•] among [DDD], the Company and [JJJ].

 

"Public Official" has the meaning set forth in Section 14.19(b).

 

"Receiving Party" has the meaning set forth in Section 14.09(a).

 

"Related Agreement" has the meaning set forth in Section 13.03(f).

 

"Required Accounting Practice" means the accounting rules and regulations, if any, at the time prescribed by the regulatory body or bodies under the jurisdiction of which the Company is incorporated and, with respect to matters not covered by such rules and regulations, GAAP.

 

"Sale Period" has the meaning set forth in Section 9.02(b).

 

"[BBB]" has the meaning set forth in the Preamble.

 

"[BBB] Shareholders’ Agreement" means the Shareholders' Agreement dated [•] among [EEE], [FFF] Limited Partnership and [BBB].

 

"Second Adoption Date" means the date on which the Articles of Incorporation of the Company and the By-laws of the Company have been duly amended and are in effect in the form attached as Exhibit A and Exhibit B hereto, respectively, in accordance with Section 2.02.

 

"Second Largest Shareholding Shareholder" means the Shareholder owning the second largest percentage of the total issued and outstanding Common Shares among the Shareholders.

 

"Secondment Agreement" means the Secondment Agreement, dated [•] between [DDD] and the Company.

 

"[FFF]" has the meaning set forth in the Preamble.

 

"[FFF]/[BBB] Base Equity Limit" means $[•].

 

"[FFF]/[BBB] Contingency Base Equity Limit" means $[•].

 

"[FFF]/[BBB] Cost Overruns Equity Limit" means $[•].

 

"Selling Shareholder" has the meaning set forth in Section 9.02.

 

"Senior Officers" has the meaning set forth in Section 4.10(a).

 

"Senior Loans" means any loan made under the Financing Documents.

 

"Series A Preferred Shares" has the meaning set forth in Section 3.01(d).

 

"Series B Preferred Shares" has the meaning set forth in Section 3.01(e).

 

"Series C Preferred Shares" has the meaning set forth in Section 3.01(f).

 

"Shares" means the Common Shares, Series A Preferred Shares and any instruments evidencing any other Capital Stock of the Company.

 

"Share Ratio" means, with respect to any Shareholder, the number of voting Common Shares held by such Shareholder, from time to time, expressed as a percentage of the total number of voting Common Shares issued and outstanding at that time, provided, however, that the total of all Share Ratios shall always equal [•]%. The Share Ratios of [AAA], [BBB] and [CCC] on the date hereof are [•] %, [•] % and [•] %, respectively.

 

"Shareholder Indemnitee" has the meaning set forth in Section 8.01.

 

"Shareholder Indemnitor" has the meaning set forth in Section 8.01.

 

"Shareholder Subordinated Note" means a promissory note evidencing a Subordinated Shareholder Loan in substantially the form of Exhibit E.

 

"Shareholders" has the meaning set forth in the Preamble.

 

"Site" has the meaning set forth in the ECA.

 

"Spare Rotor Letter Agreement" has the meaning set forth in the Common Agreement.

 

"Special Board Majority" means approval by at least, with respect to clauses (vii) and (xxii) of Schedule II, [•] % of the members of the Board that are eligible to vote in a particular vote and, for all other clauses of Schedule II, [•] of the members of the Board that are eligible to vote in a particular vote.

 

"Special Shareholder Majority" means approval by, with respect to clause (i) of Schedule III, [•] % of the votes of the Shareholders (which shall include the affirmative vote of such Shareholder whose interest is so adversely affected) that are eligible to vote in a particular vote and, for all other clauses of Schedule III, [•] % of the votes of the Shareholders that are eligible to vote in a particular vote.

 

"Sponsor" has the meaning set forth in the Preamble.

 

"Subordinated Shareholder Loan" has the meaning set forth in Section 5.05.

 

"Subscription Agreement" has the meaning set forth in the Recitals.

 

"Subsidiary" of the Company means any corporation or other Person in which the Company owns, directly or indirectly, more than [•] % of the capital stock or other equity interest having ordinary voting power to elect the board of directors or other governing body of such Person or otherwise possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

 

"Supply and Construction Contracts" has the meaning set forth in the Common Agreement.

 

"Support Providers" has the meaning set forth in Section 5.12.

 

"Tax Support Notice" has the meaning set forth in Section 5.19(a).

 

"Taxes" has the meaning set forth in Section 5.10.

 

“Tranche A End Date” has the meaning given to such term in the [DDD] Replacement Loan Agreement.

 

"Transaction Documents" means the Project Documents and the Financing Documents.

 

"Transfer" or "Transferred" means, with respect to the Shares held by any Shareholder, any transfer, sale, exchange, assignment, mortgage, pledge, encumbrance, hypothecation, declaration of trust, grant of usufruct, grant of voting rights (pursuant to a proxy, voting agreement or otherwise) or other disposition or transfer (including by operation of law or otherwise) of any such Shares or any interest therein or right relating thereto, other than as required by the Financing Documents.

 

"Transferee" has the meaning set forth in Section 9.13.

 

"Transferring Shareholder" means a Shareholder that intends or is required to Transfer some or all of its Shares to another Person.

 

"Trust Agreement" has the meaning set forth in the Common Agreement.

 

"Trustee" has the meaning set forth in the Common Agreement.

 

"Unreimbursed Fronted Costs" with respect to any Shareholder and its Affiliate Sponsor means, at any time, the amount of Fronted Costs which were funded by such Shareholder and its Affiliate Sponsor which have not been theretofore reimbursed pursuant to the Financing Documents.

 

 

 

SCHEDULE II

 

ACTS AND ACTIONS REQUIRING

SPECIAL BOARD MAJORITY APPROVAL

 

(i)          Increase or reduce authorized capital stock, reclassify such stock (by, among others, changing the number, par value, preferences or rights thereof), create new classes of capital stock or issue any other ownership interests.

 

(ii)         Determine, alter or deviate from any material operating policies for the Project, or suspend any material Project operations.

 

(iii)        Appoint or remove auditors or make a material change in accounting policy or principles other than as required by Required Accounting Practice.

 

(iv)        Sell, convey, transfer, lease or otherwise dispose of, or grant an option or other right to purchase, encumber or otherwise materially impair (whether in one transfer or a series of transfers) any portion of the Company's properties or assets with a value in excess of $[•] (or the equivalent thereof in any other currency) other than liens which may arise by operation of law.

 

(v)         Borrow or otherwise incur Indebtedness in excess of $[•] (or the equivalent thereof in any other currency) at any time outstanding in the aggregate other than any Indebtedness incurred under the Financing Documents.

 

(vi)        Grant a guarantee, security, indemnity or other assumption of contingent liability for the performance of a third party's obligation other than guarantees, securities, indemnities, or the assumption of contingent liabilities granted in the ordinary course of business.

 

(vii)       Approve the Project Budget, the O&M Budget and Operating Plan or any amendments thereto, which shall increase or decrease the amount thereof by [•] % or more in the aggregate in any fiscal year.

 

(viii)      Make loans or extend credit in excess of $[•]  (or the equivalent thereof in any other currency) at any time outstanding.

 

(ix)        Commence, withdraw or settle any litigation or arbitration or other legal proceeding of any nature which could have a material adverse effect on the Company.

 

(x)         Initiate or settle any claim, the outcome of which could have a material adverse effect on the Company.

 

(xi)        Enter into, amend, declare a default under, waive a condition of, or terminate any of the Project Documents, Financing Documents, refinancing documents or any contract for the sale of electric capacity or energy in any respects other than any amendment which is of a formal or minor nature or which is made to correct a manifest error.

 

(xii)       (a) Enter into, amend, declare a default under, waive a condition of, or terminate, or (b) give consent, approval or authorization, make payment, proposal or negotiation, make or settle claims or exercise material rights under, contracts or agreements in any form or kind by the Company, with Shareholders or any Affiliates thereof or any of their officers or directors.

 

(xiv)      (a) repay any Subordinated Shareholder Loans other than on a pro rata basis, (b) convert any Shareholder advances or Subordinated Shareholder Loans into Capital Stock of the Company other than on a pro rata basis, or (c) reimburse any advanced funds, internal costs or third party costs, or (d) pay any development fee to one or more Shareholders or any their Affiliates, in each case except as expressly provided in this Agreement.

 

(xv)       Elect or replace officers of the Company.

 

(xvi)      Refinance or otherwise prepay any Indebtedness.

 

(xvii)     Declare cash dividends on the Company's Common Stock.

 

(xviii)    Redeem any Capital Stock of the Company.

 

(xix)      Undertake any transaction other than in respect of any Emergency Repair (as defined below) which individually, or when aggregated with related transactions, involves, or could reasonably be expected to involve, capital expenditures or lease commitments which were not either previously approved by the Board, in the Project Budget or the O&M Budget and Operating Plan, or contemplated by a contract to which the Company is a party, and have a value exceeding $[•] in the aggregate (or its equivalent in any other currency).  Emergency Repair means any action undertaken to prevent or mitigate the consequences of an event or circumstance which was unforeseen at the time of the Company's approval of the then-current O&M Budget and Operating Plan and which, in the good faith judgment of the plant manager, required the taking of immediate measures to prevent or mitigate an emergency situation endangering life or property or jeopardizing the long-term operation of the facility.

 

(xx)       Fund reserves as may be required by the Lenders and further reserves as the Board shall deem appropriate.

 

(xxi)      (a) Establish any committee of the Board, except the Executive Committee, to which the Board may (subject to the requirements of Applicable Law) delegate such of its powers and functions as the Board may determine; or (b) propose to abolish, increase or reduce the number of representatives on a committee (including the Executive Committee), or grant additional powers, rights, benefits or privileges to a committee (including the Executive Committee) or its representatives or remove or diminish any such powers, rights, benefits or privileges.

 

(xxii)  Abandon the Project.

 

 

 

SCHEDULE III

 

ACTS AND ACTIONS REQUIRING

SPECIAL SHAREHOLDER MAJORITY APPROVAL

 

 

(i)          The amendment of the Organizational Documents in a manner which adversely affects a Shareholder's interest.

 

(ii)         The removal of directors.

 

(iii)        The ratification or approval of a contract between a director or officer and the Company.

 

(iv)        Entering into any transaction, agreement or arrangement changing the nature of the business of the Company.

 

(v)         The extension or shortening of the term of the Company.

 

(vi)        The increase or reduction of the capital stock of the Company.

 

(vii)       The incurrence, creation or increase of bonded Indebtedness.

 

(viii)      The sale, conveyance, transfer, lease, exchange, mortgage, pledge or other disposition of, or grant of an option or other right to purchase, lease or otherwise acquire (whether in one transfer or a series of transfers) all or substantially all of the Company's properties and assets.

 

(ix)        The investment of Company funds in another corporation or business or for any purpose other than the primary purpose.

 

(x)         The issuance of stock dividends.

 

(xi)        The approval of any management contract.

 

(xii)       The delegation to the Board of Directors the power to amend, repeal or adopt new by-laws.

 

(xiii)      Entering into any merger or consolidation or any other manner of reorganization or purchase the capital stock (or other equity interest) or substantially all of the assets of a corporation or other entity.

 

(xiv)      Approving a resolution or taking of any other corporate action to or otherwise institute any proceeding seeking to adjudicate the Company a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangements, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or seeking entry of an order for relief or appointment of a receiver, trustee or other such official for it or a substantial part of its property.

 

(xv)       Making of a general assignment for the benefit of the creditors of the Company or otherwise entering into a scheme or other arrangement for the benefit of the creditors.

 

(xvi)      Winding up the business of the Company or liquidating its assets or dissolving the Company.

 

(xvii)     Performing any other action for which a special or extraordinary resolution is required to be passed under the laws of [Name of the Country].

 

SCHEDULE IV

 

ACTS AND ACTIONS REQUIRING

SHAREHOLDER SIMPLE MAJORITY APPROVAL

 

(i)          The election of directors to the Board.

 

(ii)         Calling for a special meeting to remove directors.

 

(iii)        The adoption of by-laws.

 

(iv)        The revocation of the power to amend or repeal or adopt new by-laws delegated to the Board of Directors or trustee.

 

(v)         Fixing the issue price of no-par value capital stock.

 

SCHEDULE V

 

BASE EQUITY COMMITMENTS

CONTINGENCY BASE EQUITY COMMITMENTS

AND COST OVERRUNS EQUITY COMMITMENTS

 

[To be updated after Project Costs are finalized]

 

 

 

………

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                   

EXHIBIT A

 

ARTICLES OF

INCORPORATION OF THE COMPANY

 

 

………

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT B

 

AMENDED AND RESTATED

BY-LAWS OF THE COMPANY

 

………

 

 

EXHIBIT C

 

PROJECT BUDGET

 

[Subject to further review]

 

 

 

………

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT D

 

MAINTENANCE BUDGET

 

[Subject to further review]

 

                 Contract Year                                  Amount (in US$'000s)

 

………                          ………

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT E

 

Shareholder Subordinated Note

 

  

 

………

 

 

 

 2_6 Shareholder's Agreement.doc