Redesign your brain
FUNDING AND SUPPORT AGREEMENT, 펀딩 및 지원 계약서, 영문계약서 본문
FUNDING AND SUPPORT AGREEMENT
among
[AAA CORPORATION],
[BBB CORPORATION],
[CCC CORPORATION],
[DDD BANK],
not in its individual
capacity but solely as Trustee,
and
[EEE BANK]
as Administrative Agent
Dated as of [•], 20[•]
Table of Contents
Section Page
1. Definitions; rules of interpretation.......................................... 2
1.1 Terms Defined in Common Agreement................................................. 2
1.2 Rules of Interpretation......................................................................... 2
1.3 Certain Defined Terms........................................................................... 2
2. Equity contributions.............................................................................. 7
2.1 Base Equity and Contingency Base Equity........................................ 7
2.2 Cost Overruns Contributions.............................................................. 9
2.3 [AAA] Replacement Loans..................................................................... 10
3. Other Financial Obligations............................................................. 12
3.1 ECA Securities......................................................................................... 12
3.2 Initial Funding of Debt Service Reserve Account........................... 14
3.3 Contingent Equity Support................................................................... 14
3.4 Cash Flow Deficiency Support............................................................. 15
3.5 PPU Fees..................................................................................................... 16
3.6 Tax Support............................................................................................... 17
3.7 GIF and Value of the Gas....................................................................... 18
3.8 [CCC].......................................................................................................... 18
4. nature of obligations........................................................................... 19
4.1 Joint and Several Liability................................................................... 19
4.2 Instrument for the Payment of Money............................................... 19
5. Form of EQUITY Contributions.......................................................... 19
5.1 Subordinated Loans................................................................................ 19
5.2 Terms of Subordinated Loans............................................................... 20
5.3 Subordination.......................................................................................... 21
5.4 Conversion of Subordinated Shareholder Loans............................ 21
6. Acceleration of Equity Contributions; Sponsor Letters of Credit 22
6.1 Acceleration of Equity Contributions.............................................. 22
6.2 Cash Deposits Option.............................................................................. 27
6.3 Return of Cash Deposits and Letters of Credit................................ 27
7. Representations and Warranties.................................................. 29
7.1 Organization, Power and Status.......................................................... 29
7.2 Power and Authority............................................................................. 29
7.3 Due Authorization, Execution and Delivery.................................... 30
7.4 No Violation or Conflict...................................................................... 30
7.5 Government Approvals.......................................................................... 30
7.6 No Proceedings........................................................................................ 31
7.7 No Defaults Under Court Orders....................................................... 31
7.8 Defaults.................................................................................................... 31
7.9 Financial Statements............................................................................. 32
7.10 Compliance with Laws............................................................................ 32
7.11 Percentage Ownership; No Other Outstanding Rights.................. 32
7.12 Legal Form................................................................................................ 33
7.13 Taxes; Fees and Duties............................................................................ 33
7.14 Immunity.................................................................................................... 33
7.15 Utility Regulation................................................................................. 34
7.16 No Bankruptcy......................................................................................... 34
7.17 Foreign Corrupt Practices Act; Unfair Competition Prevention Law. 34
7.18 Investment Company Act....................................................................... 34
8. Covenants....................................................................................................... 35
8.1 Reporting Obligations........................................................................... 35
8.2 Maintenance of Existence..................................................................... 36
8.3 Government Approvals.......................................................................... 36
8.4 Compliance with Laws............................................................................ 36
8.5 Taxes........................................................................................................... 36
8.6 Bar to Bankruptcy Action.................................................................... 37
8.7 Senior Loans............................................................................................. 37
8.8 Cooperation.............................................................................................. 37
8.9 Dissolution; Insolvency Proceedings................................................. 37
8.10 Limitation on Transfers......................................................................... 37
8.11 Proceedings.............................................................................................. 38
8.12 Further Assurances............................................................................... 39
8.13 No Adverse Control............................................................................... 39
8.14 Payments Under Pledge Agreement.................................................... 39
8.15 Utility Regulation................................................................................. 39
8.16 Investment Company Act....................................................................... 40
8.17 Reimbursement Sharing Agreement................................................... 40
9. NO OFFSET; Waivers; Other [AAA] Obligations.......................... 40
9.1 No Offset................................................................................................... 40
9.2 Taxes........................................................................................................... 41
9.3 Continuing Obligation and Waivers................................................... 41
10. Miscellaneous............................................................................................. 46
10.1 Obligations of Administrative Agent................................................ 46
10.2 Payment of Expenses, Etc....................................................................... 46
10.3 Notices....................................................................................................... 47
10.4 No Waiver; Remedies Cumulative........................................................ 47
10.5 Severability............................................................................................. 48
10.6 No Amendments........................................................................................ 48
10.7 Judgment Currency................................................................................. 48
10.8 English Language.................................................................................... 49
10.9 Entire Agreement................................................................................... 49
10.10 Waiver of Sovereign Immunity............................................................. 50
10.11 Governing Law; Submission To Jurisdiction; Venue; Waiver Of Jury Trial. 50
10.12 No Third Party Beneficiaries............................................................... 52
10.13 Assignments.............................................................................................. 52
10.14 Special Exculpation................................................................................ 52
10.15 Reinstatement.......................................................................................... 52
10.16 Termination.............................................................................................. 53
10.17 Counterparts; Effectiveness................................................................ 53
EXHIBITS AND SCHEDULES [OMITTED]
EXHIBIT A-1 FORM OF SPONSOR LETTER OF CREDIT
EXHIBIT B FORM OF CONTINGENT EQUITY SUPPORT NOTICE
EXHIBIT C FORM OF CASH FLOW DEFICIENCY SUPPORT NOTICE
EXHIBIT D-1 FORM OF SUBORDINATED NOTE FOR SUBORDINATED SHAREHOLDER LOANS
EXHIBIT D-2-A FORM OF SUBORDINATED NOTE FOR [AAA] REPLACEMENT LOANS (Tranche A)
EXHIBIT D-2-B FORM OF SUBORDINATED NOTE FOR [AAA] REPLACEMENT LOANS (Tranche B)
EXHIBIT E FORM OF GIF/VALUE OF THE GAS NOTICE
SCHEDULE 5.3 TERMS OF SUBORDINATION
FUNDING AND SUPPORT AGREEMENT
This Funding and Support Agreement (“Agreement”), dated as of [•], 20[•], is made by and among [AAA], a corporation organized under the laws of [Name of the Country] (“[AAA]”), [BBB], a corporation organized under the laws of [Name of the Country] (“[BBB]”) ([AAA] and [BBB] are referred to collectively as the “[AAA] Parties” and individually as a “[AAA] Party”), [CCC], a corporation organized under the laws of [Name of the Country] (“[CCC]”), [DDD], not in its individual capacity but solely as the trustee for the Secured Parties under the Common Agreement (the “Trustee”), and [EEE], as administrative agent for the Senior Lenders under the Common Agreement (the “Administrative Agent”).
RECITALS
A. [AAA] (the “Borrower”), the Senior Lenders, the Hedge Banks and the Agents have entered into that certain Common Agreement dated as of [•], 20[•] (the “Common Agreement”), which constitutes Volume 2 of the Omnibus Agreement dated as of [•], 20[•], among among the Borrower, [Name of the Bank], [Name of the Bank], K‑EXIM, the [Name of the Bank] Facility Co-Financing Lenders, the [Name of the Bank] Facility Lenders and the Agents, Hedge Banks, Sponsors, Shareholders and other Persons party thereto, providing, subject to the terms and conditions thereof, for extensions of credit to the Borrower.
B. As provided in the Common Agreement, the Senior Lenders have agreed to make such extensions of credit available to the Borrower for the purpose of designing, constructing, furnishing, installing, testing, commissioning, owning, operating and maintaining a [•] MW natural gas fired combined cycle generating plant with diesel fuel firing capability to be located at [Adress].
C. [AAA], through its wholly‑owned subsidiary, [BBB], owns at least [•] percent ([•]%) of the issued and outstanding shares of Capital Stock of the Borrower (which percentage includes the Directors’ Shares), and [AAA] and [BBB] will benefit from the making of the Disbursements to the Borrower pursuant to the Common Agreement.
D. In order to induce the Secured Parties to enter into, and as a condition precedent to the Initial Disbursement to the Borrower under, the Financing Documents, [AAA], [BBB] and [CCC] desire to enter into this Agreement.
E. Concurrently herewith, and as further conditions precedent to the making of the Initial Disbursement, [FFF], [GGG] and [HHH], together with their related Shareholders, are entering into Funding and Support Agreements with the Trustee and the Administrative Agent.
ACCORDINGLY, the parties hereto hereby agree as follows:
AGREEMENT
1. Definitions; rules of interpretation
1.1 Terms Defined in Common Agreement.
All capitalized terms used and not otherwise defined herein shall have the meanings assigned to those terms in the Common Agreement.
1.2 Rules of Interpretation.
Except as otherwise expressly provided herein, the rules of interpretation set forth in Exhibit B to the Common Agreement shall apply mutatis mutandis to this Agreement.
1.3 Certain Defined Terms.
As used in this Agreement, the following terms have the following meanings:
“Acceleration Amount” has the meaning set forth in Section 6.1.7(b).
“Amortization Year” means (i) initially, the year beginning on the date that is [•] months prior to the initial Payment Date and ending on the second Payment Date, and (ii) thereafter, each subsequent year until all Obligations are indefeasibly paid in full beginning on the final day of the previous Amortization Year and ending on the second Payment Date after the final day of the previous Amortization Year.
“Base Equity Contributions” means, collectively, deposits to the [BBB] Base Equity Subaccount pursuant to Section 2.1.1, 6.1.3(a) or 6.1.3(b) (as the case may be), 6.1.6(a) or 6.2(a) and Base Equity Contributions by each Shareholder under and as defined in the other Funding and Support Agreements.
“Borrower Insolvency Event” has the meaning set forth in Section 6.1.7(a).
“CDS” means cash flow deficiency support in an amount equal to $[•].
“CDS Notice” has the meaning set forth in Section 3.4.2.
“CES” means, with respect to any Amortization Year, contingent equity support in an amount that would be required to be added to the CFADS shown in the Base Case Projections for the corresponding calendar year to make the Projected DSCR [•]:[•] for the calendar year 20[•], [•]:[•] for the calendar year 20[•], and [•]:[•] for the calendar year 20[•] and for each calendar year shown in the Base Case Projections thereafter; such amounts are equal to the following:
(a) for the first Amortization Year, $[•];
(b) for the second Amortization Year, $[•]; and
(c) for the third Amortization Year, $[•].
“CES Account” has the meaning set forth in the Trust Agreement.
“CES Notice” has the meaning set forth in Section 3.3.2.
“Change of Tax Law” has the meaning set forth in Section 3.6.1.
“Change of Tax Law Expense” has the meaning set forth in Section 3.6.1.
“Contingency Base Equity Contributions” means, collectively, deposits to the [BBB] Contingency Base Equity Subaccount pursuant to Section 2.1.2, 6.1.3(a) or 6.1.3(b) (as the case may be), 6.1.6(b) or 6.2(b) and Contingency Base Equity Contributions by each other Shareholder under and as defined in the other Funding and Support Agreements.
“Cost Overruns Contributions” means, collectively, deposits to the [BBB] Cost Overruns Subaccount pursuant to Section 2.2, 6.1.3(a) or 6.1.3(b) (as the case may be), 6.1.6(c) or 6.2(c) and Cost Overruns Contributions by each other Shareholder under and as defined in the other Funding and Support Agreements.
“Directors’ Shares” has the meaning set forth in the [BBB] Pledge Agreement.
“Eligible Bank” has the meaning set forth in the Trust Agreement.
“Equity Contributions” means, collectively, Base Equity Contributions, Contingency Base Equity Contributions and Cost Overruns Contributions.
“Equity Release Date” means the earliest to occur of: (a) the Completion Date; (b) the indefeasible payment in full by [III] of the Buyout Price in the full amount required by the ECA and in accordance with the requirements of Article 3.1 of the Direct Agreement; and (c) the Termination Date.
“GIF/Value of the Gas Notice” has the meaning set forth in Section 3.7.2.
“GIF/Value of the Gas Support” has the meaning set forth in Section 3.7.1.
“Judgment Currency” has the meaning set forth in Section 10.7.1.
“Judgment Currency Conversion Date” has the meaning set forth in Section 10.7.1.
“[AAA] Base Equity Limit” means $[•].
“[AAA] CDS Subaccount” has the meaning set forth in the Trust Agreement.
“[AAA] Contingency Base Equity Limit” means $[•].
“[AAA] Cost Overruns Limit” means $[•].
“[AAA] Excess Fronted Costs” means, at any time, the excess (as determined by the Administrative Agent) of the [AAA] Other Fronted Costs over the amount equal to (i) the [AAA] Contingency Base Equity Limit less (ii) the aggregate amount of Contingency Base Equity Contributions theretofore made by [BBB].
“[AAA] GIF/Value of the Gas Subaccount” has the meaning set forth in the Trust Agreement.
“[AAA] Other Fronted Costs” means, at any time, the excess (as determined by the Administrative Agent) of the [AAA] Unreimbursed Fronted Costs over the amount equal to (i) the [AAA] Base Equity Limit less (ii) the aggregate amount of Base Equity Contributions theretofore made by [BBB].
“[AAA] Pro Rata Share” means [•]%.
“[AAA] Punchlist Reserve Amount” means, at the relevant time, the lesser of (i) [•]% of the Punchlist Reserve, and (ii) the [AAA] Unfunded Replacement Loans Amount.
“[AAA] Replacement Loans” means (i) deposits to the [AAA] Replacement Loans Subaccount pursuant to Section 2.3 or 6.1.6(d), (ii) deposits to the Fronted Costs Subaccount pursuant to Section 2.3 and (iii) amounts outstanding under the [CCC] Facility which are converted to [AAA] Replacement Loans pursuant to Section 2.3.4.
“[AAA] Replacement Loans Subaccount” has the meaning set forth in the Trust Agreement.
“[AAA] Unfunded Base Equity Amount” means, at any time, the excess (as determined by the Administrative Agent) of (a) the [AAA] Base Equity Limit over (b) the sum of (i) the aggregate amount of Base Equity Contributions theretofore made by [BBB] and (ii) the [AAA] Unreimbursed Fronted Costs.
“[AAA] Unfunded Contingency Base Equity Amount” means, at any time, the excess (as determined by the Administrative Agent) of (a) the [AAA] Contingency Base Equity Limit over (b) the sum of (i) the aggregate amount of the Contingency Base Equity Contributions theretofore made by [BBB] and (ii) [AAA] Other Fronted Costs.
“[AAA] Unfunded Cost Overruns Amount” means, at any time, the excess (as determined by the Administrative Agent) of (a) the [AAA] Cost Overruns Limit over (b) the sum of (i) the aggregate amount of Cost Overruns Contributions theretofore made by [BBB] and (ii) [AAA] Excess Fronted Costs.
“[AAA] Unfunded Replacement Loans Amount” means, at any time, the excess (as determined by the Administrative Agent) of the [AAA] Replacement Loan Limit over the aggregate principal amount of [AAA] Replacement Loans theretofore made or deemed to have been made by [AAA], [BBB] or [CCC].
“[AAA] Unreimbursed Fronted Costs” means, at any time, the Fronted Costs which were funded by the [AAA] Parties and which have not been theretofore reimbursed pursuant to Section 2.2.4 of the Common Agreement.
“[BBB] Base Equity Subaccount” has the meaning set forth in the Trust Agreement.
“[BBB] Contingency Base Equity Subaccount” has the meaning set forth in the Trust Agreement.
“[BBB] Cost Overruns Subaccount” has the meaning set forth in the Trust Agreement.
“[BBB] Subaccounts” means, collectively, the [BBB] Base Equity Subaccount, the [BBB] Contingency Base Equity Subaccount, the [BBB] Cost Overruns Subaccount, the [AAA] CDS Subaccount and the [AAA] Replacement Loans Subaccount.
“Make Whole Adjustment” has the meaning set forth in Section 3.6.2.
“Obligation Currency” has the meaning set forth in Section
“PPU Fees Account” has the meaning set forth in the Trust Agreement.
“Ratings Downgrade Event” means the existence of either of the following circumstances:
(a) the long‑term senior or unsubordinated unsecured indebtedness of [AAA] is not rated [•] or better by [•] and [•] or better by [•]; or
(b) the long‑term senior or unsubordinated unsecured indebtedness of [AAA] is on a negative “watch list” that in the Administrative Agent’s view could reasonably be expected to result in such indebtedness not being rated [•] or better by [•] and [•] or better by [•], and the Administrative Agent notifies [AAA] thereof.
“Sponsor Letter of Credit” means an unconditional, irrevocable, direct pay letter of credit meeting the requirements set forth in Section 6.1.2.
“Subordinated Note” means a promissory note in the form described in Section 5.2.1(a) or Section 5.2.1(b), as applicable, and meeting the requirements set forth in Section 5.2.
“Subordinated Shareholder Loan” means Subordinated Loans made by a Shareholder, a Sponsor or [CCC] to the Borrower pursuant to this Agreement, other than [AAA] Replacement Loans.
“Tax Support Notice” has the meaning set forth in Section 3.6.1.
“Tranche B End Date” has the meaning set forth in the [AAA] Replacement Loan Agreement.
“Transfer” means to convey, sell, assign, lease (as lessor), transfer, pledge or otherwise dispose of.
“Transfer Conditions” has the meaning set forth in the [AAA] Pledge Agreement.
2. Equity contributions
2.1 Base Equity and Contingency Base Equity.
2.1.1 Base Equity Contributions. [BBB] shall, and [AAA] shall cause [BBB] to, make an equity contribution equal to the [AAA] Pro Rata Share of the total amount of Base Equity Contributions, each time required by Sections 2.1.2 and 2.1.3 of the Common Agreement for the payment of Planned Project Costs or for the funding of Pre-Funded Base Equity Contributions, on the following terms:
(a) in each month in which a Notice of Borrowing shall be delivered by the Borrower pursuant to Section 2.4 of the Common Agreement, the total amount of Base Equity Contributions for such month shall be the total amount of Base Equity Contributions certified by the Borrower in such Notice of Borrowing pursuant to Section 2.4.2(b) of the Common Agreement; and
(b) in each month in which a Notice of Project Costs is delivered by the Borrower pursuant to Section 2.5 of the Common Agreement, the total amount of Base Equity Contributions for such month shall be the total amount of Base Equity Contributions certified by the Borrower in such Notice of Project Costs pursuant to Section 2.5.2(b) of the Common Agreement.
[BBB] shall, and [AAA] shall cause [BBB] to, make the [AAA] Pro Rata Share of Base Equity Contributions each time it is required to do so hereunder by depositing in the [BBB] Base Equity Subaccount, in Dollars and in immediately available funds, (i) in each month in which a Notice of Borrowing is delivered pursuant to Section 2.4 of the Common Agreement, an amount equal to the [AAA] Pro Rata Share of the total amount of Base Equity Contributions certified by the Borrower in such Notice of Borrowing pursuant to Section 2.4.2(b) of the Common Agreement, which shall be deposited at least [•] Lending Business Days prior to the relevant Requested Drawdown Date and (ii) in each month in which a Notice of Project Costs is delivered pursuant to Section 2.5 of the Common Agreement, an amount equal to the [AAA] Pro Rata Share of the total amount of Base Equity Contributions certified by the Borrower in such Notice of Project Costs pursuant to Section 2.5.2(b) of the Common Agreement in respect of each Notice of Project Costs Transfer Date specified therein, which shall be deposited at least one Lending Business Day prior to the relevant Notice of Project Costs Transfer Date. Notwithstanding the foregoing, the maximum principal amount of Base Equity Contributions (including Pre-Funded Base Equity Contributions) that the [AAA] Parties collectively shall be required to make at any time pursuant to this Agreement, when aggregated with the principal amount of Base Equity Contributions theretofore made by the [AAA] Parties under this Agreement and the [AAA] Unreimbursed Fronted Costs to pay Planned Project Costs at that time, shall not exceed the [AAA] Base Equity Limit.
2.1.2 Contingency Base Equity Contributions. [BBB] shall, and [AAA] shall cause [BBB] to, make an equity contribution equal to the [AAA] Pro Rata Share of the total amount of Contingency Base Equity Contributions each time required by Sections 2.1.2 and 2.1.3 of the Common Agreement for the payment of Contingency Costs or for the funding of Pre-Funded Contingency Base Equity Contributions on the following terms:
(a) in each month in which a Notice of Borrowing shall be delivered by the Borrower pursuant to Section 2.4 of the Common Agreement, the total amount of Contingency Base Equity Contributions for such month shall be the total amount of Contingency Base Equity Contributions certified by the Borrower in such Notice of Borrowing pursuant to Section 2.4.2(c) of the Common Agreement; and
(b) in each month in which a Notice of Project Costs is delivered by the Borrower pursuant to Section 2.5 of the Common Agreement, the total amount of Contingency Base Equity Contributions for such month shall be the total amount of Contingency Base Equity Contributions certified by the Borrower in such Notice of Project Costs pursuant to Section 2.5.2(c) of the Common Agreement.
[BBB] shall, and [AAA] shall cause [BBB] to, make the [AAA] Pro Rata Share of Contingency Base Equity Contributions each time it is required to do so hereunder by depositing in the [BBB] Contingency Base Equity Subaccount, in Dollars and in immediately available funds, (i) in each month in which a Notice of Borrowing is delivered pursuant to Section 2.4 of the Common Agreement, an amount equal to the [AAA] Pro Rata Share of the total amount of Contingency Base Equity Contributions certified by the Borrower in such Notice of Borrowing pursuant to Section 2.4.2(c) of the Common Agreement, which shall be deposited at least [•] Lending Business Days prior to the relevant Requested Drawdown Date and (ii) in each month in which a Notice of Project Costs is delivered pursuant to Section 2.5 of the Common Agreement, an amount equal to the [AAA] Pro Rata Share of the total amount of Contingency Base Equity Contributions certified by the Borrower in such Notice of Project Costs pursuant to Section 2.5.2(c) of the Common Agreement in respect of each Notice of Project Costs Transfer Date specified therein, which shall be deposited at least one Lending Business Day prior to the relevant Notice of Project Costs Transfer Date. Notwithstanding the foregoing, the maximum principal amount of Contingency Base Equity Contributions (including Pre-Funded Contingency Base Equity Contributions) that the [AAA] Parties collectively shall be required to make at any time pursuant to this Agreement, when aggregated with the principal amount of Contingency Base Equity Contributions theretofore made by the [AAA] Parties under this Agreement and the [AAA] Other Fronted Costs to pay Contingency Costs, at that time shall not exceed the [AAA] Contingency Base Equity Limit.
2.1.3 Termination. [BBB]’s obligation to make, and [AAA]’s obligations to cause [BBB] to make, Base Equity Contributions pursuant to this Agreement and Contingency Base Equity Contributions pursuant to this Agreement shall terminate and each of the [AAA] Unfunded Base Equity Amount and the [AAA] Unfunded Contingency Base Equity Amount shall be deemed to equal zero on the earliest to occur of: (a) the Equity Release Date; and (b) subject to Section 6.3.4, the date, on or after the date on which the [AAA] Unreimbursed Fronted Costs is equal to zero, on which the aggregate amount of the Base Equity Contributions made by the [AAA] Parties is at least equal to the [AAA] Base Equity Limit and the aggregate amount of Contingency Base Equity Contributions made by the [AAA] Parties is at least equal to the [AAA] Contingency Base Equity Limit.
2.2 Cost Overruns Contributions.
2.2.1 Contributions. [BBB] shall, and [AAA] shall cause [BBB] to, make an equity contribution equal to the [AAA] Pro Rata Share of the total amount of Cost Overruns Contributions each time required by Sections 2.1.2 and 2.1.3 of the Common Agreement on the following terms:
(a) in each month in which a Notice of Borrowing shall be delivered by the Borrower pursuant to Section 2.4 of the Common Agreement, the total amount of Cost Overruns Contributions for such month shall be the total amount of Cost Overruns Contributions certified by the Borrower in such Notice of Borrowing pursuant to Section 2.4.2(e) of the Common Agreement; and
(b) in each month in which a Notice of Project Costs is delivered by the Borrower pursuant to Section 2.5 of the Common Agreement, the total amount of Cost Overruns Contributions for such month shall be the total amount of Cost Overruns Contributions certified by the Borrower in such Notice of Project Costs pursuant to Section 2.5.2(e) of the Common Agreement.
[BBB] shall, and [AAA] shall cause [BBB] to, make the [AAA] Pro Rata Share of Cost Overruns Contributions each time it is required to do so hereunder by depositing in the [BBB] Cost Overruns Subaccount, in Dollars and in immediately available funds, (i) in each month in which a Notice of Borrowing is delivered pursuant to Section 2.4 of the Common Agreement, an amount equal to the [AAA] Pro Rata Share of the total amount of Cost Overruns Contributions certified by the Borrower in such Notice of Borrowing pursuant to Section 2.4.2(e) of the Common Agreement, which shall be deposited at least [•] Lending Business Days prior to the relevant Requested Drawdown Date and (ii) in each month in which a Notice of Project Costs is delivered pursuant to Section 2.5 of the Common Agreement, an amount equal to the [AAA] Pro Rata Share of the total amount of Cost Overruns Contributions certified by the Borrower in such Notice of Project Costs pursuant to Section 2.5.2(e) of the Common Agreement in respect of each Notice of Project Costs Transfer Date specified therein, which shall be deposited at least one Lending Business Day prior to the relevant Notice of Project Costs Transfer Date. Notwithstanding the foregoing, the maximum principal amount of Cost Overruns Contributions that the [AAA] Parties collectively shall be required to make at any time pursuant to this Agreement, when aggregated with the principal amount of Cost Overruns Contributions theretofore made by the [AAA] Parties under this Agreement and the [AAA] Excess Fronted Costs to pay Cost Overruns, at that time, shall not exceed the [AAA] Cost Overruns Limit.
2.2.2 Termination. [BBB]’s obligation to make, and [AAA]’s obligation to cause [BBB] to make, Cost Overruns Contributions pursuant to this Agreement shall terminate and the [AAA] Unfunded Cost Overruns Amount shall be deemed to equal zero on the earliest to occur of: (a) the Equity Release Date, and (b) subject to Section 6.3.4, the date, on or after the date on which the [AAA] Unreimbursed Fronted Costs is equal to zero, on which the aggregate amount of Cost Overruns Contributions made by the [AAA] Parties is at least equal to the [AAA] Cost Overruns Limit.
2.3 [AAA] Replacement Loans.
2.3.1 The [AAA] Parties shall make [AAA] Replacement Loans as required by Sections 2.1.2, 2.1.3 and 2.2.3 and Section 5.11 of the Common Agreement for the payment of Planned Project Costs (including Fronted Costs) and Contingency Costs, and including the Punchlist Reserve.
(a) in each month in which a Notice of Borrowing shall be delivered by the Borrower pursuant to Section 2.4 of the Common Agreement, the total principal amount of [AAA] Replacement Loans for such month shall be the total principal amount of [AAA] Replacement Loans certified by the Borrower in such Notice of Borrowing pursuant to Section 2.4.2(d) of the Common Agreement; and
(b) in each month in which a Notice of Project Costs is delivered by the Borrower pursuant to Section 2.5 of the Common Agreement, the total principal amount of [AAA] Replacement Loans for such month shall be the total amount of [AAA] Replacement Loans certified by the Borrower in such Notice of Project Costs pursuant to Section 2.5.2(d) of the Common Agreement (which, in the case of the last Notice of Project Costs delivered prior to the Tranche B End Date, shall include [AAA] Replacement Loans in an amount equal to the [AAA] Punchlist Reserve Amount).
The [AAA] Parties shall make such [AAA] Replacement Loans by depositing in the [AAA] Replacement Loans Subaccount, (or, in the case of Fronted Costs, in the Fronted Costs Subaccount) in Dollars and in immediately available funds: (i) in each month in which a Notice of Borrowing is delivered pursuant to Section 2.4 of the Common Agreement an amount equal to the total principal amount of such [AAA] Replacement Loans certified by the Borrower in such Notice of Borrowing pursuant to Section 2.4.2(d) of the Common Agreement, which shall be deposited at least [•] Lending Business Days prior to the relevant Requested Drawdown Date and (ii) in each month in which a Notice of Project Costs is delivered pursuant to Section 2.5 of the Common Agreement, an amount at least equal to the total principal amount of such [AAA] Replacement Loans certified by the Borrower in such Notice of Project Costs pursuant to Section 2.5.2(d) of the Common Agreement in respect of each Project Costs Transfer Date specified therein, which amounts shall be deposited at least one Lending Business Day prior to the relevant Notice of Project Costs Transfer Date. Notwithstanding the foregoing, the maximum aggregate principal amount of [AAA] Replacement Loans that the [AAA] Parties collectively shall be required to make pursuant to this Section 2.3 shall not exceed the [AAA] Replacement Loans Limit.
2.3.2 [CCC]. The [AAA] Parties may perform their obligation to make [AAA] Replacement Loans under this Section 2.3 and Section 6.1.6(d) by causing [CCC] to make such [AAA] Replacement Loans in accordance with this Section 2.3 or Section 6.1.6(d); provided, that at the time [CCC] makes any such [AAA] Replacement Loan, [AAA] owns, directly or indirectly, [•] percent ([•]%) of the issued and outstanding shares of Capital Stock of [CCC].
2.3.3 Termination. The [AAA] Parties’ obligations to make [AAA] Replacement Loans pursuant to Section 2.3.1 shall terminate and the [AAA] Unfunded Replacement Loans Amount shall be deemed to equal zero on the earliest to occur of: (a) the Tranche B End Date and (b) subject to Section 6.3.4, the date on which the aggregate amount of [AAA] Replacement Loans made by the [AAA] Parties and/or [CCC] at least equal to the [AAA] Replacement Loans Limit.
2.3.4 [CCC] Facility. [CCC] agrees, not less than [•] Lending Business Days prior to the Requested Drawdown Date relating to the Initial Disbursement, to convert into [AAA] Replacement Loans the amount outstanding under the [CCC] Facility (as defined in the Common Agreement) that is specified by the Borrower in the Notice of Borrowing delivered with respect to the Initial Disbursement pursuant to Section 2.4.2(d) of the Common Agreement. The amount of [AAA] Replacement Loans required to be deposited by the [AAA] Parties to the Fronted Costs Subaccount under Section 2.3.1 with respect to the Requested Drawdown Date for the Initial Disbursement shall be reduced by the amount of the [CCC] Facility converted into [AAA] Replacement Loans in accordance with this Section. The Borrower shall promptly issue to [CCC] one or more Subordinated Notes evidencing such [AAA] Replacement Loans and [CCC] shall deliver such notes to the Trustee in [Name of the City] pursuant to the terms of the [CCC] Pledge Agreement.
3. Other Financial Obligations
3.1 ECA Securities.
3.1.1 Obligations. The [AAA] Parties shall fund:
(a) [•]% of any amounts necessary to obtain, maintain, reinstate and reimburse the issuer thereof for draws under the ECA Construction Performance Security and to pay any interest accruing thereon; and
(b) [•]% of any amounts necessary to obtain, maintain, reinstate and reimburse the issuer thereof for draws under the ECA Operation and Maintenance Security and to pay any interest accruing thereon.
3.1.2 Reimbursements. If and to the extent the Borrower reimburses the issuer of the ECA Construction Performance Security or the ECA Operation and Maintenance Security for any draw under such securities, the [AAA] Parties shall immediately refund such reimbursement to the Borrower by depositing to the O&M Account, in Dollars and in immediately available funds, [•]% of such reimbursement.
3.1.3 Treatment as Subordinated Loans. Any such reimbursement by the [AAA] Parties to the issuer of a drawing under such securities, or refund by the [AAA] Parties to the Borrower of the Borrower’s reimbursement of a drawing under such securities, as the case may be, shall be deemed to be a Subordinated Shareholder Loan made by [AAA] or [BBB], as the case may be, to the Borrower, and such Subordinated Shareholder Loan shall be deemed to extinguish the [AAA] Parties’ related subrogation claim against the Borrower or any other Shareholder; provided, however, that to the extent any amounts reimbursed or refunded by the [AAA] Parties with respect to a draw under the ECA Operation and Maintenance Security are reimbursed by [GGG] to the [AAA] Parties pursuant to the Reimbursement Sharing Agreement then: (i) such amounts shall no longer be deemed to be a Subordinated Shareholder Loan made by [AAA] or [BBB] to the Borrower but shall be deemed to be a Subordinated Shareholder Loan made by [GGG] or [JJJ], as the case may be, to the Borrower, and (ii) such reimbursement by [GGG] shall be deemed to extinguish the [AAA] Parties’ related subrogation claim against the Borrower or any other Shareholder with respect to the amount so reimbursed by [GGG].
3.1.4 Subordination Agreement. The [AAA] Parties shall cause each issuer of an ECA Construction Performance Security or ECA Operation and Maintenance Security to execute a subordination agreement for the benefit of the Secured Parties with respect to all amounts payable by the Borrower to such issuer in relation to such ECA Performance Security, which subordination agreement shall be substantially in the form of Exhibit N to the Common Agreement and otherwise in form and substance satisfactory in all respects to the Administrative Agent.
3.1.5 Draws Under Security. No draws made on the ECA Construction Performance Security or the ECA Operation and Maintenance Security or any reimbursement or refund thereof by the [AAA] Parties will be credited towards any obligation of either [AAA] Party hereunder, including the obligation to make or fund Equity Contributions or [AAA] Replacement Loans.
3.2 Initial Funding of Debt Service Reserve Account.
3.2.1 DSRA Commitment. On or prior to the earlier to occur of the ECA Completion Date and the Deemed Completion Date, the [AAA] Parties shall deposit into the Debt Service Reserve Account and in immediately available funds the sum required for the initial funding of the Debt Service Reserve Account in accordance with and in satisfaction of the terms and conditions therefor under the Trust Agreement. In lieu of making such cash deposit (or part thereof) the [AAA] Parties may cause to be issued to the Trustee a Reserve Letter of Credit for the sum required for the initial funding of the Debt Service Reserve Account in accordance with and in satisfaction of the terms and conditions therefor under the Trust Agreement. Such Reserve Letter of Credit shall be substantially in the form attached as Exhibit C to the Trust Agreement except that the Account Party (as defined therein) shall be a [AAA] Party and such Reserve Letter of Credit shall refer to the [AAA] Party’s obligations under this Section 3.2.
3.2.2 Treatment as Subordinated Shareholder Loans. Any deposit of cash into the Debt Service Reserve Account, and any reimbursement by the [AAA] Parties to the issuer of a drawing under such Reserve Letter of Credit, shall be deemed to be a Subordinated Shareholder Loan made to the Borrower by [AAA] or [BBB], as the case may be, in a principal amount equal to the amount of such deposit or the amount of such reimbursement, as applicable.
3.3 Contingent Equity Support.
3.3.1 CES Commitment. The [AAA] Parties shall make equity contributions or, subject to Section 5.1, Subordinated Shareholder Loans to the Borrower in accordance with this Section 3.3 in an amount in each Amortization Year, up to the excess of (a) the CES amount for such Amortization Year over (b) the amount, if any, of CES for such Amortization Year actually theretofore funded by [AAA] or [BBB] pursuant to this Section 3.3.
3.3.2 Application of Excess CES. The Administrative Agent may at any time and from time to time deliver to the Borrower and [AAA] a written notice in the form of Exhibit B (the “CES Notice”). In the event that the Administrative Agent delivers a CES Notice, then the [AAA] Parties shall, no later than the [•]th ([•]th) Business Day after delivery of such CES Notice, or, in the case of a deficiency in the Debt Service Accrual Account (as referred to in paragraph (c) of Exhibit B), a day that is no later than [•] Lending Business Days prior to the next Payment Date falling after the date of such CES Notice, deposit to the CES Account, in Dollars and in immediately available funds, the amount of CES requested in such CES Notice.
3.3.3 Expiration of CES. If, at the end of the third Amortization Year, the DSCR for such Amortization Year is less than the Projected DSCR for such Amortization Year calculated by the Administrative Agent using the Base Case Projections or calculated by the Borrower and confirmed by the Administrative Agent using the Base Case Projections, the Administrative Agent shall provide notice thereof to each of the Facility Agents, the Trustee, the Borrower, each Shareholder and each Sponsor. Within [•] Business Days after the date of such notice, the [AAA] Parties shall deposit to the CES Account, in Dollars and in immediately available funds, the remaining available CES amount for such Amortization Year as determined in accordance with Section 3.3.1. The proceeds of such Subordinated Shareholder Loan shall be transferred from the CES Account to the Debt Service Reserve Account without application in accordance with Section 10.4.1 (b)(i) of the Trust Agreement and without regard to the balance of the Debt Service Reserve Account at the time of such transfer.
3.3.4 Treatment as Subordinated Shareholder Loans. Except where CES is required by Section 5.1 to be contributed as equity, each deposit of funds to the CES Account pursuant to Section 3.3.2, 3.3.3, 6.2(d) or 6.1.3 shall constitute a Subordinated Shareholder Loan deemed to have been made to the Borrower by [AAA] or [BBB], as the case may be, on the date of such deposit and in a principal amount equal to the amount of such deposit.
3.4 Cash Flow Deficiency Support.
3.4.1 CDS Commitment. The [AAA] Parties shall make equity contributions or, subject to Section 5.1, Subordinated Shareholder Loans to the Borrower in a maximum amount not to exceed, in the aggregate, [•]% of CDS (which percentage equals $[•]) in accordance with this Section 3.4.
3.4.2 Funding CDS. The Administrative Agent may at any time and from time to time on or prior to the [•]th anniversary of the ECA Completion Date deliver to the Borrower and the [AAA] Parties a written notice in the form of Exhibit C (the “CDS Notice”). In the event that the Administrative Agent delivers a CDS Notice, then the [AAA] Parties shall on the [•]th Business Day after the delivery of such CDS Notice or, in the case of a deficiency in the Debt Service Accrual Account (as referred to in paragraph (b)(iii) of Exhibit C), a day that is no later than [•] Lending Business Days prior to the next Payment Date falling after the date of such CDS Notice, deposit in the [AAA] CDS Subaccount, in Dollars and in immediately available funds, an amount equal to [•]% of that portion of CDS requested in such CDS Notice.
3.4.3 Treatment as Subordinated Shareholder Loans. Except where CDS is required by Section 5.1 to be contributed as equity, each deposit of funds to the [AAA] CDS Subaccount pursuant to Section 3.4.2, 6.1.3 or 6.2(e) shall constitute a Subordinated Shareholder Loan deemed to have been made to the Borrower by [AAA] or [BBB], as the case may be, on the date of such deposit and in a principal amount equal to the amount of such deposit.
3.5 PPU Fees.
3.5.1 PPU Fees Commitment. If, after giving effect to the payment of other O&M Costs then due and after taking into account amounts on deposit in the Suspension Account available to be transferred to the Offshore O&M Account to cover such deficiencies pursuant to Section 9.5 of the Trust Agreement and which the Borrower has requested to be transferred to the Offshore O&M Account to cover such deficiencies pursuant to such Section, the amount in the Offshore O&M Account is or will be insufficient to pay the fees that are or will be due and payable to the GOP under the PPU from and after the earlier of the Deemed Completion Date and the ECA Completion Date, (a) the Borrower shall deliver to the [AAA] Parties, no later than [•] Business Days prior to the date upon which any such fees are due, a notice advising of the fact that payment of such fees is due and of the excess amount of such fees over the amount in the Offshore O&M Account available to pay such fees (provided, that [AAA]’s obligations under this Section 3.5 shall in no way be conditional upon delivery or receipt of such notice); and (b) the [AAA] Parties shall deliver to the Borrower not later than [•] Business Days prior to the date upon which any such fees are due, [•]% of the excess of the amount of such fees over the amount in the Offshore O&M Account available to pay such fees. The [AAA] Parties shall deliver all amounts to the Borrower in respect of PPU fees by wire transfer, in Dollars and in immediately available funds, to the PPU Fees Account.
3.5.2 Treatment as Subordinated Shareholder Loans. Any amounts delivered to the Borrower in respect of fees under the PPU shall be deemed to be Subordinated Shareholder Loans to the Borrower by [AAA] or [BBB], as the case may be, in a principal amount equal to such amounts.
3.6 Tax Support.
3.6.1 Notice. During any fiscal year of the Borrower in which (a) an ECA Change of Law (as described in Article 7.4.a.i of 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 on debt (a “Change of Tax Law”) occurs, and (b) such Change of Tax Law will increase the Borrower’s [Name of the Country] tax liability due for such fiscal year (after taking into account all available tax credit or other benefits arising from the payment of such additional tax or Make Whole Adjustment) from the level of [Name of the Country] tax liability that the Borrower would have incurred but for such Change of Tax Law and reduce the Borrower’s net income (for all purposes of this Section 3.6, such amount as determined in accordance with [Name of the Country] tax law) for such fiscal year from the level of net income that the Borrower would have received but for such Change of Tax Law, the Borrower shall provide to the Administrative Agent a copy of a forecast prepared by its Accountants of the incremental amount of taxes payable by the Borrower arising out of such Change of Tax Law during such fiscal year as well as for each fiscal year thereafter during the Cooperation Period. Thereafter, the Borrower shall provide [AAA] and [BBB] from time to time with written notice (each, a “Tax Support Notice”) that indicates the actual incremental amount of [Name of the Country] tax payable by the Borrower, arising out of such Change of Tax Law, as evidenced by filings made by the Borrower with, or assessed by the relevant Government Authority, or as the Borrower may reasonably determine in accordance with the then current interpretation of applicable tax laws and regulations, which if requested by [AAA] are supported by the Accountants (a “Change of Tax Law Expense”), and Make Whole Adjustment, 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 Borrower.
3.6.2 Downside Payment. Within [•] Business Day prior to the date on which the Change of Tax Law Expense is stated to be due and payable as specified in the applicable Tax Support Notice, [AAA] shall deposit, or cause [BBB] to deposit, to the Onshore Revenue Account an amount equal to (a) the Change of Tax Law Expense indicated in such notice, plus (b) an upward adjustment (a “Make Whole Adjustment”) as reasonably determined by the Accountants that (i) reflects the applicable [Name of the Country] taxes to be paid by the Borrower as a result of the Borrower’s additional income, if any, derived from the receipt of payment of such Change of Tax Law Expense, and (ii) places the Borrower in the same position as if no income tax were applied to the income realised by such payment.
3.7 GIF and Value of the Gas
3.7.1 GIF and the Value of the Gas Commitment/Notice. The [AAA] Parties shall make equity contributions or, subject to Section 5.1, Subordinated Shareholder Loans to the Borrower to the extent that the Borrower is obligated pursuant to Article 6.5 of the ECA to pay to [III] any Gas Inventory Fee (as defined in the ECA) or value of the gas (as described in Article 6.5 of the ECA) (“GIF/Value of the Gas Support”) as a result of any of the Construction Contractors exercising any of its rights under Clause 9.1.2.1 of the Supply Contract and/or the Construction Contract. The Borrower shall calculate any GIF/Value of the Gas Support that may be due from time to time to [III] and provide notice of the amount thereof to the Administrative Agent and the Trustee (with a copy to the [AAA] Parties) no later than [•] Business Days prior to the due date thereof to [III].
3.7.2 Funding GIF/Value of the Gas. The Administrative Agent may at any time and from time to time deliver to the Borrower and the [AAA] Parties a written notice in the form of Exhibit E (the “GIF/Value of the Gas Notice”). In the event that the Administrative Agent delivers a GIF/Value of the Gas Notice, then the [AAA] Parties shall on the 10th Business Day after the delivery of such GIF/Value of the Gas Notice, deposit in the [AAA] GIF/Value of the Gas Account, in Dollars and in immediately available funds, the amount requested in such GIF/Value of the Gas Notice.
3.7.3 Treatment as Subordinated Shareholder Loans. Except where GIF/Value of the Gas Support is required by Section 5.1 to be contributed as equity, each deposit of funds to the [AAA] GIF/Value of the Gas Account pursuant to Section 3.7.2 shall constitute a Subordinated Shareholder Loan deemed to have been made to the Borrower by [AAA] or [BBB], as the case may be, on the date of such deposit and in a principal amount equal to the amount of such deposit.
3.8 [CCC].
3.8.1 Financial Obligations. The [AAA] Parties may perform their financial obligations under this Section 3 and Sections 6.2(d) and 6.2(e) by causing [CCC] to perform such financial obligations in accordance with the terms of Section 3 or Section 6.2(d) or 6.2(e), as applicable; provided that, at the time [CCC] performs such financial obligations, [AAA] owns, directly or indirectly, [•] percent ([•]%) of the issued and outstanding shares of Capital Stock of [CCC].
3.8.2 Treatment as Subordinated Shareholder Loans. Where and to the extent that [CCC] performs any of the [AAA] Parties’ financial obligations under Section 3 or Sections 6.2(d) or 6.2(e) references to the [AAA] Parties in Sections 3.1.3, 3.2.2, 3.3.4, 3.4.3, 3.5.2 and/or 3.7.3, as applicable, shall be deemed to include reference to [CCC].
4. nature of obligations
4.1 Joint and Several Liability.
[AAA] and [BBB] shall be jointly and severally liable for all obligations of a [AAA] Party under this Agreement.
4.2 Instrument for the Payment of Money.
Each [AAA] Party hereby acknowledges that its obligations set forth in Sections 2 and 3 constitute an instrument for the payment of money, and consents and agrees that any of the Trustee, the Administrative Agent or any other Secured Party, at its sole option, in the event of a dispute by either [AAA] Party regarding the payment of any moneys due hereunder, shall have the right to bring a motion for summary judgment in lieu of complaint under [Name of the City] Civil Practice Law and Rules Section 3213.
5. Form of EQUITY Contributions
5.1 Subordinated Loans.
5.1.1 Subordinated Loans. Equity Contributions under Sections 2.2, 6.1.6 and 6.2, contributions of CES under Section 3.3, CDS under Section 3.4 and GIF/Value of the Gas Support under Section 3.7 may be made in the form of Subordinated Shareholder Loans to the Borrower by [BBB] or [AAA] or (in the case of contributions of CES, CDS and GIF/Value of the Gas Support) by [CCC], as the case may be, rather than cash equity or additional paid in capital if and to the extent that:
(a) such Subordinated Shareholder Loans comply with this Section 5;
(b) notwithstanding such Equity Contributions and contributions of CES, CDS and GIF/Value of the Gas Support being made in the form of Subordinated Shareholder Loans, the Borrower will at all times maintain such equity capital as is necessary to meet the requirements of Applicable Law;
(c) the Borrower is not then subject to Insolvency Proceedings; and
(d) the making of any such Subordinated Shareholder Loan would not contravene any Project Document or Applicable Law and the Borrower is not prohibited by Applicable Law or otherwise from incurring such indebtedness.
Each such Subordinated Shareholder Loan shall be deemed to have been made on the date of the corresponding deposit to the applicable [BBB] Subaccount or the CES Account, as the case may be, and in a principal amount equal to the amount of such deposit.
5.2 Terms of Subordinated Loans.
5.2.1 Subordinated Notes and Documentation.
(a) Each Subordinated Shareholder Loan shall be evidenced by a promissory note substantially in the form of Exhibit D-1 and otherwise shall be in form and substance satisfactory in all respects to the Administrative Agent.
(b) Each [AAA] Replacement Loan shall be evidenced by a promissory note substantially in the form of either Exhibit D‑2A or Exhibit D‑2B and otherwise shall be in form and substance satisfactory in all respects to the Administrative Agent.
5.2.2 Pledge and Delivery. Each Subordinated Note shall be pledged and delivered to the Trustee in [Name of the City] in accordance with the requirements of Section 3.1 or 3.2 as the case may be of the [BBB] Pledge Agreement (if such Subordinated Shareholder Loan is made by [BBB]), Section 3.1 or 3.2, as the case may be, of the [CCC] Pledge Agreement (if such Subordinated Shareholder Loan or [AAA] Replacement Loan is made by [CCC]) or Section 3.1 or 3.2, as the case may be, of the [AAA] Pledge Agreement (if such Subordinated Shareholder Loan or [AAA] Replacement Loan is made by [AAA]).
5.2.3 Subordinated Loan Documentation. Any documents relating to or evidencing the Subordinated Shareholder Loans or the [AAA] Replacement Loans (including the [AAA] Replacement Loan Agreement) shall be made expressly subject to the terms and conditions of this Agreement and shall otherwise be satisfactory in form and substance to the Administrative Agent. [BBB], [AAA] and/or [CCC], as applicable, shall promptly deliver a copy of each such document (other than the Subordinated Notes, the originals of which shall be delivered pursuant to Section 5.2.2) to the Administrative Agent. Such documents shall not be amended or otherwise modified without the prior written consent of the Administrative Agent; provided, that the consent of the Administrative Agent shall not be required for amendments that (i) reduce the principal amount of, (ii) extend the date for repayment of, (iii) reduce the interest rate applicable to, or (iv) extend the interest payment dates for, any such Subordinated Shareholder Loan or [AAA] Replacement Loan, or for minor technical amendments that correct manifest errors in such documents.
5.3 Subordination.
Each of [AAA], [BBB] and [CCC] agrees that:
(a) each Subordinated Shareholder Loan and [AAA] Replacement Loan made or deemed to be made to the Borrower pursuant to this Agreement; and
(b) any and all rights that either [AAA], [BBB] or [CCC] may have to receive Restricted Payments,
shall be fully subordinated to the Obligations in accordance with and shall be deemed to be Subordinated Indebtedness under (and as defined in) the Terms of Subordination set forth in Schedule 5.3, which are hereby incorporated in this Agreement by this reference. [AAA], [BBB] and [CCC] acknowledge and agree that the Subordinated Notes, and the documents referred to in Section 5.2.3 shall, collectively, be deemed to be Subordinated Indebtedness Documents (as defined in such Terms of Subordination) and that each of [AAA], [BBB] and [CCC] shall be deemed to be Subordinated Parties under (and as defined in) such Terms of Subordination.
5.4 Conversion of Subordinated Shareholder Loans.
[BBB] may at any time, whether to comply with Applicable Law or otherwise, by written notice to the Borrower (with a copy to the Trustee and the Administrative Agent) convert all or any portion of Subordinated Shareholder Loans held by it into shares of Capital Stock (as defined in the Shareholders’ Agreement) of the Borrower in accordance with the Shareholders’ Agreement, which shares of Capital Stock shall be pledged and delivered to the Trustee in [Name of the City] in accordance with the requirements of Section 3.1 or Section 3.2, as the case may be, of the [BBB] Pledge Agreement.
6. Acceleration of Equity Contributions; Sponsor Letters of Credit
6.1 Acceleration of Equity Contributions.
6.1.1 Upon Ratings Downgrade. Subject to Section 6.1.6, if, on or after the date hereof and, with respect to clauses (a), (b) and (c) of this Section 6.1.1, prior to the Equity Release Date, there shall occur a Ratings Downgrade Event, then within 20 days after the occurrence of such Ratings Downgrade Event [AAA] shall deliver to the Trustee one or more Sponsor Letters of Credit in an aggregate face amount equal to:
(a) the [AAA] Unfunded Base Equity Amount;
(b) the [AAA] Unfunded Contingency Base Equity Amount;
(c) the [AAA] Unfunded Cost Overruns Amount;
(d) an amount equal to (i) the excess of (A) the CES amount for the then current Amortization Year over (B) the CES amount actually funded by [AAA], [BBB] or [CCC] pursuant to Section 3.3 for such Amortization Year plus (ii) the aggregate of the CES amounts for each succeeding Amortization Year; and
(e) an amount equal to the excess of (i) $[•] over (ii) the portion of CDS actually funded by [AAA], [BBB] or [CCC] pursuant to Section 3.4.
In the event that the aggregate amount of the [AAA] Unfunded Base Equity Amount, the [AAA] Unfunded Contingency Base Equity Amount and the [AAA] Unfunded Cost Overruns Amount is increased (as the result of the reimbursement to either of the [AAA] Parties for Fronted Costs or otherwise), [AAA] shall within [•] days cause the amount of such Sponsor Letter(s) of Credit to be increased to an amount that is no less than such increased aggregate amount.
6.1.2 Requirements. Each Sponsor Letter of Credit shall meet the following requirements to the satisfaction of the Administrative Agent:
(a) it shall be issued by an Eligible Bank and in the form attached hereto as Exhibit A;
(b) there shall be no conditions to any drawing thereunder other than the submission of a drawing request substantially in the form attached to such Sponsor Letter of Credit;
(c) no agreement, instrument or document executed in connection with such Sponsor Letter of Credit shall obligate the Borrower or any Shareholder to make any reimbursement or any other payment to the issuer thereof or otherwise with respect to such Sponsor Letter of Credit; and
(d) no agreement, instrument or document executed in connection with such Sponsor Letter of Credit shall provide the issuer thereof or any other Person with any claim against the Borrower, any Shareholder, the Trustee, the Administrative Agent or any other Secured Party, or against any Collateral, whether for costs of maintenance, reimbursement of amounts drawn under such Sponsor Letter of Credit or otherwise.
6.1.3 Drawings.
(a) If any Equity Contribution or funding of any portion of CES or CDS is not made as required under this Agreement, including under Section 6.1.6, the Administrative Agent may direct the Trustee by written notice to make drawings under any Sponsor Letters of Credit theretofore delivered pursuant to this Agreement in an aggregate amount equal to the failed contribution or funding (as specified in such notice to the Trustee) and to deposit the proceeds thereof into the applicable [BBB] Subaccount (as specified in such notice to the Trustee) or (in the case of CES) the CES Account in satisfaction of the [AAA] Parties’ obligations in respect of such funding. The amount available under each Sponsor Letter of Credit under which a drawing is made shall be automatically reduced by the amount of such drawing.
(b) The Administrative Agent may direct the Trustee by written notice to make drawings of the full amount available under any existing Sponsor Letter of Credit on the first [Name of the City] Business Day to occur (i) after the date that is [•] days prior to the scheduled expiration date of such Sponsor Letter of Credit if the issuer delivers to the Trustee a notice of non-renewal of such Sponsor Letter of Credit, and no replacement Sponsor Letter of Credit has been delivered and the Trustee may otherwise do so in compliance with the terms of such Sponsor Letter of Credit or (ii) [•] days after the credit rating of the senior unsecured long-term indebtedness of the issuer of such Sponsor Letter of Credit falls below the Issuing Bank Minimum Required Level (as defined in the Trust Agreement).
6.1.4 Reduction in Amounts. If following the delivery of any Sponsor Letter of Credit, the [AAA] Parties and/or [CCC], as applicable, fund any Equity Contributions or any portion of CES or CDS in cash, then the [AAA] Parties may have the Administrative Agent direct the Trustee, by written notice, to reduce the face amount of one or more of the Sponsor Letters of Credit theretofore delivered pursuant to Section 6.1.1 to support its obligation to fund such Equity Contributions, CES or CDS, as specified in such notice, in an aggregate amount equal to the amount of the Equity Contributions, CES or CDS so funded.
6.1.5 Cancellation. Promptly following funding in full by the [AAA] Parties and/or [CCC], as applicable, of the required amount of Equity Contributions, CES and/or CDS with respect to which a Sponsor Letter of Credit was provided pursuant to Section 6.1.1 or termination of the obligation of the [AAA] Parties to make Equity Contributions or to contribute CES or CDS, as applicable, such Sponsor Letter of Credit shall be returned by the Trustee to [AAA] for cancellation.
6.1.6 Upon Event of Default. Subject to Section 6.1.7, within [•] Business Days after delivery by the Administrative Agent to a [AAA] Party of a notice advising of the occurrence of an Event of Default prior to the Equity Release Date, and provided that the Event of Default remains continuing:
(a) [BBB] shall, and [AAA] shall cause [BBB] to, deposit into the [BBB] Base Equity Subaccount, in Dollars and in immediately available funds, an amount equal to the [AAA] Unfunded Base Equity Amount;
(b) [BBB] shall, and [AAA] shall cause [BBB] to, deposit into the [BBB] Contingency Base Equity Subaccount, an amount equal to the [AAA] Unfunded Contingency Base Equity Amount;
(c) [BBB] shall, and [AAA] shall cause [BBB] to, deposit into the [BBB] Cost Overruns Subaccount, in Dollars and in immediately available funds, an amount equal to the [AAA] Unfunded Cost Overruns Amount; and
(d) the [AAA] Parties shall deposit into the [AAA] Replacement Loans Subaccount, in Dollars and in immediately available funds, an amount equal to the [AAA] Unfunded Replacement Loans Amount.
Notwithstanding the foregoing, the [AAA] Parties shall have no obligation to deposit amounts pursuant to this Section 6.1.6, in excess of an amount that, together with the amounts actually deposited by the other Shareholders and Sponsors pursuant to the corresponding provisions of the other Funding and Support Agreements, equals the total amount that would be due and payable to the Secured Parties under the Financing Documents upon acceleration of the Senior Loans. In the event that any excess amount is so deposited, then the Administrative Agent shall instruct the Trustee to promptly transfer such excess amount into the Dividend Account or, where so directed by the Borrower by written notice to the Trustee, to [AAA], [BBB] or [CCC] (to such account in the name of [AAA], [BBB], or [CCC] as the Borrower shall specify in such written notice).
6.1.7 Purchase of Participating Interest.
(a) If by reason of Insolvency Proceedings relating to the Borrower or any other event described in Section 9.1.8 of the Common Agreement with respect to the Borrower (a “Borrower Insolvency Event”), all or any portion of any Equity Contribution of the [AAA] Parties or [AAA] Replacement Loan theretofore received by the Trustee is rescinded and/or returned to either [AAA] Party or to [CCC], the [AAA] Parties shall immediately following demand upon them by the Administrative Agent purchase at par an undivided participating interest in the Senior Loans then outstanding (pro rata among the Senior Credit Facilities) in an amount equal to the amount of such Equity Contribution or [AAA] Replacement Loan which has been so rescinded or returned by paying to the Trustee, in Dollars and in immediately available funds, in an amount equal to such portion of such Equity Contribution or [AAA] Replacement Loan, which purchase and payment shall discharge the [AAA] Parties’ obligation to make such Equity Contribution or [AAA] Replacement Loan (or portion thereof).
(b) In the event that any Borrower Insolvency Event that constitutes an Event of Default precedes the making by either [AAA] Party or [CCC] of any cash deposits required to be made pursuant to Section 6.1.6, the [AAA] Parties shall immediately following demand upon them by the Administrative Agent purchase at par an undivided participating interest in the Senior Loans then outstanding (pro rata among the Senior Credit Facilities) in an amount equal to the aggregate of the [AAA] Unfunded Base Equity Amount, the [AAA] Unfunded Contingency Base Equity Amount, the [AAA] Unfunded Cost Overruns Equity Amount and the [AAA] Unfunded Replacement Loans Amount (such aggregate amount, the “Acceleration Amount”) by paying to the Trustee, in Dollars and in immediately available funds, an amount equal to the Acceleration Amount, which purchase and payment shall discharge the [AAA] Parties’ obligation to make such cash deposits pursuant to Section 6.1.6.
(c) Each [AAA] Party hereby agrees that any participating interest in the Senior Loans purchased by it pursuant to this Section 6.1.7 shall be subordinated in accordance with the Terms of Subordination set forth in Schedule 5.3 to the interest in the Senior Loans and other Obligations retained by the Secured Parties.
(d) Notwithstanding the purchase and ownership by the [AAA] Parties of a participating interest in the Senior Loans, the Secured Parties shall have the right, in their sole discretion in each instance and without any notice to the [AAA] Parties, to the extent not otherwise expressly prohibited under the terms of the Financing Documents, (i) to agree to the modification or waiver of any of the terms of the Financing Documents or any other agreement or instrument relating thereto, (ii) to consent to any action or failure to act by the Borrower, and (iii) to exercise or refrain from exercising any right, power or privilege which the Secured Parties may have under the Financing Documents or any other agreement or instrument relating thereto, including the right at any time to declare, or refrain from declaring, the Senior Loans due and payable upon the occurrence of any Event of Default, and to foreclose and sell or exercise any other remedy, or refrain from foreclosing and selling or exercising any other remedy, with respect to any Collateral, in each case in accordance with the provisions of the Financing Documents. Moreover, the [AAA] Parties shall not have any voting, consent or other decision‑making right or power available to any Senior Lender under the Intercreditor Agreement or any other Financing Document as a consequence of its acquisition of a participating interest in the Senior Loans pursuant to this Section 6.1.7. No Secured Party shall be liable to either [AAA] Party for any error in judgment or for any action taken or omitted to be taken by it pursuant to or in connection with the Financing Documents or the Project while either [AAA] Party holds a participating interest in the Senior Loans. No Secured Party shall have any duty or responsibility to provide either [AAA] Party with any credit or other information concerning the affairs, financial condition or business of the Borrower which may come into their possession or the possession of any of their respective Affiliates.
(e) The obligation of the [AAA] Parties under this Section 6.1.7 to purchase participating interests in the Senior Loans is absolute and unconditional and shall not be affected by the occurrence of any Default or Event of Default or any other circumstance, including any circumstance of the nature described in Section 9.3.
6.2 Cash Deposits Option.
In lieu of delivering one or more Sponsor Letters of Credit (or any portion thereof) required by Section 6.1.1, the [AAA] Parties may make cash deposits in an aggregate amount equal to the amount of such Sponsor Letters of Credit required under Section 6.1.1 (or the portion thereof not so delivered), in Dollars and in immediately available funds, as follows:
(a) into the [BBB] Base Equity Subaccount, an amount equal to the [AAA] Unfunded Base Equity Amount;
(b) into the [BBB] Contingency Base Equity Subaccount, an amount equal to the [AAA] Unfunded Contingency Base Equity Amount;
(c) into the [BBB] Cost Overruns Subaccount, an amount equal to the [AAA] Unfunded Cost Overruns Amount;
(d) into the CES Account, an amount equal to (i) the excess of (A) the CES amount for the then current Amortization Year over (B) the CES amount actually funded by [AAA], [BBB] or [CCC] pursuant to Section 3.3 of such Amortization Year plus (ii) the aggregate of the CES amounts for each succeeding Amortization Year; and
(e) into the [AAA] CDS Subaccount, an amount equal to the excess of (i) $[•] over (ii) the portion of CDS actually funded by [AAA], [BBB] or [CCC] pursuant to Section 3.4.
In the event that the aggregate amount of the [AAA] Unfunded Base Equity Amount, the [AAA] Unfunded Contingency Base Equity Amount and the [AAA] Unfunded Cost Overrun Amount is increased (as the result of the reimbursement to either of the [AAA] Parties for Fronted Costs or otherwise), [AAA] shall, to the extent such increased aggregate amount is not included in the Sponsor Letter(s) of Credit delivered under Section 6.1.1, within 10 days increase the cash deposits under this Section 6.2 to an amount that is no less than such increased aggregate amount.
6.3 Return of Cash Deposits and Letters of Credit.
6.3.1 Ratings Upgrade. In the event that the [AAA] Parties have made a cash deposit or caused a Sponsor Letter of Credit to be issued upon the occurrence of a Ratings Downgrade Event pursuant to Section 6.1.1 or 6.2 (or where such a Sponsor Letter of Credit has been issued, the Trustee has drawn the full amount available thereunder pursuant to Section 6.1.3(b)) and [AAA] is later upgraded or removed from the negative “watch list” so that neither clause (a) nor clause (b) of the definition of Ratings Downgrade Event continues to apply, then the Trustee shall promptly return to [AAA] for cancellation any Sponsor Letters of Credit delivered pursuant to Section 6.1.1 and deposit into the Dividend Account or, where so directed by the Borrower by written notice to the Trustee, transfer to [AAA], [BBB] or [CCC] (to such account in the name of [AAA], [BBB] or [CCC] as the Borrower shall specify in such written notice) any remaining cash deposits made pursuant to Section 6.2 and any remaining amounts drawn under a Sponsor Letter of Credit pursuant to Section 6.1.3(b).
6.3.2 Cure of Event of Default. In the event that the [AAA] Parties or [CCC] have made cash deposits upon the occurrence of an Event of Default pursuant to Section 6.1.6 and such Event of Default is cured to the satisfaction of the Administrative Agent (as notified to the Trustee by the Administrative Agent) prior to the date upon which the Senior Loans are accelerated pursuant to Section 9.2 of the Common Agreement, then the Trustee shall promptly deposit into the Dividend Account or, where so directed by the Borrower by written notice to the Trustee, transfer to [AAA], [BBB] or [CCC] (to such account in the name of [AAA], [BBB] or [CCC] as the Borrower shall specify in such written notice) any remaining cash deposits made pursuant to Section 6.1.6.
6.3.3 Substitution. In the event the [AAA] Parties fund any Equity Contributions or any portion of CES or CDS in cash pursuant to Section 6.2 in lieu of delivering one or more Sponsor Letters of Credit pursuant to Section 6.1.1 and [AAA] subsequently delivers any such Sponsor Letter of Credit with respect to such amount previously funded in cash, then the Trustee shall promptly deposit into the Dividend Account or, where so directed by the Borrower by written notice to the Trustee, transfer to [AAA], [BBB] or [CCC] (to such account in the name of [AAA], [BBB] or [CCC] as the Borrower shall specify in such written notice) an amount equal to the aggregate face amount of such Sponsor Letter of Credit.
6.3.4 Reinstatement of Obligations. Upon the deposit into the Dividend Account or transfer to [AAA], [BBB] or [CCC], as applicable, of any cash deposits or amounts drawn under a Sponsor Letter of Credit pursuant to Section 6.3.1 or 6.3.2, the [AAA] Parties’ obligation to fund Equity Contributions, [AAA] Replacement Loans, CES and CDS with respect to which such cash deposits were made or Sponsor Letter of Credit was drawn shall be reinstated in the amount so deposited in the Dividend Account or transferred to [AAA], [BBB] or [CCC], as applicable, as if such cash deposits had never been made by the [AAA] Parties or [CCC] or amounts had never been drawn under a Sponsor Letter of Credit, as the case may be.
6.3.5 Completion. On the Equity Release Date, the Trustee shall transfer to the Dividend Account or, where so directed by the Borrower by written notice to the Trustee, to [AAA] or [BBB] (to such account in the name of [AAA] or [BBB] as the Borrower shall specify in such written notice) any remaining cash deposits made pursuant to Section 6.2(a), 6.2(b) or 6.2(c).
7. Representations and Warranties
[AAA] makes all of the following representations and warranties to and in favor of the Trustee, the Administrative Agent, and each other Secured Party as of the date hereof, as of the date of each Disbursement, as of the Completion Date and as of any other date that the representations and warranties are required to be made or deemed made pursuant to this Agreement or any other Financing Document (except for representations which relate only to an earlier date or to a later or specified date), and all of these representations and warranties shall survive the execution and delivery of this Agreement:
7.1 Organization, Power and Status.
[AAA] is a corporation duly organized and validly existing under the laws of [Name of the Country].
7.2 Power and Authority.
[AAA] (a) has the requisite power and authority to (i) execute, deliver and perform each Transaction Document to which it is a party in accordance with its terms, (ii) own and operate the Property it purports to own, (iii) carry on its business as now being conducted and as proposed to be conducted, (iv) lease, possess or otherwise use the Property leased, possessed or otherwise used by it, (v) incur Indebtedness and create Liens on its Property and (vi) do all other things necessary or appropriate in respect of the transactions contemplated by the Transaction Documents to which it is a party and the Project and (b) is duly qualified to do business in all jurisdictions where qualification is necessary for any of the foregoing.
7.3 Due Authorization, Execution and Delivery.
All action on the part of [AAA] that is required for the authorization, execution, delivery and performance by it of each Transaction Document to which it is a party has been duly and effectively taken. The obligations of [AAA] under each Transaction Document to which it is a party are the legal, valid and binding obligations of [AAA] enforceable in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity (regardless of whether enforcement thereof is sought in a proceeding at law or in equity).
7.4 No Violation or Conflict.
None of the execution, delivery or performance of any Transaction Document to which [AAA] is a party, or the consummation of any of the transactions contemplated thereby, or performance of or compliance with the terms and conditions thereof, (a) requires the approval or consent of any counterparty or holder or trustee of any debt or other obligation of [AAA] that has not been obtained except where the failure to obtain such approval could not reasonably be expected to have a Material Adverse Effect, (b) constitutes a material default by [AAA] under, or results in the material violation of, any Transaction Document or any other material contract, agreement or arrangement to which it is a party or by which it or any of its property or assets may be bound or affected, (c) violates the material terms of any Applicable Law applicable to [AAA], the Project or any of the Collateral, (d) constitutes a default under or results in the violation of any provision of [AAA]’s Charter Documents, or (e) results in the creation or imposition of any Lien (other than Permitted Liens) on any of [AAA]’s Property or the Collateral.
7.5 Government Approvals.
7.5.1 Effectiveness. All Project Approvals that are required to be obtained by [AAA] under the Financing Documents are set forth in Part 5 of Schedule 6.8.1 to the Common Agreement and Part 5 of Schedule 6.8.5 to the Common Agreement. All Project Approvals set forth in Part 5 of Schedule 6.8.1 to the Common Agreement as of the date hereof are all of the Project Approvals that are required under the Financing Documents to be obtained by [AAA] as of the Initial Disbursement Date. As of the Initial Disbursement Date and each subsequent date that this representation is made, all of the Project Approvals set forth on Schedule 6.8.1 to the Common Agreement (as updated by the Borrower in accordance with Section 4.2.8 of the Common Agreement or otherwise by delivery of an updated Schedule to the Administrative Agent) are all of the Project Approvals that are required under the Financing Documents to be obtained by [AAA] as of such date, have been duly and validly issued, are in full force and effect and are Non‑Appealable.
7.5.2 Government Approvals Not Yet Obtained. The Project Approvals set forth in Part 5 of Schedule 6.8.5 to the Common Agreement are not required under Applicable Law to be obtained by [AAA] until after the Initial Disbursement Date. [AAA] does not have any reason to believe that it will be unable to obtain each of the Project Approvals set forth in Part 5 of Schedule 6.8.5 to the Common Agreement in the ordinary course of business when required under Applicable Law.
7.5.3 Compliance. [AAA] is in material compliance with all Project Approvals that are required to be obtained by or are otherwise applicable to it.
7.6 No Proceedings.
There are no actions, suits or proceedings, claims or investigations at law or in equity by or before any Government Authority, arbitral tribunal or other body pending or, to the best of [AAA]’s knowledge, threatened against or affecting it, or its Property, or challenging, or that are likely to affect, the validity or enforceability of any Transaction Document to which it is a party, other than actions, suits or proceedings that (if adversely determined) could not reasonably be expected to have a Material Adverse Effect.
7.7 No Defaults Under Court Orders.
[AAA] is not in default under any order of any court, arbitrator, administrative agency or other Government Authority, other than defaults that could not reasonably be expected to have a Material Adverse Effect.
7.8 Defaults.
No Default or Event of Default relating to [AAA], and to the best of [AAA]’s knowledge, no other Default or Event of Default has occurred and is continuing. [AAA] is not in material default under any Transaction Document to which it is a party.
7.9 Financial Statements.
Each of the financial statements of [AAA] delivered to the Secured Parties is true, complete and correct in all material respects as of the date of such statement, has been prepared in accordance with Applicable Accounting Principles and fairly presents the financial condition, results of operations and cash flows of [AAA] as of the date thereof. Except as set forth in such financial statements or disclosed to each of the Senior Lenders in writing, there are no liabilities or obligations of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due, but not including any liabilities or obligations that would not be required to be disclosed in a financial statement, including the footnotes thereto, pursuant to Applicable Accounting Principles for the period to which such financial statements relate) that could reasonably be expected to be material to [AAA] or could reasonably be expected to have a Material Adverse Effect. Since the date of [AAA]’s most recent financial statement delivered to the Secured Parties, no event, condition, occurrence or circumstance has existed or exists which constitutes a Material Adverse Effect. [AAA] does not know of any reasonable basis for the assertion against [AAA] or any of its Property of any liability or obligation of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) that is not fully reflected in such financial statements which, either individually or in the aggregate, could reasonably be expected to be material to [AAA].
7.10 Compliance with Laws.
[AAA] is in compliance in all material respects with all Applicable Laws relating to its participation in the Project or the performance of its obligations under the Transaction Documents to which it is a party.
7.11 Percentage Ownership; No Other Outstanding Rights.
7.11.1 [BBB]. Except as otherwise permitted under Section 8.10, [AAA] is the record and beneficial owner of [•] percent ([•]%) of the issued and outstanding shares of capital stock of [BBB]. There are no outstanding options, warrants, conversion or exchange privileges, preemptive rights, rights of first refusal or other rights with respect to, or to purchase or obtain, any of the Capital Stock of [BBB] other than those solely owned by [AAA]. As of the Initial Disbursement Date and on each date thereafter that this representation is made or deemed made, [AAA] owns indirectly at least [•]% of each of (a) the issued and outstanding voting Capital Stock of the Borrower and (b) the issued and outstanding Series A Preferred Shares.
7.11.2 [CCC]. Except as otherwise permitted under Section 8.10, [AAA] indirectly owns [•] percent ([•]%) of the issued and outstanding shares of Capital Stock of [CCC]. There are no outstanding options, warrants, conversion or exchange privileges, preemptive rights, rights of first refusal or other rights with respect to, or to purchase or obtain, any of the Capital Stock of [CCC] other than those solely owned (directly or indirectly) by [AAA].
7.12 Legal Form.
Each of the Transaction Documents to which [AAA] is a party is in proper legal form under Applicable Laws of the [Name of the Country] and (if different) of the jurisdiction by which it is governed and is capable of enforcement in [Name of the Country] and such other jurisdiction (if applicable).
7.13 Taxes; Fees and Duties.
7.13.1 Fees. All required stamp duties, registration fees, filing costs and other charges, due and payable as of the date this representation and warranty is given, in connection with the execution, delivery, filing, recording, perfection, priority and admissibility in evidence of any Transaction Document to which [AAA] is a party (and the Liens purported to be granted thereby) have been paid in full or an appropriate exemption therefrom has been obtained.
7.13.2 Taxes. Other than amounts that have been paid in full or will be paid in full on the Initial Disbursement Date or as otherwise disclosed in writing to and waived by the Administrative Agent, no Taxes are required to be paid in connection with the execution, delivery, filing, recording, perfection, priority and/or validity, enforceability, perfection, priority or admissibility in evidence of the Transaction Documents to which [AAA] is a party.
7.14 Immunity.
[AAA] and its Property have no, and [AAA] is not entitled to claim or assert any, right of immunity on the grounds of sovereignty or otherwise from jurisdiction of any court, suit, set‑off, legal proceedings generally, attachment before judgment, attachment in aid of execution or other attachment or execution of judgment under the Applicable Laws of, or in any action to enforce this Agreement or any other Transaction Document to which it is a party taken in, [Name of the Country], [Name of the Country], [Name of the Country] or any other jurisdiction in which [AAA]’s Property is located. The execution, delivery and performance by [AAA] of each Transaction Document to which it is a party are private and commercial acts performed for private and commercial purposes.
7.15 Utility Regulation.
[AAA] is not subject to regulation by any Government Authority of [Name of the Country] as (a) a “public utility,” a “public‑utility company,” an “electric utility,” an “electric utility company,” or a “holding company,” (as such quoted terms are defined in PUHCA or the Federal Power Act) or as a Subsidiary or Affiliate of any of the foregoing or (b) as a “subsidiary company” or an “affiliate” of a “holding company” or an “affiliate” of a “subsidiary company” of a “holding company” under (and as such quoted terms are defined in) PUHCA. None of the Secured Parties, by reason of its exercise of remedies under the Security Documents to which [AAA] or any of its Affiliates or Subsidiaries are a party, will be subject to regulation by any Government Authority of [Name of the Country] as (i) a “public utility,” a “public‑utility company” an “electric utility,” an “electric utility company,” or a “holding company” (as such terms are defined in PUHCA or the Federal Power Act, as the case may be) or a Subsidiary or Affiliate of any of the foregoing or (ii) a “subsidiary company” or “affiliate” of a “holding company” under (and as such quoted terms are defined in) PUHCA.
7.16 No Bankruptcy.
No steps have been taken or legal proceedings started by or against [AAA], and to the best of its knowledge no such action has been threatened against it, for its winding‑up, dissolution or reorganization or for the appointment of a receiver, trustee or similar officer with respect to it or any of its Property.
7.17 Foreign Corrupt Practices Act; Unfair Competition Prevention Law.
Neither [AAA] nor any of its officers, directors, employees, agents or Affiliates, acting on its behalf, has taken any action in connection with [•] Law of [Name of the Country], the Act on [•] of [Name of the Country], as amended, or, if applicable, the Foreign Corrupt Practices Act of [Name of the Country], [•] Law of [Name of the Country], as amended, or any similar law of any other jurisdiction.
7.18 Investment Company Act.
[AAA] has not taken any action that could result in the Borrower falling within the definition of, and [AAA] is not, an “investment company” or a company “controlled” by an “investment company” within the meaning of [Name of the Country] Investment Company Act of 1940, as amended.
8. Covenants
In addition to the covenants of [AAA] set forth in the other Financing Documents, which are incorporated herein by this reference, and elsewhere in this Agreement, [AAA] covenants and agrees with the Trustee and the Administrative Agent for the benefit of the Secured Parties that until the Termination Date:
8.1 Reporting Obligations.
[AAA] shall deliver to the Administrative Agent:
8.1.1 to the extent not otherwise delivered pursuant to Section 7.1.2 of the Common Agreement and, if requested by the Administrative Agent or any Senior Lender or Facility Agent to be delivered by [AAA], those financial statements, reports and certifications required to be delivered by or in respect of [AAA] pursuant to Section 7.1.2 of the Common Agreement;
8.1.2 promptly after [AAA] knows or has reason to believe that any Default or Event of Default has occurred, a notice of such event describing the same in reasonable detail;
8.1.3 promptly after [AAA] knows that any event, circumstance or condition which could result in a Material Adverse Effect has occurred, notice of such event, circumstance or condition;
8.1.4 promptly upon the occurrence of any Ratings Downgrade Event or any event that, with the giving of the notice by the Administrative Agent referred to in clause (b) of the definition of “Ratings Downgrade Event,” would result in a Ratings Downgrade Event, notice of such event; and
8.1.5 from time to time, with reasonable promptness, such other information regarding the financial condition, operations or business of [AAA] as the Administrative Agent may reasonably request (but only to the extent reasonably necessary to evaluate [AAA]’s ability to perform its obligations under the Transaction Documents to which it is a party).
8.2 Maintenance of Existence.
[AAA] shall at all times preserve and maintain (a) its legal existence under Applicable Laws of the jurisdiction of its incorporation and (b) in full force and effect its qualifications to do business in each jurisdiction in which the character of the Property owned or leased by it or in which the transaction of its business as conducted or proposed to be conducted makes such qualification necessary.
8.3 Government Approvals.
[AAA] shall obtain and at all times maintain, or cause to be obtained and maintained, in full force and effect and, where applicable, renew or cause to be renewed all Project Approvals and other Government Approvals (if any) required to be maintained by it at the relevant time in connection with, and which are material to, the Project or necessary for [AAA] to maintain its legal existence. Without limiting the foregoing, [AAA] shall obtain (a) all Project Approvals set forth in Part 5 of Schedule 6.8.1 to the Common Agreement prior to the Initial Disbursement Date and (b) all Project Approvals set forth in Part 5 of Schedule 6.8.5 to the Common Agreement when required to be obtained under Applicable Law.
8.4 Compliance with Laws.
[AAA] shall comply in all material respects with all Applicable Laws (except to the extent failure to comply could not have a Material Adverse Effect).
8.5 Taxes.
[AAA] shall pay or arrange for the payment prior to delinquency of all Taxes and all other charges (a) imposed on it or its income, profits or any of its Property or (b) to the extent not paid by the Borrower pursuant to Section
8.6 Bar to Bankruptcy Action.
[AAA] shall not (a) commence or join with any other Person (other than the Secured Parties) in commencing any Insolvency Proceeding against the Borrower (whether or not permitted by the Shareholders’ Agreement), [BBB] or [CCC] or (b) to the extent permitted by Applicable Law, fail to timely oppose, or to cause the Borrower, [BBB] or [CCC] to timely oppose, any Insolvency Proceeding instituted against the Borrower, [BBB] or [CCC], as the case may be.
8.7 Senior Loans.
Except as required by Section 6.1.7, [AAA] shall not, and shall not permit any of its Affiliates to, hold, directly or indirectly, any Senior Loan or promissory note in respect thereof, whether by purchase, participation or otherwise.
8.8 Cooperation.
[AAA] shall cooperate in all reasonable respects with the Secured Parties in the administration of the Financing Documents.
8.9 Dissolution; Insolvency Proceedings.
[AAA] shall not, and shall not agree to, directly or indirectly, (a) wind up, liquidate, or dissolve itself, or file any petition or pass a resolution seeking the same or (b) commence a voluntary Insolvency Proceeding.
8.10 Limitation on Transfers.
8.10.1 Equity Interest in [BBB]. For as long as [BBB] holds any direct or indirect ownership interest in the Borrower, (a) [AAA] shall own, directly or indirectly, [•] percent ([•]%) of the issued and outstanding shares of Capital Stock of [BBB] and, (b) [AAA] shall not, without the prior written consent of the Senior Lenders, Transfer or permit the Transfer of its direct or indirect equity interest in or right to acquire any equity interest in [BBB], in a manner that would result in [AAA] owning (directly or indirectly) less than [•]% of the issued and outstanding shares of Capital Stock of [BBB]. Any Transfer otherwise permitted under this Section 8.10.1 must satisfy the Transfer Conditions.
8.10.2 Equity Interest in [CCC]. For as long as [CCC] holds any rights with respect to any Subordinated Shareholder Loans or [AAA] Replacement Loans or any Subordinated Notes, (a) [AAA] shall own, directly or indirectly, [•] percent ([•]%) of the issued and outstanding shares of Capital Stock of [CCC] and, (b) [AAA] shall not, without the prior written consent of the Senior Lenders, Transfer or permit the Transfer of its direct or indirect equity interest in or right to acquire any equity interest in [CCC], in a manner that would result in [AAA] owning (directly or indirectly) less than [•]% of the issued and outstanding shares of Capital Stock of [CCC]. Any Transfer otherwise permitted under this Section 8.10.2 must satisfy the Transfer Conditions.
8.10.3 [AAA] Subordinated Loans. [AAA] shall not Transfer its rights with respect to Subordinated Shareholder Loans or [AAA] Replacement Loans without the prior written consent of the Administrative Agent, except for a Transfer of such rights where required in connection with a Transfer of any equity interest permitted under Section 8.10.1 or 8.10.2, and provided, that [AAA] may transfer its rights with respect to Subordinated Shareholder Loans to [BBB] or to [CCC] by written notice to the Borrower and [BBB] or [CCC], as applicable, (with a copy to the Trustee and the Administrative Agent). Any Transfer otherwise permitted under this Section 8.10.3 must satisfy the Transfer Conditions.
8.10.4 [BBB]/[CCC] Subordinated Loans. [BBB] and/or [CCC] shall not Transfer its rights with respect to Subordinated Shareholder Loans or [AAA] Replacement Loans except to the extent such Transfer is a Permitted Transfer under Section 9.1.17(i) of the Common Agreement and such Transfer satisfies the Transfer Conditions.
8.11 Proceedings.
[AAA] shall promptly (but in any event within [•] Business Days) after [AAA] obtains knowledge or becomes aware thereof deliver notice to the Administrative Agent of any pending or threatened action, suit or proceeding, at law or in equity, involving [AAA] or legislation, by or before any Government Authority, arbitral tribunal or other body (a) affecting the Project, or (b) with respect to any Transaction Document to which it is a party, which in either case could reasonably be expected to result in a Material Adverse Effect. In the event of any such action, suit, proceeding or legislation, [AAA] shall (i) diligently pursue its rights to compensation in respect thereof, (ii) not settle or compromise any claim relating thereto without the prior written approval of the Administrative Agent and (iii) pay all proceeds relating thereto or resulting therefrom in accordance with the Financing Documents.
8.12 Further Assurances.
[AAA] shall, at its own expense to the extent those expenses are not paid by the Borrower pursuant to Section
8.13 No Adverse Control.
[AAA] will not, directly or indirectly, exercise control over [BBB], [CCC] or the Borrower in any manner that could reasonably be expected to result in a default under or breach of any of the terms of the Financing Documents, any Government Approval applicable to [BBB], [CCC] or the Borrower or any other agreement or instrument to which [BBB], [CCC] or the Borrower is a party if such default or breach could reasonably be expected to result in a default under or breach of any of the terms of the Financing Documents.
8.14 Payments Under Pledge Agreement.
[AAA] shall (a) cause [BBB] to perform its obligations under Sections 14.1 and 14.6 of the [BBB] Pledge Agreement and (b) cause [CCC] to perform its obligations under Sections 14.1 and 14.6 of the [CCC] Pledge Agreement.
8.15 Utility Regulation.
[AAA] shall not take (or permit any Affiliate to take) any action that could reasonably be expected to result in (a) [AAA] being subject to regulation by any Government Authority of [Name of the Country] as a “public utility,” a “public-utility company,” an “electric utility,” an “electric utility company” or a “holding company,” (as such terms are defined in PUHCA or the Federal Power Act, as the case may be) or a Subsidiary or Affiliate of any of the foregoing, (b) [AAA] being subject to regulation as a “subsidiary company” or an “affiliate” of a “holding company” under (and as such quoted terms are defined in) PUHCA, or (c) any of the Secured Parties, by reason of its exercise of remedies under the Security Documents to which [AAA] or any of its Affiliates or Subsidiaries are a party being subject to regulation by any Government Authority of [Name of the Country] as (i) a “public utility,” a “public-utility company,” an “electric utility,” an “electric utility company,” or a “holding company,” (as such terms are defined in PUHCA or the Federal Power Act, as the case may be) or a Subsidiary or Affiliate of any of the foregoing or (ii) a “subsidiary company” or “affiliate” of a “holding company” under (and as such quoted terms are defined in) PUHCA.
8.16 Investment Company Act.
[AAA] shall not take (or permit any Affiliate to take) any action that could result in it falling within the definition of an “investment company” or a company “controlled” by an “investment company” within the meaning of [Name of the Country] Investment Company Act of 1940, as amended.
8.17 Reimbursement Sharing Agreement.
[AAA] shall not, without the prior written consent of the Administrative Agent (a) amend, supplement or otherwise modify, or agree to or permit any amendment, supplement or modification to the Reimbursement Sharing Agreement or (b) assign or transfer any of its rights or obligations under the Reimbursement Sharing Agreement.
9. NO OFFSET; Waivers; Other [AAA] Obligations
9.1 No Offset.
All Equity Contributions to be made by [AAA] or [BBB] hereunder, and the payment of all other amounts by [AAA], [BBB] or [CCC] hereunder, shall be made in all events at the times and in the amounts set forth in this Agreement, and neither [AAA], [BBB] nor [CCC] shall have any right to withhold or offset against any payment due hereunder for any reason including any dispute between or among [AAA], [BBB], [CCC] or the other Sponsors, the other Shareholders and the Borrower or among any combination of parties hereto or to any other Financing Documents over any matter whatsoever.
9.2 Taxes.
If either [AAA], [BBB] or [CCC] is required by Applicable Law to withhold or deduct any Taxes from or in respect of any sum payable on, under or in respect of this Agreement, (a) such sum payable shall be increased to the extent necessary so that after making all required withholdings and deductions (including withholdings and deductions applicable to additional sums payable under this Section 9.2) the Person or account entitled to such payment receives on the due date therefor an amount equal to the sum it would have received had no such withholdings and deductions been made, (b) [AAA], [BBB] or [CCC] shall make such withholdings and deduction, and (c) [AAA], [BBB] or [CCC] shall pay the full amount withheld or deducted to the relevant taxation authority or other Government Authority in accordance with Applicable Law, on or prior to the due date thereof.
9.3 Continuing Obligation and Waivers.
Each [AAA] Party and [CCC] agrees that its obligations under this Agreement are primary, original, irrevocable, absolute, independent, continuing and unconditional and neither such obligations nor the rights of the Trustee, the Administrative Agent or any other Secured Party shall be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety, or any of its property, other than the occurrence of the Termination Date. In furtherance of the foregoing, each [AAA] Party and [CCC] agrees as follows:
9.3.1 Enforceability of Transaction Documents. This Agreement is not conditional or contingent upon the value, genuineness, validity, regularity or enforceability of any Transaction Document (including the other Funding and Support Agreements) or any provision thereof or any agreement or instrument referred to therein or the pursuit by the Trustee, the Administrative Agent or any other Secured Party of any remedies that they now have or may hereafter have under the Transaction Documents, at law, in equity or otherwise. Each [AAA] Party’s and [CCC]’s obligations under this Agreement shall not be reduced by virtue of any non-payment, non-performance, partial payment or partial performance by the Borrower or any other Person of any amount or other obligation due under the Transaction Documents.
9.3.2 Independent Obligations. The obligations of each [AAA] Party and [CCC] hereunder are independent of the Obligations of the Borrower, the obligations of any guarantor of the Obligations and any other Person (including the other Sponsors and Shareholders), and a separate action or actions may be brought and prosecuted against [AAA], [BBB] and/or [CCC] whether or not any action is brought against the Borrower, any such guarantor or such other Person and whether or not the Borrower, other guarantor or other Person is joined in any such action or actions.
9.3.3 Certain Waivers. Each [AAA] Party and [CCC] irrevocably and unconditionally waives any right to require the Trustee, the Administrative Agent or any other Secured Party to (a) proceed against any Person, including the Borrower and the other Sponsors and Shareholders, (b) proceed against or exhaust any collateral held from the Borrower, the other Sponsors or Shareholders or any other Person, (c) pursue any other remedy in the power of the Trustee, the Administrative Agent or any other Secured Party or (d) except as expressly provided herein, make or give any notices which may be required by Applicable Law or otherwise to preserve any rights against either [AAA] Party or [CCC] hereunder, including any presentments, demands for performance, notices of nonperformance, protests, notices of protests or notices of dishonor in connection with any obligation or evidence of indebtedness that constitutes or evidences, in whole or in part, the Obligations and each [AAA] Party’s and [CCC]’s funding obligations hereunder.
9.3.4 Additional Waivers. Each [AAA] Party and [CCC] irrevocably and unconditionally waives any defense arising by reason of, and agrees that the rights of the Trustee, the Administrative Agent and the other Secured Parties and the obligations of each [AAA] Party and [CCC] under this Agreement shall be absolute and unconditional irrespective of:
(a) any disability or other defense of the Borrower or any other Person;
(b) the unenforceability or cessation from any cause whatsoever, other than the indefeasible payment, performance and discharge in full, of the Obligations;
(c) any breach or non‑performance by any Major Project Party or other Person of any of the Project Documents;
(d) any modification of the Obligations, with or without notice to either [AAA] Party or [CCC], in any form whatsoever, including the renewal, extension, acceleration or other changes in time, place or manner for payment and performance of the Obligations, or other change in the terms of the Obligations or any part thereof, including any increase or decrease of the rate of interest thereon;
(e) any right to deferral or modification of the funding obligations of [AAA], [BBB] and/or [CCC] hereunder or otherwise with respect to the Obligations by reason of any Insolvency Proceedings affecting the Borrower, either [AAA] Party or [CCC], or any other Person;
(f) the rejection of this Agreement or any other Transaction Document in any Insolvency Proceeding (nothing herein being a concession that anything in this Agreement is properly classifiable as an executory obligation);
(g) to the fullest extent permitted by Applicable Law, any defense or benefit that may be derived from or afforded by Applicable Law that limits the liability of or exonerates guarantors or sureties;
(h) any election of remedies by the Borrower that destroys either [AAA] Party’s or [CCC]’s subrogation rights or either such Person’s right to proceed against the Borrower for reimbursement, including any loss either such Person may suffer by reason of any rights, power or remedies of the Borrower in connection with any anti‑deficiency laws or any other laws limiting, qualifying or discharging the Obligations;
(i) any claim to or right in respect of abatement, reduction, limitation, impairment, termination, counterclaim or recoupment;
(j) the occurrence or continuance in effect of any Event of Default;
(k) any amendment of this Agreement (other than amendments made in accordance with Section 10.6) or any of the other Transaction Documents, or waiver of, or consent to departure from, any provision of this Agreement or any of the other Transaction Documents;
(l) any Insolvency Proceeding by or against the Borrower, either [AAA] Party or [CCC], or any other party to any of the Transaction Documents;
(m) any of the acts mentioned in any of the provisions of this Agreement, any other Transaction Document or any other agreement or instrument referred to herein or therein being done or omitted;
(n) any right under any Financing Document or any other agreement or instrument referred to herein or therein being waived or any other guarantee of any obligation hereunder or any security therefor being released or exchanged in whole or in part or otherwise dealt with;
(o) any breach, failure to perform or other action or inaction by [III], the GOP, or any other Government Authority;
(p) the failure by any Senior Lender to make any Disbursement;
(q) the failure by any Person to pay any Taxes that may have been payable in respect of the transactions contemplated by the Financing Documents;
(r) the failure of any Person to register this Agreement or any other Transaction Document with any Government Authority;
(s) the failure of any Person to obtain any Government Approval required in connection with this Agreement or any other Transaction Document;
(t) any Change of Law which may affect the Borrower’s or either [AAA] Party’s obligations under the Financing Documents or the rights of the Trustee or any other Secured Party;
(u) any change in the scope of the Project or in the economic viability of the Project;
(v) any Lien granted to, or in favor of, the Trustee or any other Secured Party as security for any Obligation failing to be perfected or being released; or
(w) any benefit of the statute of limitations affecting either [AAA] Party’s or [CCC]’s liability hereunder or enforceability hereof, and any other circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower in respect of the Obligations or either [AAA] Party or [CCC] in respect of this Agreement.
9.3.5 Right to Amend Obligations. Each [AAA] Party and [CCC] irrevocably authorizes the Trustee, the Administrative Agent and each other Secured Party, without notice or demand, and without affecting its obligations or the rights of the Trustee, the Administrative Agent or any other Secured Party under this Agreement, from time to time to:
(a) alter, compromise, renew, extend, accelerate or otherwise change the time, place or manner for payment and performance of, or otherwise change the terms of the Obligations or any part thereof, including any increase or decrease of the rate of interest thereon;
(b) take and hold security for the payment of the Obligations or any part thereof and exchange, enforce, waive and release the Collateral, or any part thereof, or other security;
(c) apply the Collateral or such other security and direct the order or manner of sale thereof as the Trustee, the Administrative Agent and the other Secured Parties in their discretion may determine; and
(d) release or substitute any of the endorsers or guarantors of the Obligations, or any part thereof, or any other parties thereof.
For the avoidance of doubt the provisions of this Section 9.3.5 do not limit or affect the right of [BBB] to exercise its voting and other rights as a Shareholder to consent to any actions taken by the Borrower with respect to any of the matters referred to in this Section 9.3.5.
9.3.6 Subrogation. Until the Termination Date shall have occurred, each [AAA] Party and [CCC] shall withhold exercise of: (a) any right of subrogation or contribution against the Borrower or any other Person arising from the performance of the obligations of the [AAA] Parties under this Agreement (other than any right of contribution or indemnification from the other Sponsors); (b) any right to enforce any remedy that the Trustee, the Administrative Agent or any other Secured Party now has or may hereafter have against the Borrower or any other Person; and (c) any benefit of, and any right to participate in, any security now or hereafter held by the Trustee, the Administrative Agent or any other Secured Party. Each [AAA] Party and [CCC] further agrees that to the extent the limitation of its rights of subrogation and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation such Person may have against the Borrower or against any collateral or security, and any rights of contribution such Person may have against any guarantor or other Person, shall be junior and subordinate to any rights the Trustee and/or the Secured Parties may have against the Borrower, to all right, title and interest the Trustee or the other Secured Parties may have in any such collateral or security, and to any right the Trustee or the other Secured Parties may have against such guarantor or other Person. The Trustee and the other Secured Parties may use, sell, lease or otherwise dispose of any item or collateral or security as they see fit without regard to any subrogation or contribution rights either [AAA] Party or [CCC] may have, and upon any disposition or sale, any rights of subrogation or contribution either [AAA] Party or [CCC] may have shall terminate. If any amount shall be paid to [AAA], [BBB] or [CCC] on account of such subrogation rights prior to the Termination Date, such amount shall be held in trust for the benefit of the Trustee and the other Secured Parties and shall forthwith be paid to the Trustee to be credited and applied upon the Obligations.
10. Miscellaneous
10.1 Obligations of Administrative Agent.
Each of the [AAA] Parties and [CCC] acknowledges and agrees that the Administrative Agent shall, in exercising its rights and performing its obligations hereunder, act in accordance with the terms and provisions of the Intercreditor Agreement.
10.2 Payment of Expenses, Etc.
Each [AAA] Party shall, whether or not the transactions contemplated hereby are consummated, pay within [•] Business Days after written demand, (to the extent those costs and expenses have not been paid by the Borrower pursuant to Section
(a) all out‑of‑pocket costs and expenses of each of the Secured Parties (including all fees, expenses and disbursements of each Secured Party’s legal counsel, consultants and advisors) made, paid, suffered or incurred in connection with any amendment or modification to, the creation, protection or preservation of any right or claim under, the administration of, or any consent or waiver in connection with, this Agreement or any other document or instrument related hereto (including all fees and Taxes in connection with the recording, registration and filing of instruments and documents in public offices); and
(b) all out‑of‑pocket costs and expenses of each of the Secured Parties (including all commissions, charges, costs and expenses for the conversion of currencies and all other costs, charges and expenses (including all fees, expenses and disbursement of each Secured Party’s legal counsel, consultants and advisors)) made, paid, suffered or incurred in connection with the enforcement (including with respect to a work out) of, and the exercise of any of the rights, remedies or powers granted under, this Agreement (including all fees, expenses and disbursements of each Secured Party’s legal counsel),
provided, that the relevant Secured Party shall provide to the Borrower documentation evidencing such costs and expenses to the extent that the provision of such documentation would be consistent with such Secured Party’s internal policies for reimbursing costs and expenses of a similar nature.
10.3 Notices.
Except as otherwise expressly provided herein or in any Financing Document, all notices and other communications required or otherwise contemplated to be made hereunder shall be in writing and in English, and shall be provided by one or more of the following means and shall be deemed to have been duly given (a) if delivered personally, when received, (b) if transmitted by facsimile, at the time of transmission with receipt of transmittal confirmation, (c) if sent by courier for inland delivery, on the first Business Day following the date of deposit with such courier service or (d) if sent by international courier for overseas delivery, on the [•]th Business Day following the date of deposit with such courier service, or such earlier date as may be confirmed to the sender by such courier service; provided, that any notice or communication to the Trustee or the Administrative Agent shall not be effective until received by such Trustee or Agent. All such notices and other communications to be sent to a party hereto, shall be sent to the “Address for Notices” specified below such party’s name on Annex I to the Common Agreement, or to such other address as may be designated by a party by giving written notice in accordance with this Section 10.3.
10.4 No Waiver; Remedies Cumulative.
10.4.1 No Waiver. No failure or delay on the part of the Trustee, the Administrative Agent or any other Secured Party in exercising any right, power or privilege hereunder or under any other Financing Document and no course of dealing between the [AAA] Parties or any of their respective Affiliates, on the one hand, and the Trustee, the Administrative Agent or any other Secured Party, on the other hand, shall impair any such right, power or privilege or operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder or under any other Financing Document shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. Any waiver hereunder shall be in writing signed by the Administrative Agent and shall be effective only in the specific instance and for the specific purpose for which it is given. No notice to or demand on either [AAA] Party or [CCC] in any case shall entitle it to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Trustee, the Administrative Agent or any other Secured Party to any other or further action in any circumstances without notice or demand.
10.4.2 Remedies Cumulative. The rights, powers and remedies herein or in any other Financing Document expressly provided are cumulative and not exclusive of any rights, powers or remedies that any party hereto or thereto would otherwise have.
10.5 Severability.
If any provision of this Agreement is declared invalid or unenforceable by any lawful tribunal, then it shall be construed, to the extent feasible, to conform to legal requirements of that tribunal. If no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement as though never included herein and the remaining provisions of this Agreement shall remain in full force and effect unless such invalidity or unenforceability causes substantial deviation from the underlying intent of the parties expressed herein, in which case the parties hereto shall replace the invalid or unenforceable provision with a valid or enforceable provision which corresponds as far as possible to the spirit and purpose of the invalid or unenforceable provision.
10.6 No Amendments.
This Agreement shall only be modified, amended or supplemented with the express written consent of each [AAA] Party, [CCC] and the Administrative Agent.
10.7 Judgment Currency.
10.7.1 No Discharge. The [AAA] Parties’ and [CCC]’s obligations under this Agreement 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 of the full amount of the Obligation Currency expressed to be payable under this Agreement or the other Financing Documents. If, for the purpose of obtaining or enforcing judgment against either [AAA] Party or [CCC] 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 Applicable Currency Exchange Rate in the case of [Currency], and in the case of other currencies, the rate of exchange (as quoted by the Administrative Agent or, if the Administrative Agent fails to quote a rate of exchange on such currency, by a known dealer in such currency designated by the Administrative Agent) determined, in each case, as of the date on which the judgment is given (such Business Day being hereinafter referred to as the “Judgment Currency Conversion Date”).
10.7.2 Change in Exchange Rate. 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, each [AAA] Party and [CCC] 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 [AAA], [BBB] and/or [CCC] paying an amount in excess of that necessary to discharge or satisfy any judgment, the Secured Parties shall transfer or cause to be transferred to [AAA], [BBB] or [CCC], as the case may be, the amount of such excess (net of any Taxes and reasonable and customary costs incurred in connection therewith).
10.7.3 Determination of Currency Equivalents. For purposes of determining the Applicable Currency Exchange Rate or other rate of exchange under this Section 10.7 such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
10.8 English Language.
This Agreement is made in the English language. Any translation of this Agreement shall have no legal validity.
10.9 Entire Agreement.
This Agreement and the documents referred to herein embody the entire agreement and understanding of the [AAA] Parties, [CCC] and the Secured Parties, and supersede all prior agreements and understandings of the [AAA] Parties, [CCC] and the Secured Parties, relating to the subject matter herein contained.
10.10 Waiver of Sovereign Immunity.
Each [AAA] Party and [CCC] acknowledges and agrees that the activities contemplated by this Agreement are commercial in nature rather than governmental or public, and therefore acknowledges and agrees that it is not entitled to any right of immunity on the grounds of sovereignty or otherwise with respect to such activities or in any legal action or proceeding arising out of or relating to this Agreement. To the extent that either [AAA] Party or [CCC] or any of their respective Property has or hereafter may acquire any right to immunity from suit, set-off, legal proceedings generally, attachment before judgment, attachment in aid of execution or other attachment or execution of judgment on the grounds of sovereignty or otherwise, such [AAA] Party or [CCC] hereby expressly and irrevocably waives such rights to immunity for itself and its Property in respect of its obligations arising under or relating to this Agreement or any related documentation, and agrees not to assert any such right or claim in any legal action or proceeding arising out of or relating to this Agreement. Each [AAA] Party or [CCC] agrees that the waivers set forth above are made to the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of [Name of the Country] and are intended to be irrevocable and not subject to withdrawal for purposes of such Act.
10.11 Governing Law; Submission To Jurisdiction; Venue; Waiver Of Jury Trial.
10.11.1 GOVERNING LAW. THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF [Name of the Country].
10.11.2 Submission To Jurisdiction. Any legal action or proceeding against either [AAA] Party or [CCC] with respect to this Agreement or any other Financing Document may be brought in the courts of [Name of the Country]. By execution and delivery of this Agreement, each [AAA] Party and [CCC] irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. Each [AAA] Party and [CCC] agrees that a judgment, after exhaustion of all available appeals, in any such action or proceeding shall be conclusive and binding upon it, and may be enforced in any other jurisdiction, including by a suit upon such judgment, a certified copy of which shall be conclusive evidence of the judgment.
10.11.3 Appointment of Process Agent. Each [AAA] Party and [CCC] irrevocably designates, appoints and empowers [name of the Process Agent], with offices on the date hereof at [address of the Process Agent], as its designee, appointee and agent with respect to any action or proceeding in [Name of the Country], to receive, accept and acknowledge, for and on its behalf, and in respect of its property, service of any and all legal process, summons, notices and documents which may be served in any such action or proceeding. Each [AAA] Party and [CCC] agrees that the failure of such agent to give any advice of any such service of process to such [AAA] Party shall not impair or affect the validity of such service or of any judgment in any action commenced on the basis of such service. Each [AAA] Party and [CCC] agrees that if for any reason its designee, appointee and agent shall cease to be available to act as such, such [AAA] Party or [CCC] shall designate a new designee, appointee and agent in [Name of the City] on the terms and for the purposes of this provision satisfactory to the Administrative Agent.
10.11.4 Service of Process. Each [AAA] Party and [CCC] further irrevocably consents to the service of process out of any of the courts referred to in Section 10.11.2 in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at its address set forth in Annex I to the Common Agreement, such service to become effective [•] days after such mailing. Nothing herein shall affect the right of any Secured Party to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against either [AAA] Party and [CCC] in [Name of the Country] or in any other court or tribunal having jurisdiction.
10.11.5 Waiver Of Objection To Venue Or Forum. Each [AAA] Party and [CCC] irrevocably waives any objection that it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Agreement or any other Financing Document brought in the courts referred to in Section 10.11.2. Each [AAA] Party and [CCC] further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
10.11.6 WAIVER OF JURY TRIAL. EACH [AAA] PARTY AND [CCC] HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
10.12 No Third Party Beneficiaries.
The agreements contained herein are made solely for the benefit of the Secured Parties, and successors and assigns of the Secured Parties, as specified in the Financing Documents, and shall not be construed as having been intended to benefit any third party.
10.13 Assignments.
This Agreement shall be binding upon, inure to the benefit of and be enforceable by the respective successors and assigns of the [AAA] Parties, [CCC] and the Secured Parties; provided, however, that (a) [AAA] and [CCC] may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each of the Senior Lenders and (b) [BBB] may only assign or transfer its rights and obligations under this Agreement in connection with the transfer of all of its ownership interest in the Borrower and all Subordinated Shareholder Loans and [AAA] Replacement Loans to a directly or indirectly wholly‑owned subsidiary of [AAA] pursuant to an assignment and assumption agreement in form and substance satisfactory to the Administrative Agent. Any Secured Party may transfer, assign or grant its rights hereunder in connection with an assignment or transfer of all or any part of its interest in Obligations owed to it in accordance with the provisions of the Common Agreement. Any attempted assignment or transfer in contravention of this Section 10.13 shall be null and void.
10.14 Special Exculpation.
None of the Secured Parties shall be liable to either [AAA] Party or [CCC] or any other Person for any indirect, special, consequential or punitive damages (including any loss of revenue or loss of profit) howsoever arising (whether in negligence or otherwise) out of or in connection with the performance or non-performance of this Agreement or any other Financing Document.
10.15 Reinstatement.
10.16 Termination.
Subject to Section 10.15, this Agreement is a continuing and irrevocable undertaking, and shall terminate on the Termination Date.
10.17 Counterparts; Effectiveness.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any party hereto may execute this
Agreement by signing any such counterpart. This Agreement shall become effective at such time as the Administrative Agent shall have received counterparts hereof signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
[AAA]
By_________________________________
Name:
Title:
[BBB].
By_________________________________
Name:
Title:
[CCC]
By_________________________________
Name:
Title:
[DDD], not in its individual capacity but solely as Trustee
By_________________________________
Name:
Title:
[EEE], as Administrative Agent
By_________________________________
Name:
Title:
2_7 Funding and Support Agreement.doc
'스크랩 > 영문 계약서' 카테고리의 다른 글
| TRUST AGREEMENT, 영문계약서, 신탁계약서 (0) | 2017.12.14 |
|---|---|
| ACCOUNTS CONTROL AGREEMENT, 영문계약서, 계좌 조정 계약서 (0) | 2017.12.14 |
| SHAREHOLDER'S AGREEMENT, 주주계약서, 영문계약서 (0) | 2017.12.14 |
| AGENCY AGREEMENT, 영문계약서, 대리점 계약서 (0) | 2017.12.13 |
| INTERCREDITOR AGREEMENT, 영문계약서, 대주간 약정서 (0) | 2017.12.13 |