ASSIGNMENT AND SECURITY AGREEMENT, 위임 및 보안 계약서, 영문계약서

This ASSIGNMENT AND SECURITY AGREEMENT (this “Agreement”), dated as of [•], 20 [•], is by and between [AAA], a corporation organized and existing under the laws of [Name of the Country](the “Borrower”), and [BBB], a national banking association, not in its individual capacity but only as the trustee for the Secured Parties under the Common Agreement referred to below (the “Trustee”).

RECITALS

A. The Borrower, the Senior Lenders 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 the Borrower, [CCC], [DDD], K‑EXIM, the [CCC] Facility Co‑Financing Lenders, the [DDD] 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 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 [Address].

C. 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, the Borrower has agreed to assign and grant a security interest in certain property to the Trustee, for the ratable benefit of the Secured Parties, to secure the Obligations as provided herein.

ACCORDINGLY, the parties hereto hereby agree as follows:

AGREEMENT

1. Definitions; 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:

“Accounts” means each of the Project Accounts listed on Schedule 1 and all substitutions and replacements thereof.

“Assigned Revenues” means (a) all proceeds of and monies payable to the Borrower, including as damages for breach or default, under (i) each of the Contracts, and (ii) each insurance policy maintained by the Borrower, and (b) (to the extent not covered by the foregoing) all Casualty Proceeds payable to or for the account of the Borrower.

“Contracts” means all of the contracts and agreements set forth on Schedule 2 (including the benefit of all rights, securities or guarantees held by the Borrower in relation thereto) and all other contracts and agreements between the Borrower and one or more Persons (other than the Financing Documents that are not Hedging Facilities, the Deed and the Proponents’ Agreement).

“Copyrights” has the meaning set forth in Section 2.2.4.

“Intellectual Property” has the meaning set forth in Section 2.2.4.

“Jetty Contract Performance Bond” means the Performance Bond described in Article 1 of the Jetty Construction Contract.

“Patents” has the meaning set forth in Section 2.2.4.

“S/C Contracts Performance Securities” means, collectively, the Performance Security described in Clause 1 of the Supply Contract and the Performance Security described in Clause 1 of the Construction Contract.

“Secured Collateral” has the meaning set forth in Section 2.2.

“Trademarks” has the meaning set forth in Section 2.2.4.

“Trade Secrets” has the meaning set forth in Section 2.2.4.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in [Name of the State].

1.4 Terms Defined in UCC.

Except as otherwise defined herein and unless the context requires otherwise, terms used in this Agreement shall have the meanings assigned to them in the UCC.

2. Assignment and Grant of Security Interest

2.1 Assigned Revenues.

To provide for the payment in full in cash when due, whether at stated maturity, by acceleration or otherwise, and performance in full when due, of the Obligations, the Borrower hereby assigns, conveys, transfers and sets over to the Trustee, absolutely and unconditionally, for the ratable benefit of the Secured Parties, all of the Borrower’s right, title and interest in, to and under the Assigned Revenues, whether now existing or owned or hereafter acquired or arising. The parties hereto acknowledge and agree that the assignment, conveyance, transfer and setting over of the Assigned Revenues hereunder shall constitute, for the purposes of [Name of the Country] law and all other purposes, a present, irrevocable and absolute assignment of the Assigned Revenues subject to no contingencies or conditions. The Assigned Revenues received pursuant to this Section 2.1 shall be applied in accordance with the provisions of the Trust Agreement.

2.2 Secured Collateral.

As collateral security for the payment in full in cash when due, whether at stated maturity, by acceleration or otherwise, and performance in full when due, of the Obligations, the Borrower hereby assigns, charges, conveys, transfers and sets over to the Trustee for the ratable benefit of the Secured Parties, and grants to the Trustee for the ratable benefit of the Secured Parties a continuing first priority security interest in, all of the Borrower’s right, title and interest in, to and under the following, whether now existing or owned or hereafter from time to time acquired or arising, but not including the Assigned Revenues to the extent assigned, conveyed, transferred and set over pursuant to Section 2.1 (the following, collectively, the “Secured Collateral”):

2.2.1 Contracts. The Contracts, including (a) all rights of the Borrower to receive and demand payment, or receive and compel performance, under or arising out of the Contracts, (b) all rights of the Borrower to receive any indemnity, warranty, guaranty or collateral security payments with respect to the Contracts, (c) all claims of the Borrower for damages arising out of or for breach of or default under the Contracts, and (d) all rights of the Borrower to exercise any election or option or to make any decision or determination or to give or receive any notice, consent, waiver or approval or to take any other action under or in respect of the Contracts (including the right to agree to the termination of any Contract or to any amendment or supplement to, or modification or waiver of, any of the terms and conditions thereof), as well as all the rights, powers, remedies and privileges on the part of the Borrower, whether arising under the Contracts, by statute, at law, in equity or otherwise, arising out of any breach, default or event of default thereunder.

2.2.2 Accounts. All securities accounts, deposit accounts or other accounts at any financial institution, including the Accounts, all funds on deposit in each such account, all securities, instruments, financial assets (as defined in Section 8‑102(a)(9) of the UCC) or other property credited to such accounts, all investments made with or arising out of such funds, all claims thereunder or in connection therewith, and all cash, securities, rights and other property at any time and from time to time received, receivable, or otherwise distributed in respect of such accounts, such funds, or such investments.

2.2.3 Money. All monies now or at any time in the possession or under the control of, or in transit to, the Trustee, any other Secured Party, the Borrower, or any bailee, agent or custodian of the Trustee, any other Secured Party or the Borrower.

2.2.4 Intellectual Property. All (a) patents or equivalent rights and patent applications throughout the world, including any reissues, divisions, continuations, continuations-in-part, renewals, or extensions thereof (collectively, “Patents”), (b) copyrights, certificates of copyright, copyright registrations and related applications throughout the world and any renewals or extensions thereof (collectively, “Copyrights”), (c) trade names, domain names, trademarks, service marks, trade styles, fictitious business names, business names, business identities, Borrower names, business identifiers, prints, labels, trade styles, trade dress, designs, logos and trademark and service mark applications and registrations and, in each case, the product lines and goodwill of the business connected with the use of, and symbolized by, each such trade name, trademark and service mark (whether or not registered), and any renewals or extensions thereof (collectively, “Trademarks”), (d) trade secrets, know‑how, inventions, processes, production methods, customer lists or other proprietary or confidential information (collectively, “Trade Secrets”) and (e) all licenses, license rights, license agreements, permits, franchises, income, royalties, damages and payments now or hereafter due or payable under and with respect to any of the foregoing, including all rights to sue and recover for all past, present and future infringements or misappropriation, all rights to tax refunds to which the Borrower is now or hereafter entitled and all other rights of any kind whatsoever accruing or pertaining thereto, in each case under any Applicable Law (collectively, including the Patents, Copyrights, Trademarks and Trade Secrets, other than those which by their respective terms or by operation of Applicable Law would become void, voidable, terminable or revocable if assigned, conveyed, transferred, or set over hereunder or if a security interest therein were granted hereunder or with respect to which and to the extent that Applicable Law prohibits any such assignment, conveyance, transfer, setting over or granting of a security interest, “Intellectual Property”).

2.2.5 Approvals. All Government Approvals now or hereafter held in the name, or for the benefit, of the Borrower (other than any Government Approval which by its terms or by operation of Applicable Law would become void, voidable, terminable or revocable if assigned, conveyed, transferred, or set over hereunder or if a security interest therein were granted hereunder or with respect to which and to the extent that Applicable Law prohibits any such assignment, conveyance, transfer, setting over or granting of a security interest).

2.2.6 Insurance. All insurance and insurance policies, and all claims, proceeds, return premiums and other payments and rights with respect thereto, whether or not the Trustee is the loss payee thereof.

2.2.7 Other Accounts, General Intangibles, etc. All (a) other accounts and general intangibles, including all letters of credit and proceeds of such letters of credit (including the S/C Contracts Performance Securities and the Jetty Contract Performance Bond) and contribution, warranty, guaranty, surety, indemnity, loan, collateral security, interest rate swap, interest rate cap and other contracts of whatever kind or type (other than the Financing Documents that are not Hedging Facilities), all rights of the Borrower to payment or other performance under or arising out of such contracts and all letter of credit rights (including under the S/C Contracts Performance Securities and the Jetty Contract Performance Bond), all claims of the Borrower for damages arising out of or for breach of or default under such contracts, and all rights of the Borrower to exercise any election or option or to make any decision or determination or to give or receive any notice, consent, waiver or approval or to take any other action under or in respect of such contracts (including the right to agree to the termination of any such contract, or to any amendment to, or waiver of, any of the terms and conditions thereof), as well as all the rights, powers, remedies and privileges on the part of the Borrower, whether under such contracts, by statute, at law, in equity or otherwise, arising out of any breach, default or event of default thereunder, (b) other rights of the Borrower to payments, arising by operation of law or otherwise, no matter how evidenced or represented, (c) instruments, letters of credit, uncertificated securities, documents, documents of title and chattel paper and (d) rights, warranties, claims and benefits of the Borrower against any Person arising out of, relating to or in connection with all or any part of any documents of title and chattel paper, including any such rights, warranties, claims or benefits against any Person storing or transporting any goods relating to such documents of title or chattel paper or issuing any such documents.

2.2.8 Books and Records. All books, records, and other documentation in whatever form maintained now or hereafter by or for the Borrower in connection with the Project, the Site or the Power Station or the conduct of its business, including ledgers, records indicating, summarizing, or evidencing the Borrower’s properties, business operations or financial condition, computer programs and software, computer diskettes, tapes, files, manuals, spreadsheets, computer printouts and any other computer‑prepared information and equipment of any kind, and all rights arising out of any contract between the Borrower and any service bureau or computer or data processing company charged with preparing or maintaining any of the Borrower’s books or records.

2.2.9 Proceeds. All cash and non‑cash proceeds of any and all of the foregoing items of Secured Collateral, including (and whether or not included in the definition of “proceeds” in the UCC) (a) all payments made or payable to the Borrower, all rights and benefits accruing to the Borrower and any moveable or immovable assets given as compensation to the Borrower in connection with (i) any requisition, expropriation, confiscation, condemnation, seizure, taking, forfeiture, or any similar action with respect to all or any part of the Secured Collateral by any Government Authority and (ii) any cancellation, rescission or declaration as null and void of any document constituting part of the Secured Collateral, and (b) any and all other amounts from time to time paid or payable under or in connection with any of the Secured Collateral.

2.3 Coverage by Mortgage.

The Borrower agrees that it shall not assert the existence of, or anything contained in or respect of, this Agreement as a defense to the enforcement of the Mortgage by the Trustee or any other Secured Party.

2.4 Rights in Defective Insurance.

In the event that any insurance whatsoever is taken by the Borrower otherwise than as required under the Common Agreement, or not properly endorsed to the Trustee as the sole loss payee or beneficiary in accordance with Section 7.18 and Schedule 7.18 of the Common Agreement, or not made upon the terms required in the Common Agreement, such insurance shall, to the extent permitted by Applicable Law, be considered assigned by this Agreement to the Trustee for the benefit of the Secured Parties with the right to make, settle, compromise and liquidate any and all claims thereunder, without prejudice to the exercise of any other rights, remedies, powers and privileges that the Trustee may have hereunder, at law, in equity or otherwise.

3. SUBSEQUENTLY ACQUIRED SECURED COLLATERAL

Promptly upon, but in no event later than [•] days after, receipt by the Borrower, the Borrower agrees to deliver to the Trustee in [Name of the City] all originals of all negotiable documents, instruments and chattel paper constituting Secured Collateral, duly endorsed and accompanied by executed instruments of transfer or assignment, all in form and substance satisfactory to the Trustee.

4. Consents and Acknowledgments

The Borrower agrees and confirms that the execution and delivery of the Consents and Acknowledgments will constitute: (a) notice to each Person providing its consent and acknowledgment thereunder of (i) the absolute and unconditional assignment, conveyance, transfer and setting over by the Borrower of all of its right, title and interest in, to and under the Assigned Revenues and (ii) the assignment, charge, conveyance, transfer and setting over by the Borrower by way of security of, and the granting of a security interest by the Borrower in, all of its right, title and interest in, to and under the Secured Collateral; and (b) unconditional and irrevocable instructions from the Borrower to each such Person that all payments due or to become due and all amounts payable to the Borrower in respect of the Assigned Revenues, the Contracts and any other Secured Collateral shall be made directly to the applicable Project Account specified therein or as otherwise directed by the Trustee.

5. Representations and Warranties

5.1 Representations and Warranties.

The Borrower makes all of the following representations and warranties to and in favor of the Trustee 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, and all of these representations and warranties shall survive the execution and delivery of this Agreement.

5.1.1 Good Title. The Borrower (a) is the sole owner of and has good, legal and marketable title to the Secured Collateral (other than its Leasehold Property), (b) has a lawful and valid right of use and possessory interest in those parcels of land comprising the Site, the Foreshore Area and all necessary easements and other rights of ingress and egress to the Site, (c) lawfully possesses a valid and subsisting leasehold estate in and to its Leasehold Property (if any) and (d) immediately prior to the assignment, conveyance, transfer and setting over of the Assigned Revenues hereunder, owned and had good, legal and marketable title to the Assigned Revenues. Except for the Liens granted to the Trustee for the benefit of the Secured Parties pursuant to this Agreement and other Permitted Liens, there are no Liens on, or agreements to secure an obligation by any Lien on, and no other Person has any right, title, claim or interest in, against or to, the Assigned Revenues or the Secured Collateral.

5.1.2 Assignment. The unconditional and absolute assignment, conveyance, transfer and setting over of the Assigned Revenues to the Trustee for the ratable benefit of the Secured Parties pursuant to this Agreement constitute a legal, valid and enforceable assignment, conveyance, transfer and setting over, subject to no Liens or prior assignment, conveyance, transfer or setting over. Other than those described on Schedule 3, which have already been made, completed or obtained, no filings, registrations, recordings, consents, approvals or other actions by or with any Government Authority or other Person are necessary (a) in order to assign, convey, transfer and set over the Assigned Revenues to the Trustee for the benefit of the Secured Parties pursuant to this Agreement or (b) for the exercise by the Trustee of the rights, powers, remedies and privileges granted pursuant to this Agreement with respect to the Assigned Revenues or otherwise.

5.1.3 Security Interest. Except as otherwise indicated in the legal opinions of the Borrower’s counsel provided pursuant to Section 4.1.26(a) of the Common Agreement, this Agreement creates in favor of the Trustee, for the benefit of the Secured Parties, a legal, valid and enforceable, and when the filing of financing statements in the jurisdictions identified on Schedule 4 and the other filings, registrations, recordings, consents, approvals, notices, acknowledgements and other actions described on Schedule 4 have been completed, first‑priority perfected security interest in the Secured Collateral, securing the payment and performance of the Obligations. Other than the filing of financing statements in the jurisdictions identified on Schedule 4 and the other filings, registrations, recordings, consents, approvals, notices, acknowledgments and other actions described on Schedule 4, no filings, registrations, recordings, consents, approvals, notices, acknowledgments or other actions by or with any Government Authority or other Person are necessary (a) in order to create, perfect, protect and preserve the security interests (and the priority thereof) of the Trustee for the ratable benefit of the Secured Parties in the Secured Collateral created or intended to be created by this Agreement or (b) for the exercise by the Trustee or any other Secured Party of the rights, powers, remedies and privileges granted pursuant to this Agreement with respect to the Secured Collateral or otherwise. No mortgage or financing statement or other instrument of record covering all or any part of the Assigned Revenues or Secured Collateral has been filed or registered in any recording office, except such as may have been filed in favor of the Trustee or the Secured Parties or in respect of any Permitted Lien.

5.1.4 Contracts. Each Contract is in full force and effect and has not been amended, modified or supplemented except as permitted by and in accordance with the terms of the Common Agreement. The obligations of the Borrower, the Jetty Contractor, each Shareholder and each Sponsor under the Contracts and, to the best of the Borrower’s knowledge after due inquiry, the obligations of each other Major Project Party under the Contracts, are the legal, valid and binding obligations of such Person 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). None of the Contracts are evidenced by promissory notes or other instruments other than those promissory notes and other instruments, more fully described in Schedule 6, the originals of which have been delivered to the Trustee in accordance with Section 3 and Section 5.1.6.

5.1.5 Place of Business. The place(s) of business and chief executive office of the Borrower and the office(s) where the Borrower keeps its records concerning the Assigned Revenues and the Secured Collateral are located at the addresses set forth on Schedule 4, or such other addresses set forth in the most recent notice delivered to the Trustee pursuant to Section 6.4. The Borrower has no trade name other than [AAA]. Except as set forth on Schedule 4, during the past [•] years, the Borrower has not been known by any legal name different from the one set forth on the signature page to the Omnibus Agreement, and the Borrower has not been the subject of any merger or other corporate reorganization.

5.1.6 Delivery. As of the Initial Disbursement Date, and as of each date thereafter on which the Borrower makes or is deemed to make this representation, the Borrower has delivered to the Trustee in [Name of the City] all originals of all negotiable documents, instruments and chattel paper constituting Secured Collateral now owned by the Borrower, duly endorsed and accompanied by duly executed instruments of transfer or assignment in form and substance satisfactory to the Trustee.

5.1.7 Intellectual Property. Except as set forth on Schedule 5, the Borrower does not own any Intellectual Property material to the design, development, construction, start‑up, commissioning, testing, financing, implementation, ownership, operation or maintenance of the Power Station.

5.2 Restatement.

Each of the representations and warranties set forth in Section 5.1 shall be deemed restated automatically with respect to any additional Assigned Revenues or Secured Collateral at each such time as any additional Assigned Revenues or Secured Collateral is acquired by the Borrower.

6. Covenants

In addition to the covenants of the Borrower set forth in the other Transaction Documents, which are incorporated herein by this reference, and elsewhere in this Agreement, the Borrower covenants and agrees with the Trustee for the benefit of the Secured Parties that until all Obligations have been indefeasibly paid and performed in full and all Commitments have been terminated:

6.1 Defend Against Claims.

It shall, at its expense, defend the Trustee’s and the Secured Parties’ interest in the Assigned Revenues and the Secured Collateral against the claims and demands of all other Persons, and it shall appear in and defend any action, suit or proceeding which may affect its title to the Secured Collateral or the Trustee’s and the Secured Parties’ interest in the Assigned Revenues or the Secured Collateral.

6.2 No Other Grant.

It shall not, and shall not agree to, (a) create, incur the creation of, assume, suffer to exist or permit any Lien upon or with respect to any of the Assigned Revenues and the Secured Collateral, except for the Liens granted pursuant hereto and other Permitted Liens, nor (b) sell, assign, transfer, convey, set over, surrender or otherwise dispose of, or grant any right or interest with respect to, any of the Assigned Revenues and the Secured Collateral, except as permitted by Section 8.5 of the Common Agreement.

6.3 Taxes.

It shall pay or arrange for payment prior to delinquency of all Taxes and all other charges now or hereafter imposed upon, relating to or affecting any Assigned Revenues or the Secured Collateral, either by reason of the execution, issue, delivery, registration, notarization, perfection, performance, or for the legality, validity or enforceability, of this Agreement or otherwise, except as otherwise permitted by Section 7.14 of the Common Agreement.

6.4 Place of Business; Records.

It shall: (a) keep its place(s) of business and chief executive office and the office(s) where it keeps its records concerning the Assigned Revenues and the Secured Collateral located at the addresses set forth in Schedule 4 or, upon [•] days’ prior written notice to the Trustee of its intention to establish or relocate to a new office, at such other locations in a jurisdiction in which all action required to perfect and maintain the perfection and priority of the security interests granted or purported to be granted by this Agreement shall have previously been taken with respect to the Secured Collateral; (b) not change its name; (c) maintain, hold and preserve complete records concerning the Assigned Revenues and the Secured Collateral, including originals of all documentation with respect thereto (except for those original documents required to be delivered to the Trustee pursuant hereto), records of all payments received, all credits granted thereon and all other dealings with respect thereto; (d) permit upon reasonable prior written notice from the Trustee or any Secured Party, and at reasonable times during the Borrower’s usual business hours, representatives of the Trustee or such Secured Party to inspect and make copies of abstracts from such records and discuss the affairs and accounts of the Borrower with, and be advised as to the same by, its officers all to such reasonable extent as such representatives may request; provided, however, that the requirement to provide notice hereunder shall not delay the exercise of or otherwise prejudice any remedies that the Trustee or the Secured Parties may have under this Agreement or otherwise upon the occurrence of an Event of Default; and (e) if the Trustee so directs, place a legend in form, substance and manner satisfactory to the Trustee on any of the Contracts and other agreements related to the Assigned Revenues, and on any instruments in its possession, as well as on books, records, chattel paper and documents of the Borrower, evidencing or pertaining to the same or other Secured Collateral with an appropriate reference to the fact that the relevant Contract, other agreement, instrument in its possession, or other Secured Collateral has been assigned to the Trustee for the benefit of the Secured Parties and that the Trustee has the interests therein set out in this Agreement.

6.5 Notify Account Parties.

It shall, at the request of the Trustee made at any time and from time to time, at its expense and by a writing in form and substance satisfactory to the Trustee, promptly (a) notify each obligor or account debtor under or with respect to the Assigned Revenues or any other Secured Collateral of the assignment and security interest granted or purported to be granted by this Agreement and (b) direct each such obligor or account debtor to make all payments directly to the Project Account specified by the Trustee. The Borrower shall use its best efforts to (i) cause to be collected, as and when due (including amounts that are delinquent, such amounts to be collected in accordance with generally accepted lawful collection procedures), any and all amounts payable by each obligor under or with respect to the Assigned Revenues or the Secured Collateral and (ii) cause each obligor to make all such payments directly to such Project Account. If the Borrower shall receive from any obligor or any other Person any monies with respect to the Assigned Revenues or the Secured Collateral, the Borrower shall receive such payment in a constructive trust for the Trustee, subject to the rights granted to the Trustee and the other Secured Parties hereunder, and shall immediately, and in any event no later than [•] Business Days following receipt of such payment, transmit and deliver such payment to the Trustee if in Pesos and to the Trustee if in Dollars, in the same form as so received (with any necessary endorsement) along with a description of the sources of funds sufficient for such Trustee to identify the appropriate Project Account to credit with such funds, to be held or applied by the Trustee as Assigned Revenues or Secured Collateral, as the case may be, under the terms of this Agreement and the Trust Agreements.

6.6 Protection of the Trustee’s Interests.

It shall do nothing to impair the rights of the Trustee or the other Secured Parties in the Assigned Revenues and the Secured Collateral; provided, however, that nothing in this Section 6.6 shall prevent the Borrower, prior to the exercise by the Trustee of any such rights, from undertaking the Borrower’s operations in the ordinary course of business. The Borrower assumes all liability and responsibility in connection with the Assigned Revenues and the Secured Collateral, and the liability of the Borrower with respect to the Obligations shall in no way be affected or diminished by reason of the fact that such Assigned Revenues and Secured Collateral may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to the Borrower.

6.7 Protect Intellectual Property.

It shall take all necessary steps to preserve and maintain all rights in the Intellectual Property that are material to the design, development, construction, ownership, operation or maintenance of the Power Station and the value thereof, including payment of maintenance fees, filing of applications for renewal, affidavits of use, affidavits of incontestability and oppositions, filing of interference and cancellation proceedings, suing for infringement, misappropriation or dilution, and taking such other actions as are appropriate under the circumstances to protect the value of such Intellectual Property.

6.8 Notify Regarding Intellectual Property.

It shall notify the Trustee immediately in the event it knows or has reason to know that (a) it has obtained rights to any new Intellectual Property that is material to the design, development, construction, ownership, operation, or maintenance of the Power Station, (b) any Intellectual Property that is material to the design, development, construction, ownership, operation, or maintenance of the Power Station may become abandoned or dedicated to the public domain, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in or with any Government Authority) regarding the Borrower’s ownership or use of such Intellectual Property or its right to patent or register the same or (c) any Intellectual Property that is material to the design, development, construction, ownership, operation, or maintenance of the Power Station infringes or misappropriates the intellectual property rights of any third party, or is infringed, misappropriated or diluted by any third party.

6.9 Patent, Trademark and Copyright Filings.

It shall refrain from filing, either itself or through any officer, director, employee, licensee, designee or other agent, an application for a Patent, or for the registration of a Trademark or Copyright, in any country or any political subdivision thereof, unless the Borrower promptly informs the Trustee, and, upon request of the Trustee executes and delivers any and all agreements and other writings as the Trustee may request to evidence and perfect the Trustee’s Lien in such Patent, Trademark or Copyright application.

7. Further Assurances

The Borrower agrees that at any time and from time to time, at its own expense, it will promptly procure, execute and deliver such instruments, agreements, allonges, endorsements and other writings, including Government Approvals and consents of any Persons, and take such further action, as may be necessary, or that the Trustee may deem reasonably advisable and request, in order to establish, maintain, preserve, protect and perfect the Trustee’s and the Secured Parties’ rights in, to and under the Assigned Revenues and Secured Collateral and any assignment or security interest (and the priority thereof) granted or purported to be granted by this Agreement, or to enable the Trustee to exercise and enforce its rights, powers, remedies and privileges under this Agreement. Without limiting the generality of the foregoing, the Borrower further agrees that it shall, no later than [•] ([•]) Business Days prior to the Initial Disbursement Date and at any time and from time to time thereafter, at its own expense, execute, file, register and record such financing statements, registrations, notices, vouchers, invoices, confirmatory assignments, conveyances, endorsements, certificates and other writings, and take such other actions, with respect to the Assigned Revenues, Secured Collateral and this Agreement, with such Government Authorities or any other Persons, as the Trustee may reasonably request. The Borrower will pay any applicable filing fees and related expenses. The Borrower authorizes the Trustee to file, register and record any such financing statements, registrations, notices and other writings without the signature of the Borrower.

8. Power of Attorney

8.1 Powers.

The Trustee (or any nominee or agent designated by it) shall have the right, in the name of the Borrower, or in the name of the Trustee or nominee or agent designated by the Trustee, without notice to or assent by the Borrower, and the Borrower hereby constitutes and irrevocably appoints the Trustee (and any nominee or agent designated by it) as the Borrower’s true and lawful attorney-in-fact, with right of substitution and full power and authority, and without need of further authorization from the Borrower, (a) to establish, perfect, protect and preserve the security interests (and priority thereof) intended to be created by this Agreement and (b) upon the occurrence of an Event of Default and for so long as such Event of Default is continuing and has not been waived in accordance with the provisions of the Financing Documents, to exercise its rights, remedies, powers and privileges under this Agreement, including:

8.1.1 without notice, except as provided in Section 11.14, to sell, lease, or otherwise dispose of the Assigned Revenues or Secured Collateral, or any part thereof, in one or more public or private sales, at any exchange or broker’s board or at any of the offices of such attorney‑in‑fact or elsewhere, whether or not such Assigned Revenues or Secured Collateral is present at the place of sale, for cash, on credit or for future delivery (without the Trustee being required to assume any credit risk therefor), and, in general, at such time and on such terms as the Trustee may determine to be desirable;

8.1.2 to ask, demand, collect, receive and give acquittances and receipts for any and all money, claims and other amounts due and to become due in respect of any Assigned Revenues or Secured Collateral, and to take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of money due in respect of any Assigned Revenues or Secured Collateral and to hold the same as security for the timely payment and discharge of the Obligations;

8.1.3 to exercise any of the rights of the Borrower arising under or in connection with the Assigned Revenues and Secured Collateral or any agreement related thereto and to designate or delegate to another Person, in substitution for such attorney‑in‑fact, the exercise of such rights of the Borrower, under such terms as such attorney‑in‑fact deems proper or necessary;

8.1.4 to notify Persons liable to the Borrower with respect to any of the Assigned Revenues and Secured Collateral of the assignment and grant of security interests under this Agreement, instructing any or all of them to pay all monies due and owing thereunder to the Borrower from time to time, to such of the Project Accounts as are designated in the notice;

8.1.5 to enter onto property where any Secured Collateral or any part thereof is located and take possession thereof with or without judicial process;

8.1.6 prior to the disposition of any Secured Collateral, to store, process, repair or recondition it or otherwise prepare it for disposition in any manner, and to the extent such attorney‑in‑fact deems appropriate and in connection with such preparation, without charge, use any Trademark, Copyright, Patent or other rights with respect to Intellectual Property used by the Borrower;

8.1.7 to execute, deliver, file and record any and all endorsement, allonges, assignments and other transfer documents, financing statements, instruments, notices and other writings;

8.1.8 to file any claim, institute any suit, action or other proceeding in any court of law or equity or in arbitration or otherwise or take any other action deemed appropriate by such attorney‑in‑fact for the purpose of collecting any and all money due in respect of any Assigned Revenues or Secured Collateral, to enforce any other right in respect of any Assigned Revenues or Secured Collateral or any agreement with respect thereto, and to negotiate, enter into or terminate any agreement constituting or relating to the Assigned Revenues or Secured Collateral;

8.1.9 to defend any suit, claim, action or other proceeding brought against the Borrower with respect to any Assigned Revenues or Secured Collateral;

8.1.10 to settle, compromise or adjust any suit, claim, action or other proceeding described above and, in connection therewith, give such discharges or releases as such attorney‑in‑fact may deem appropriate;

8.1.11 to execute and deliver such deeds of conveyance or sale as may be necessary or proper for the purpose of conveying full legal and equitable title and ownership, free from any claims and rights of the Borrower, to any of the Secured Collateral or Assigned Revenues;

8.1.12 to take and retain actual possession and control of any such Secured Collateral as receiver without bond or otherwise, and transport any of it to any location as determined by such attorney‑in‑fact;

8.1.13 to make any repairs, additions and improvements to or on the Secured Collateral as such attorney‑in‑fact reasonably deems proper or necessary;

8.1.14 to administer, manage and use any of the Secured Collateral;

8.1.15 to withdraw all or any funds then available in or thereafter received into the Project Accounts in accordance with, and to exercise such rights as are granted to them pursuant to, the Trust Agreements and this Agreement;

8.1.16 to exercise the right of the Borrower to deliver a Buyout Notice under the ECA, and to designate or delegate to another Person, in substitution for such attorney‑in‑fact, the exercise of such right of the Borrower, under such terms as such attorney‑in‑fact deems proper or necessary;

8.1.17 subject to the provisions of any Consent and Acknowledgment, to remedy any default by the Borrower under the Contracts on the Borrower’s behalf within any applicable grace period (or such other period as the Trustee and the Persons other than the Borrower who are parties to such Contracts may agree); and

8.1.18 in general, to enter into such agreements and documents and perform such acts and things as are required, necessary or, in the opinion of such attorney‑in‑fact, advisable, to fully accomplish the purpose of this Agreement.

The foregoing power of attorney is coupled with an interest and is irrevocable until all Obligations have been indefeasibly paid and performed in full and all Commitments have been terminated. The Borrower hereby confirms and ratifies all that the Trustee (or any nominee or agent designated by it) shall lawfully and in good faith do or cause to be done by virtue of and in compliance with this Section 8.

8.2 Event of Default: Borrower’s Abstention.

Upon the occurrence and during the continuance of any Event of Default that has not been waived in accordance with the Financing Documents, the Borrower shall abstain from exercising any rights under any of the Transaction Documents which shall be inconsistent with the exercise of the rights, powers, remedies, privileges and functions granted in this Agreement to the Trustee as the Borrower’s attorneys‑in‑fact, including abstaining from collecting, claiming and receiving any Assigned Revenues; provided, however, that nothing in this Section 8.2 shall prevent the Borrower from, prior to the exercise by the Trustee of any such rights, powers, remedies, privileges and functions, undertaking the Borrower’s operations in the ordinary course of business in accordance with the Financing Documents.

8.3 License to Use Intellectual Property.

The Borrower hereby grants to the Trustee an irrevocable, non‑exclusive, transferable, royalty‑free license, with the right to grant sublicenses, under any and all rights with respect to Intellectual Property now owned or hereafter acquired by the Borrower or which the Borrower now or may hereafter have the right to license for the purpose of exercising its rights, remedies, powers and privileges hereunder at such time such as it shall be lawfully entitled to exercise such rights, remedies, powers and privileges, and for no other purpose. The Borrower agrees that in order to enable the Trustee to exercise such license rights, it shall provide to the Trustee reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.

9. Responsibility Under Contracts

Notwithstanding any provision contained in this Agreement to the contrary, (a) the Borrower shall remain liable under each document, instrument and agreement, including the Contracts, evidencing the Assigned Revenues or otherwise included in the Secured Collateral to the extent set forth therein, and shall perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Trustee of any of the rights, powers, remedies or privileges conferred upon it under this Agreement shall not release the Borrower from any of its duties or obligations under any such document, instrument or agreement and (c) neither the Trustee nor any other Secured Party shall have any obligations or liability under any such document, instrument or agreement by reason of this Agreement or any action that it takes hereunder (including by exercising its rights hereunder to attempt to cure a default by the Borrower under any such document, instrument or agreement), nor shall the Trustee or any other Secured Party be obligated to perform any of the obligations or duties of the Borrower thereunder, or to take any action to collect or enforce any claim for payment assigned hereunder.

10. Limits of Responsibility

Notwithstanding any provision contained in this Agreement to the contrary, neither the Trustee nor any other Secured Party shall have responsibility for (a) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Secured Collateral or Assigned Revenues, whether or not the Trustee or such other Secured Party has or is deemed to have knowledge of such matters, or (b) taking any steps to preserve any rights against any Persons with respect to any Secured Collateral. The Trustee’s and each other Secured Party’s sole duty with respect to the custody, safekeeping and physical preservation of the Secured Collateral in its possession, under Section 9‑207 of the UCC or otherwise, shall be to deal with such Secured Collateral in the same manner as such Person deals with similar property for its own account. Neither the Trustee nor any other Secured Party, nor their respective directors, officers, employees or agents, shall (i) be liable for failure to demand, collect or realize upon any of the Assigned Revenues or the Secured Collateral or for any delay in doing so, except as provided in Section 10.6.1 and Section 11.3.8 of the Common Agreement, (ii) be under any obligation to sell or otherwise dispose of any of the Assigned Revenues and the Secured Collateral upon the request of the Borrower or any other Person, or (iii) be under any obligation to take any other action whatsoever with regard to the Assigned Revenues or the Secured Collateral or any part thereof (and nothing herein shall be deemed to be a consent by the Trustee or any other Secured Party to a delegation by the Borrower of any obligations and duties with respect to any Secured Collateral). The rights of the Trustee and the other Secured Parties hereunder shall not be conditioned or contingent upon the pursuit by the Trustee or any other Secured Party of any right, power, remedy or privilege against the Borrower or against any other Person which may be or becomes liable in respect of all or any part of the Obligations or against any collateral security therefor, guarantee thereof or right to offset with respect thereto. Neither the Trustee nor any other Secured Party shall have any obligation to exercise any of its rights, powers, remedies or privileges under this Agreement.

11. Remedies

Upon the occurrence and during the continuance of an Event of Default that has not been waived in accordance with the Financing Documents, the Trustee may, at its election, and in addition to other rights, powers, remedies and privileges provided for in this Agreement (including Section 8) or otherwise available to it under the Common Agreement or any other Transaction Document, do any one or more of the following all of which the Borrower hereby agrees to be commercially reasonable:

11.1 General Enforcement.

Exercise any and all the rights, powers, remedies and privileges of a secured party under the UCC (whether or not the UCC is in effect in the jurisdiction where such rights, powers, remedies and privileges are asserted) and other Applicable Laws, including the right, to the maximum extent permitted by Applicable Law, to exercise all voting, consensual and other powers of ownership pertaining to the Secured Collateral as if the Trustee were the sole and absolute owner of the Secured Collateral (and the Borrower agrees to take all such action as may be appropriate to give effect to such right).

11.2 Sale, etc.

Without notice, except as provided in Section 11.14, sell, lease, or otherwise dispose of the Secured Collateral or Assigned Revenues, or any part thereof, in one or more public or private sales, at any exchange or broker’s board or at any of the Trustee’s offices or elsewhere, whether or not such Secured Collateral is present at the place of sale, for cash, on credit or for future delivery (without the Trustee being required to assume any credit risk therefor), and, in general, at such time and on such terms as the Trustee may determine to be desirable.

11.3 Costs of Remedies.

Recover from the Borrower all costs, expenses, charges and fees, including reasonable attorneys’ fees and disbursements, incurred or paid by such Trustee or any other Secured Parties in exercising any right, power, remedy or privilege provided by this Agreement or by Applicable Law, and the Borrower undertakes within [•] Business Days after written demand to pay the same or, as the case may be, to reimburse the Trustee, the other Secured Parties and/or their respective agents, representatives, successors and assigns, as the case may be, for any such costs, expenses, charges or fees paid by them with interest thereon at the rate per annum equal to the Default Rate from the date that is [•] Business Days from the date the same shall have been demanded by any such Person until paid by the Borrower; 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.

11.4 Assembly of Secured Collateral.

Require the Borrower to assemble the Secured Collateral and make it available to the Trustee at a place designated by the Trustee.

11.5 Take Possession of Secured Collateral.

Enter onto property where any Secured Collateral is located and take possession thereof with or without judicial process or notice, and use, in connection therewith, any and all services, supplies and other facilities of the Borrower.

11.6 Administration of Assigned Revenues and Secured Collateral.

Administer, manage and use any of the Assigned Revenues or Secured Collateral.

11.7 Exercise Rights of the Borrower.

Exercise any of the rights of the Borrower arising under or in connection with the Assigned Revenues or Secured Collateral or any agreement related thereto and designate another Person to serve as attorney‑in‑fact for purposes of exercising such rights of the Borrower, under such terms as such attorney‑in‑fact shall deem proper or necessary.

11.8 Claim Benefits of Assigned Revenues and Secured Collateral.

Collect, claim, withdraw and receive all moneys, securities and like instruments and avail itself of all benefits that accrue, and that may become due and payable to the Borrower with respect to the Assigned Revenues or Secured Collateral.

11.9 Execute Deeds of Conveyance.

Execute and deliver such deeds of conveyance or sale as may be necessary or proper for the purpose of conveying full title and ownership, free from any claims and rights of the Borrower, to any of the Assigned Revenues or Secured Collateral, after foreclosure thereof.

11.10 Preparation and Condition of Secured Collateral.

Prior to the disposition of any Secured Collateral, process, repair, recondition and store it or otherwise prepare and preserve it for disposition, in any manner and to the extent the Trustee deems appropriate and in connection with such preparation and preservation, without charge, use any Trademark, Copyright, Patent or other rights with respect to Intellectual Property used by the Borrower. Any of the Secured Collateral may be sold, assigned, leased or otherwise disposed of, in the condition in which the same existed when taken by the Trustee or after any such processing, repair, reconditioning, preparation or preservation.

11.11 Receivables.

Ask, demand, collect, receive and give acquittances and receipts for any and all money, claims and other amounts due and to become due to the Borrower representing dividends, interest payments and other distributions in respect of any Assigned Revenues or Secured Collateral, and to take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of money due in respect of any Assigned Revenues or Secured Collateral and to hold the same as security for the timely payment and discharge of the Obligations.

11.12 Application of Cash.

Apply any cash held by the Trustee as Secured Collateral or Assigned Revenues and all proceeds received by the Trustee in respect of any sale of, collection from, or other realization upon all or any part of the Secured Collateral or Assigned Revenues in accordance with the terms of the Financing Documents, including the Intercreditor Agreement and the Trust Agreement.

11.13 Delivery to and Rights of Purchaser.

Upon any sale, lease or other disposition pursuant to this Agreement, deliver, assign and transfer to the purchaser thereof the Secured Collateral or Assigned Revenues or portion thereof so sold, leased or disposed. Each purchaser at any such sale or other disposition (including any Secured Party) shall hold the Secured Collateral or Assigned Revenues free from any claim or right of whatever kind, including any equity or right of redemption of the Borrower, and the Borrower specifically and irrevocably waives (to the fullest extent permitted by Applicable Law) all rights of redemption, stay or appraisal which it has or may have under any Applicable Law.

11.14 Manner of Sale of Secured Collateral.

Provide the Borrower at least [•] Business Days’ prior notice (or such other period as may be required by Applicable Law) of the time and place of any public sale or the time after which any private sale or other disposition is to be made with respect to any Secured Collateral owned by the Borrower or Assigned Revenues, which notice the Borrower hereby agrees shall constitute reasonable notification thereof. The Trustee shall not be obligated to make any sale of the Secured Collateral or Assigned Revenues regardless of notice of sale having been given. To the extent permitted by Applicable Law, the Secured Parties, or any one or more of them, shall have the right to purchase the Secured Collateral or Assigned Revenues, or any part thereof, at any public or private sale, and shall have the right to credit against the amount of the bid made for the Secured Collateral or Assigned Revenues the amount otherwise payable to the purchasing Secured Party or Secured Parties out of the net proceeds of such sale. The Trustee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sales may, without further notice, be made at the time and place to which it was so adjourned. To the fullest extent permitted by Applicable Law, the Borrower hereby irrevocably waives any claims, rights, damages and demands against the Trustee or any other Secured Party arising out of the sale of the Secured Collateral or Assigned Revenues, including by reason of the fact that the price at which any Secured Collateral or Assigned Revenues may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Trustee accepts the first offer received and does not offer such Secured Collateral or Assigned Revenues to more than one offeree, or by reason of the fact that any sale of the Secured Collateral or Assigned Revenues, or any part thereof, or any aspect thereof or matter relating thereto, was not commercially reasonable in any respect, except as provided in Section 10.6.1 and Section 11.3.8 of the Common Agreement. If, under requirements of Applicable Law, the Trustee will be required to make disposition of the Secured Collateral or Assigned Revenues within a period of time that does not permit the giving of notice to the Borrower as hereinabove specified, the Trustee need give the Borrower only such notice of disposition as is reasonably practicable in view of such requirements of Applicable Law. The Borrower agrees to do or cause to be done all such other acts and things as may be necessary to make such sale of all or any portion of the Secured Collateral valid and binding and in compliance with all Applicable Laws.

12. Deficiency; Waiver of Claims; Etc.

12.1 Deficiency.

If the proceeds of, or other realization upon, the Secured Collateral by virtue of the exercise of remedies under Section 11 are insufficient to cover the costs and expenses of such exercise and the payment in full of the other Obligations, the Borrower shall remain liable for any deficiency and all rights, remedies, powers and privileges of the Trustee and the other Secured Parties in respect thereof are hereby reserved.

12.2 Independent Security.

The security provided for in this Agreement is in addition to and is independent of every other security that the Trustee or any other Secured Party may at any time hold for any of the Obligations hereby secured, whether or not under the Security Documents, and nothing contained herein will impair or extinguish any rights or obligations under any of the other Security Documents. Subject to the provisions of the Intercreditor Agreement and the relevant Financing Documents to which it is a party, each Secured Party will be at liberty to (a) accept further security from the Borrower or any other Person or release such security without consulting or notifying the Borrower and without affecting in any way the obligations and liabilities of the Borrower under the Financing Documents and (b) decide, in its sole discretion, to enforce any right, power, remedy or privilege under the Security Documents, at law, in equity or otherwise with respect to any security for the Obligations.

12.3 Discontinuance of Proceedings.

If the Trustee has instituted any proceeding to enforce any right, power, remedy or privilege under this Agreement by foreclosure, sale, entry or otherwise, and such proceeding is discontinued or abandoned for any reason or is determined adversely to the Trustee, then and in every such case the Borrower, the Trustee and each of the other Secured Parties shall be restored to their former positions and rights hereunder with respect to the Secured Collateral or Assigned Revenues subject to the Liens created under this Agreement, and all rights, remedies, powers and privileges of the Trustee shall continue as if no such proceeding had been instituted subject only, in the case of a proceeding determined adversely to the Trustee, to the terms of any determination made in such proceeding.

12.4 Waiver.

Except as otherwise expressly provided in this Agreement, the Borrower irrevocably waives, to the fullest extent permitted by Applicable Law, notice and judicial hearing in connection with the Trustee’s or any other Secured Party’s exercise of its rights with respect to any Secured Collateral, including any and all prior notice and hearing for any prejudgment remedy or remedies and any other similar right the Borrower would otherwise have under Applicable Law of [Name of the Country] or [Name of the Country]. The Borrower further irrevocably waives, to the fullest extent permitted by Applicable Law:

12.4.1 all damages occasioned by any such exercise of rights (or any failure to exercise such rights) except as provided in Section 10.6.1 and Section 11.3.8 of the Common Agreement;

12.4.2 all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Trustee’s rights hereunder; and

12.4.3 all rights of redemption, appraisal, valuation, stay, extension or moratorium under any Applicable Law in order to prevent or delay the enforcement of this Agreement or the absolute sale of the Secured Collateral or Assigned Revenues or any portion thereof, and the Borrower, for itself and all who may claim under it, insofar as it or they now or hereafter lawfully may, irrevocably waives the benefit of all such Applicable Laws.

12.5 Divestiture.

To the fullest extent permitted by Applicable Law, any sale by the Trustee or any other Secured Party of, or the grant of options to purchase, or any other realization upon, any Secured Collateral or Assigned Revenues will operate to divest all right, title and interest, either at law or in equity, of the Borrower therein and thereto, and will be a perpetual bar both at law and in equity against the Borrower, and against any and all Persons claiming or attempting to claim from, through and under the Borrower, from claiming any right, title or interest in, to or under the Secured Collateral so sold, optioned or realized upon, or any part thereof.

12.6 No Sale.

No reference in this Agreement to proceeds or to the sale or other disposition of Secured Collateral shall authorize the Borrower to sell or otherwise dispose of any Secured Collateral to the extent such sale or disposition is prohibited or restricted by the terms of any Financing Document.

13. Miscellaneous

13.1 Payment of Expenses, Etc.

Without prejudice to the Borrower’s obligations under Sections 11.3, all costs and expenses of the Trustee and the other Secured Parties shall be paid in accordance with Section 11.1 of the Common Agreement.

13.2 Notices.

All notices provided for hereunder shall be given in accordance with Section 11.5 of the Common Agreement.

13.3 No Waiver; Remedies Cumulative.

13.3.1 No Waiver. No failure or delay on the part of the Trustee (or any nominee or agent appointed by it) or any other Secured Party in exercising any right, remedy, power or privilege hereunder or under any other Secured Document and no course of dealing between the Borrower, on the one hand, and the Trustee (or any nominee or agent appointed by it) or any other Secured Party, on the other hand, shall impair any such right, remedy, power or privilege or operate as a waiver thereof. No single or partial exercise of any right, remedy, 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, remedy, power or privilege hereunder or thereunder. Any waiver hereunder shall be in a writing signed by the Trustee 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 the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Trustee or any other Secured Party to any other or further action in any circumstances without notice or demand. Nothing herein shall be construed to limit the rights to indemnity granted by the Borrower to the Trustee or any other Secured Party under any other Financing Document.

13.3.2 Remedies Cumulative. The rights, remedies, powers and privileges herein or in any other Financing Document expressly provided are cumulative and not exclusive of any rights, remedies, powers or privileges which any party hereto or thereto would otherwise have.

13.4 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.

13.5 No Amendments.

This Agreement shall only be modified, amended or supplemented with the express written consent of the Borrower and the Trustee acting at the direction of the Administrative Agent.

13.6 English Language.

This Agreement is made in the English language. Any translation of this Agreement shall have no legal validity.

13.7 Entire Agreement.

This Agreement and the other Financing Documents embody the entire agreement and understanding of the Borrower and the Secured Parties, and supersede all prior agreements and understandings of the Borrower and the Secured Parties, relating to the subject matter herein contained.

13.8 Waiver of Sovereign Immunity.

The Borrower 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 the Borrower or any of its 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, the Borrower 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. The Borrower agrees that the waivers set forth above are made to the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States of America and are intended to be irrevocable and not subject to withdrawal for purposes of such Act.

13.9 Governing Law; Submission To Jurisdiction; Venue; Waiver Of Jury Trial.

13.9.1 GOVERNING LAW. THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF [Name of the Country].

13.9.2 Submission To Jurisdiction. Any legal action or proceeding against the Borrower 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, the Borrower irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The Borrower 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.

13.9.3 Appointment of Process Agent. The Borrower irrevocably designates, appoints and empowers [•], with offices on the date hereof at [Address]., 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. The Borrower agrees that the failure of such agent to give any advice of any such service of process to the Borrower shall not impair or affect the validity of such service or of any judgment in any action commenced on the basis of such service. The Borrower agrees that if for any reason such designee, appointee and agent shall cease to be available to act as such, the Borrower 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.

13.9.4 Service of Process. The Borrower further irrevocably consents to the service of process out of any of the courts referred to in Section 13.9.2 in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to the Borrower at its address set forth in Annex I to the Common Agreement, such service to become effective five days after such mailing. Nothing herein shall affect the right of the Trustee or any other Secured Party to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against the Borrower in the [Name of the Country] or in any other court or tribunal having jurisdiction.

13.9.5 Waiver Of Objection To Venue Or Forum. The Borrower 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 13.9.2. The Borrower 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.

13.9.6 WAIVER OF JURY TRIAL. THE BORROWER 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.

13.10 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.

13.11 Assignments.

This Agreement shall be binding upon, inure to the benefit of and be enforceable by the respective successors and assigns of the Borrower, the Trustee and the other Secured Parties; provided, however, that the Borrower 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. The Trustee may assign or transfer any of its rights or obligations hereunder in connection with an assignment or transfer of its rights or obligations under and in accordance with the Financing Documents. Any other Secured Party may assign or transfer 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 in contravention of this Section 13.11 shall be null and void.

13.12 Special Exculpation, Indemnity.

None of the Secured Parties shall be liable to the Borrower or any other Person for any indirect, special, consequential or punitive damages (including any loss of profit, business opportunity or anticipated savings) 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.

13.13 Reinstatement.

This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Borrower’s obligations hereunder or under any of the other Financing Documents, or any part thereof, is, pursuant to Applicable Law, rescinded or reduced in amount, or must otherwise be restored or returned by the Trustee or any other Secured Party. In the event that any payment or performance or any part thereof is so rescinded, reduced, restored or returned, such obligations shall be reinstated and deemed to be reduced only by such amount paid or performed and not so rescinded, restored or returned. To the extent any such reinstatement would not be effective under Applicable Law, the Borrower covenants and agrees to secure the Obligations on the same terms and conditions and with the same force and effect as this Agreement and the Liens hereunder, by (a) executing and delivering to the Trustee a new agreement with the same terms and conditions as are contained in this Agreement and (b) doing all things the Trustee deems necessary to create new Liens equivalent to those created hereunder, and, if applicable, duly perfecting such Liens. Without limiting the indemnity obligations of the Borrower contained elsewhere in this Agreement or in any other Financing Document, the Borrower shall indemnify the Trustee and each other Secured Party within [•] Business Days after written demand for all reasonable costs and expenses (including fees and expenses of counsel) incurred by the Trustee or other Secured Party in connection with such rescission or restoration.

13.14 Authority of the Trustee.

The Borrower acknowledges that the rights and responsibilities of the Trustee under this Agreement with respect to any action taken, suffered or omitted by the Trustee or the exercise or non‑exercise by the Trustee of any power, right or remedy provided for or resulting or arising out of this Agreement shall, as between the Trustee and the Secured Parties, be governed by the Common Agreement, the Trust Agreement, the Intercreditor Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Trustee and the Borrower, the Trustee shall be conclusively presumed to be acting as the Trustee for the Secured Parties with full and valid authority so to act or refrain from acting, and the Borrower shall be under no obligation or entitlement to make any inquiry respecting such authority.

13.15 Continuing Security Interest; Termination.

This Agreement shall create a continuing security interest in the Secured Collateral and shall apply to all past, present and future Obligations, including Obligations that arise under transactions that continue any of the Obligations, increase or decrease any of the Obligations, or from time to time create new Obligations after all or any prior Obligations have been satisfied. Upon the indefeasible payment, performance and discharge in full of all Obligations and the termination of all Commitments, (a) the security interests granted under this Agreement shall terminate and the Borrower shall be entitled to the return upon its written request and at its expense, of such of the Secured Collateral in the possession of the Trustee as shall not have been sold or otherwise applied pursuant to the terms hereof, and (b) the Trustee shall execute and deliver to the Borrower, at the Borrower’s expense, any instruments reasonably requested by the Borrower (which may include a UCC termination statement) acknowledging such termination or necessary to reconvey to the Borrower such of the Secured Collateral (including any amount of the Assigned Revenue and, where applicable, the beneficial interest held by the Trustee under the S/C Contracts Performance Securities and the Jetty Contract Performance Bond) in the possession of the Trustee as shall not have been sold or otherwise applied pursuant to the terms hereof. Notwithstanding the foregoing, all indemnity obligations of the Borrower to the Secured Parties under the Financing Documents shall survive such termination.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date hereof on the signature pages of the Omnibus Agreement, of which this Agreement constitutes Volume 7.

SCHEDULE 1
to Assignment and
Security Agreement

PROJECT ACCOUNTS

(BORROWER’S ACCOUNTS)

………

(OFFSHORE ACCOUNTS)

………

(ONSHORE ACCOUNTS)

………

SCHEDULE 2
to Assignment and
Security Agreement

CONTRACTS

………

SCHEDULE 3
to Assignment and
Security Agreement

FILINGS, REGISTRATIONS, ETC.
RELATING TO ASSIGNED REVENUES

None

SCHEDULE 4
to Assignment and
Security Agreement

UCC FILING LOCATIONS

………

OTHER CONSENTS, FILINGS, REGISTRATIONS, ETC.

None

OFFICE LOCATIONS FOR [AAA]

………

NAMES HELD IN THE LAST [•] YEARS

None

SCHEDULE 5
to Assignment and
Security Agreement

INTELLECTUAL PROPERTY

The tradename “[AAA]”

SCHEDULE 6
to Assignment and
Security Agreement

PROMISSORY NOTES AND OTHER INSTRUMENTS

The S/C Contracts Performance Securities

The Jetty Contract Performance Bond

2_12 Assignment and Security Agreement.doc

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