Project Financing Agreements; Department’s Rights and Protections. (a) From time to time during the Term, the Developer has the right, at its sole cost and expense, to pledge, hypothecate or assign the Gross Revenues and the Developer’s Interest as security for any Developer Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the Developer, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Project Financing Agreements, being referred to in this Agreement as a “Financing Assignment”): (i) no Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded by a Financing Assignment, except that Lenders of Developer Debt may be Persons other than Institutional Lenders so long as any Financing Assignment securing such Developer Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securities; (ii) no Financing Assignment will encumber less than the entire Developer’s Interest; provided, that the foregoing does not preclude subordinate Financing Assignments; (iii) the Developer is strictly prohibited from pledging or encumbering the Developer’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will secure any indebtedness, (A) that is issued by any Person other than the Developer, any special purpose company that directly or indirectly owns the Developer and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developer, or the PABs Issuer or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv); (iv) no Financing Assignment or other instrument purporting to mortgage, pledge, encumber, or create a Lien on or against the Developer’s Interest will extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder or any part thereof; (v) any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7; (vi) the Department will not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment; (vii) each Financing Assignment will require that if the Developer is in default under the Developer Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the Developer, then the Collateral Agent will also give concurrent notice of such default to the Department. Each Financing Assignment also will require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment; (viii) no Financing Assignment will grant to a Lender any right to apply funds deposited with the Depositary in accordance with Section 17.07, except for the express purposes for which the reserve or deposit is established; (ix) each Financing Assignment will provide that the Developer may, without condition or qualification, issue additional Developer Debt, secured by the Developer’s Interest, for the limited purpose of funding Safety Compliance Orders provided, that (A) the Lenders may limit such additional Developer Debt if other funds are then available to the Developer for the purpose of funding any such Safety Compliance Orders, and (B) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order; (x) each Financing Assignment will expressly state that the Collateral Agent and the Lenders will not name or join any State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent (A) joining the Department as a necessary party is required to give the court jurisdiction over the dispute with the Developer and to enforce any Lender’s remedies against the Developer and (B) the complaint against the Department states no Claim against the Department for a Lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder, or any part thereof, or for any liability of the Department; (xi) each Financing Assignment will expressly state that neither the Lenders nor the Collateral Agent will seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7; provided, that the foregoing will not affect any rights or claims of a Lender as a successor to the Developer’s Interest by foreclosure or transfer in lieu of foreclosure; (xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Financing Assignment will expressly state that the Lenders and the Collateral Agent will respond to any request from the Department or the Developer for consent to a modification or amendment of this Agreement within a reasonable period of time; (xiii) each Financing Assignment will expressly state, or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that Developer Debt may be prepaid in whole or in part without penalty or premium at or following early termination of this Agreement; provided, however, that (A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of the termination provision that is the basis for the early termination of this Agreement; and (xiv) each Financing Assignment may only secure Developer Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewith, (B) paying reasonable fees, development costs and expenses incurred by the Developer in connection with the execution of this Agreement and the Initial Project Financing Agreements and not otherwise paid, (C) making Distributions, but only from the proceeds of any Refinancing permitted pursuant to Section 7.08, and (D) any Refinancing of pre- existing Developer Debt that conforms to the provisions of this Section 7.07(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s fees, but excluding any amounts paid to Affiliates). (b) The Department will have no obligation to join in, execute or guarantee any Financing Assignment. (c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer will remain liable to the Department for the payment of all sums owing to the Department pursuant to this Agreement and the performance and observance of all of the Developer’s covenants and obligations pursuant to this Agreement.
Appears in 3 contracts
Samples: Comprehensive Agreement, Comprehensive Agreement, Comprehensive Agreement
Project Financing Agreements; Department’s Rights and Protections. (a) The Concessionaire has entered into concurrently with the execution of this Agreement, or intends to enter into in connection with this Agreement, the Initial Project Financing Agreements listed on Exhibit H. On or within 30 days after the Closing Date the Concessionaire Parties and the Department shall be reimbursed, from equity provided by members of the Concessionaire, for all documented fees, costs and expenses incurred on or after August 25, 2004, in connection with the investigation, development, negotiation and closing of the transactions described herein and in the Project Financing Agreements; provided, however, that all such fees, costs and expenses shall be permissible for reimbursement in accordance with requirements of State and federal Law applicable to reimbursement of such types of fees, costs and expenses and if, upon subsequent audit in accordance with Section 18.07, any such reimbursed fees, costs and expenses are determined not to meet such State or federal reimbursement requirements then such non-qualifying amounts shall be repaid by the party having received such reimbursement, within 30 days of receipt by such party of written notification of such non-qualification, to the trustee under the Master Indenture of Trust with the PABs Issuer dated as of December 1, 2007, or any successor trustee thereunder, and shall be deposited to the Construction Fund to be applied to other qualified costs of the Project.
(ab) From time to time during the Termterm of this Agreement, the Developer Concessionaire has the right, at its sole cost and expense, to pledge, sell or otherwise transfer solely the Toll Revenues available for Distribution in connection with a Permitted Securitization or to pledge, hypothecate or assign the Gross Revenues and the DeveloperConcessionaire’s Interest as security for any Developer Concessionaire Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the DeveloperConcessionaire, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Project Financing Agreements, being referred to in this Agreement as a “Financing Assignment”):Assignment”):
(i) no No Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded accorded by a Financing Assignment, except that Lenders lenders of Developer Concessionaire Debt may be Persons other than Institutional Lenders so long as any Financing Assignment Agreement securing such Developer Concessionaire Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities PABs may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securitiesPABs;
(ii) Subject to Section 6.02(b)(iv), no Financing Assignment will shall encumber less than the entire DeveloperConcessionaire’s Interest; provided, that the foregoing does not preclude preclude
(A) subordinate Financing AssignmentsAssignments and (B) Permitted Securitizations;
(iii) the Developer The Concessionaire is strictly prohibited from pledging or encumbering the DeveloperConcessionaire’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will shall secure any indebtedness, (A) that is issued by any Person other than the DeveloperConcessionaire, any special purpose company that directly or indirectly owns the Developer Concessionaire and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developercompany, or the PABs Issuer or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv);
(iv) no Financing Assignment or other instrument purporting to mortgageIssuer, pledge, encumber, or create a Lien on or against the Developer’s Interest will extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder or any part thereof;
(v) any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7;
(vi) the Department will not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment;
(vii) each Financing Assignment will require that if the Developer is in default under the Developer Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the Developer, then the Collateral Agent will also give concurrent notice of such default to the Department. Each Financing Assignment also will require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment;
(viii) no Financing Assignment will grant to a Lender any right to apply funds deposited with the Depositary in accordance with Section 17.07, except for the express purposes for which the reserve or deposit is established;
(ix) each Financing Assignment will provide that the Developer may, without condition or qualification, issue additional Developer Debt, secured by the Developer’s Interest, for the limited purpose of funding Safety Compliance Orders provided, that (A) the Lenders may limit such additional Developer Debt if other funds are then available to the Developer for the purpose of funding any such Safety Compliance Orders, and (B) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order;
(x) each Financing Assignment will expressly state that the Collateral Agent and the Lenders will not name or join any State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent
(A) joining the Department as a necessary party is required to give the court jurisdiction over the dispute with the Developer and to enforce any Lender’s remedies against the Developer and (B) the complaint against the Department states no Claim against the Department for a Lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder, or any part thereof, or for any liability of the Department;
(xi) each Financing Assignment will expressly state that neither the Lenders nor the Collateral Agent will seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7; provided, that the foregoing will not affect any rights or claims of a Lender as a successor to the Developer’s Interest by foreclosure or transfer in lieu of foreclosure;
(xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Financing Assignment will expressly state that the Lenders and the Collateral Agent will respond to any request from the Department or the Developer for consent to a modification or amendment of this Agreement within a reasonable period of time;
(xiii) each Financing Assignment will expressly state, or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that Developer Debt may be prepaid in whole or in part without penalty or premium at or following early termination of this Agreement; provided, however, that
(A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of the termination provision that is the basis for the early termination of this Agreement; and
(xiv) each Financing Assignment may only secure Developer Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewith, (B) paying reasonable fees, development costs and expenses incurred by the Developer in connection with the execution of this Agreement and the Initial Project Financing Agreements and not otherwise paid, (C) making Distributions, but only from the proceeds of any Refinancing permitted pursuant to Section 7.08, and (D) any Refinancing of pre- existing Developer Debt that conforms to the provisions of this Section 7.07(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s fees, but excluding any amounts paid to Affiliates).
(b) The Department will have no obligation to join in, execute or guarantee any Financing Assignment.
(c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer will remain liable to the Department for the payment of all sums owing to the Department pursuant to this Agreement and the performance and observance of all of the Developer’s covenants and obligations pursuant to this Agreement.or
Appears in 3 contracts
Samples: Comprehensive Agreement, Comprehensive Agreement, Comprehensive Agreement
Project Financing Agreements; Department’s Rights and Protections.
(a) From time to time during the Term, the Developer Concessionaire has the right, at its sole cost and expense, to pledge, hypothecate hypothecate, or assign the Gross Revenues and the DeveloperConcessionaire’s Interest as security for any Developer Concessionaire Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the DeveloperConcessionaire, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Project Financing Agreements, the 395 Project Financing Agreements, and the Xxxx Ex Project Financing Agreements being referred to in this Agreement as a “Financing Assignment”):Assignment”):
(i) no Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives representatives, and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded by a Financing Assignment, except that Lenders of Developer Concessionaire Debt may be Persons other than Institutional Lenders so long as any Financing Assignment securing such Developer Concessionaire Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities PABs may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securitiesPABs and any VTIB assistance;
(ii) no Financing Assignment will encumber less than the entire DeveloperConcessionaire’s Interest; provided, that the foregoing does not preclude subordinate Financing Assignments;
(iii) the Developer Concessionaire is strictly prohibited from pledging or encumbering the DeveloperConcessionaire’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will secure any indebtedness, (A) that is issued by any Person other than the DeveloperConcessionaire, any special purpose company that directly or indirectly owns the Developer Concessionaire and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developercompany, or the PABs Issuer or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv);
(iv) no Financing Assignment or other instrument purporting to mortgage, pledge, encumber, or create a Lien on or against the Developer’s Interest will extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder or any part thereof;
(v) any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7;
(vi) the Department will not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment;
(vii) each Financing Assignment will require that if the Developer is in default under the Developer Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the Developer, then the Collateral Agent will also give concurrent notice of such default to the Department. Each Financing Assignment also will require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment;
(viii) no Financing Assignment will grant to a Lender any right to apply funds deposited with the Depositary in accordance with Section 17.07, except for the express purposes for which the reserve or deposit is established;
(ix) each Financing Assignment will provide that the Developer may, without condition or qualification, issue additional Developer Debt, secured by the Developer’s Interest, for the limited purpose of funding Safety Compliance Orders provided, that (A) the Lenders may limit such additional Developer Debt if other funds are then available to the Developer for the purpose of funding any such Safety Compliance Orders, and (B) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order;
(x) each Financing Assignment will expressly state that the Collateral Agent and the Lenders will not name or join any State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent
(A) joining the Department as a necessary party is required to give the court jurisdiction over the dispute with the Developer and to enforce any Lender’s remedies against the Developer and (B) the complaint against the Department states no Claim against the Department for a Lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder, or any part thereof, or for any liability of the Department;
(xi) each Financing Assignment will expressly state that neither the Lenders nor the Collateral Agent will seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7; provided, that the foregoing will not affect any rights or claims of a Lender as a successor to the Developer’s Interest by foreclosure or transfer in lieu of foreclosure;
(xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Financing Assignment will expressly state that the Lenders and the Collateral Agent will respond to any request from the Department or the Developer for consent to a modification or amendment of this Agreement within a reasonable period of time;
(xiii) each Financing Assignment will expressly state, or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that Developer Debt may be prepaid in whole or in part without penalty or premium at or following early termination of this Agreement; provided, however, that
(A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of the termination provision that is the basis for the early termination of this Agreement; and
(xiv) each Financing Assignment may only secure Developer Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewith, (B) paying reasonable fees, development costs and expenses incurred by the Developer in connection with the execution of this Agreement and the Initial Project Financing Agreements and not otherwise paid, (C) making Distributions, but only from the proceeds of any Refinancing permitted pursuant to Section 7.08, and (D) any Refinancing of pre- existing Developer Debt that conforms to the provisions of this Section 7.07(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s fees, but excluding any amounts paid to Affiliates).
(b) The Department will have no obligation to join in, execute or guarantee any Financing Assignment.
(c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer will remain liable to the Department for the payment of all sums owing to the Department pursuant to this Agreement and the performance and observance of all of the Developer’s covenants and obligations pursuant to this Agreement.or
Appears in 2 contracts
Project Financing Agreements; Department’s Rights and Protections.
(a) From time to time during the Term, the Developer Concessionaire has the right, at its sole cost and expense, to pledge, hypothecate or assign the Gross Revenues and the DeveloperConcessionaire’s Interest (but not less than the entire Concessionaire’s Interest) as security for any Developer Concessionaire Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the DeveloperConcessionaire, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Project Financing Agreements, being referred to in this Agreement as a “Financing Assignment”):Assignment”):
(i) no No Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded accorded by a Financing Assignment, except that Lenders lenders of Developer Concessionaire Debt may be Persons other than Institutional Lenders so long as any Financing Assignment securing such Developer Concessionaire Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities PABs may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securitiesPABs;
(ii) no No Financing Assignment will shall encumber less than the entire DeveloperConcessionaire’s Interest; provided, that the foregoing does not preclude subordinate Financing Assignments;
(iii) the Developer The Concessionaire is strictly prohibited from pledging or encumbering the DeveloperConcessionaire’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will shall secure any indebtedness, (A) that is issued by any Person other than the DeveloperConcessionaire, any special purpose company that directly or indirectly owns the Developer Concessionaire and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developercompany, or the PABs Issuer Issuer, or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv)7.03(a)(xiv) below;
(iv) no No Financing Assignment or other instrument purporting to mortgage, pledge, encumber, or create a Lien on or against the DeveloperConcessionaire’s Interest will shall extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, Project or the Project Right of Way or any interest of Way. the Department hereunder Department’s interests hereunder, or any part thereof;
(v) any Any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7;
(vi) the The Department will shall not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 Sections 7.04, 7.05, 7.06 and 7.08 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer Concessionaire and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment;
(vii) each Each Financing Assignment will shall require that if the Developer Concessionaire is in default under the Developer Concessionaire Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the DeveloperConcessionaire, then the Collateral Agent will shall also give concurrent notice of such default to the Department. Each Financing Assignment also will shall require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer Concessionaire or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment;
(viii) no No Financing Assignment will shall grant to a Lender any right to apply funds deposited with in the Depositary in accordance with Section 17.07Major Maintenance Reserve Fund, the Handback Reserve Fund or any other reserve contemplated by this Agreement, except for to the express purposes for which the reserve or deposit is established;
(ix) each Each Financing Assignment will shall provide that the Developer Concessionaire may, without condition or qualification, issue additional Developer Concessionaire Debt, secured by the DeveloperConcessionaire’s Interest, for the limited purpose of funding Safety Compliance Orders provided, that (A) the Lenders may limit such additional Developer Debt if other funds are then available to the Developer for the purpose of funding any such Safety Compliance Orders, and (B) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order;
(x) each Each Financing Assignment will shall expressly state that the Collateral Agent and the Lenders will shall not name or join any the Department, the CTB or the State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent
: (A) joining the Department is required as a necessary party is required in order to give the court jurisdiction over the dispute with the Developer Concessionaire and to enforce any Lender’s remedies against the Developer Concessionaire and (B) the complaint against the Department states no Claim against the Department for a Lien lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, Project or the Project Right of Way or any interest of Way, the Department Department’s interests hereunder, or any part thereof, or for any liability of the Department;
(xi) each Each Financing Assignment will shall expressly state that neither the Lenders nor the Collateral Agent will shall seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Concessionaire Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7Sections 7.04, 7.05, 7.06 and 7.08; provided, that the foregoing will shall not affect any rights or claims Claims of a Lender as a successor to the DeveloperConcessionaire’s Interest by foreclosure or transfer in lieu of foreclosure;
(xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Each Financing Assignment will shall expressly state that the Lenders and the Collateral Agent will shall respond to any request from the Department or the Developer Concessionaire for consent to a modification or amendment of this Agreement within a reasonable period of time;
(xiii) each No Financing Assignment will expressly state, may secure Concessionaire Debt that prohibits prepayment or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that Developer Debt may be prepaid in whole or in part without penalty or premium at or following early termination of this Agreementdefeasance; provided, however, that
(A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price that the foregoing does not preclude imposition of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of the termination provision that is the basis for the early termination of this Agreement; andin order to prepay or defease;
(xiv) each Each Financing Assignment may only secure Developer Concessionaire Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing developing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewithEnhancements, (B) paying reasonable fees, development costs and expenses incurred by the Developer in connection Concessionaire with the execution closing of this Agreement and the Initial Project Financing Agreements and not otherwise paidreimbursed, (C) making Distributions, but only from the proceeds of any Refinancing Refinancings permitted pursuant to Section 7.087.07, and (D) any Refinancing of pre- pre-existing Developer Concessionaire Debt that conforms to the provisions of this Section 7.07(a7.03(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s lender fees, but excluding any amounts paid to Affiliates).;
(xv) Each Financing Assignment shall expressly permit the Department to use and apply the Contingency Amount, as well as funds in the Major Maintenance Reserve Fund and the Handback Reserve Fund, without condition or qualification, for the purposes permitted by this Agreement; and
(xvi) In the case of a Refinancing, the Concessionaire’s right is subject to Section
(b) The Department will shall have no obligation to join in, execute or guarantee any Financing Assignment.
(c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer will Concessionaire shall remain liable to the Department for the payment of all sums owing to the Department pursuant to under this Agreement and the other Project Agreements and the performance and observance of all of the DeveloperConcessionaire’s covenants and obligations under this Agreement and the other Project Agreements.
(d) No Lender or Collateral Agent shall, by virtue of its Financing Assignment, acquire any greater rights to or interest in the Project or Gross Revenues than the Concessionaire has at any applicable time under this Agreement, other than the provisions in Sections 7.04, 7.05, 7.06 and 7.08 for the specific protection of the Lenders and the Collateral Agent. The Lender and the Collateral Agent shall acknowledge and agree in the Financing Assignment that they shall have no further lien or security interest in Gross Revenues otherwise established pursuant to the Financing Assignment following the termination or expiration of the Term (including termination as a consequence of Concessionaire Default), and any such lien or security interest shall be deemed automatically extinguished at such time.
(e) All rights acquired by the Lenders or the Collateral Agent under any Financing Assignment shall be subject to the provisions of this AgreementAgreement and any Development Contract and to the rights of the Department hereunder and thereunder.
(f) No Financing Assignment shall be binding upon the Department in the enforcement of its rights and remedies as provided herein and by Law, unless and until the Department has received a copy (certified as true and correct by the Collateral Agent or by the administrative agent identified in the Initial Project Financing Agreements) of the original thereof and a copy of a specimen bond, promissory note or other evidence of indebtedness (certified as true and correct by the Collateral Agent or by the administrative agent identified in the Initial Project Financing Agreements) secured by such Financing Assignment, together with written notice of the address of the Collateral Agent to which notices may be sent. If applicable, after the recordation or filing thereof, the Collateral Agent shall provide to the Department a copy of the Financing Assignment bearing the date and instrument number or book and page of such recordation or filing. In the event of an assignment of any such Financing Assignment by the Collateral Agent, such assignment shall not be binding upon the Department unless and until the Department has received a certified copy thereof, together with written notice of the assignee thereof to which notices may be sent (and the assignee shall, if such assignment is required to be recorded, after such recordation deliver to the Department a copy thereof bearing the date and instrument number or book and page of such recordation).
Appears in 1 contract
Samples: Comprehensive Agreement
Project Financing Agreements; Department’s Rights and Protections.
(a) From time to time during the Term, the Developer has the right, at its sole cost and expense, to pledge, hypothecate or assign the Gross Revenues and the Developer’s Interest as security for any Developer Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the Developer, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Project Financing Agreements, being referred to in this Agreement as a “Financing Assignment”):Assignment”):
(i) no Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded by a Financing Assignment, except that Lenders of Developer Debt may be Persons other than Institutional Lenders so long as any Financing Assignment securing such Developer Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities PABs may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securitiesPABs;
(ii) no Financing Assignment will encumber less than the entire Developer’s Interest; provided, that the foregoing does not preclude subordinate Financing Assignments;
(iii) the Developer is strictly prohibited from pledging or encumbering the Developer’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will secure any indebtedness, (A) that is issued by any Person other than the Developer, any special purpose company that directly or indirectly owns the Developer and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developercompany, or the PABs Issuer or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv);
(iv) no Financing Assignment or other instrument purporting to mortgage, pledge, encumber, or create a Lien on or against the Developer’s Interest will extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder or any part thereof;
(v) any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7;
(vi) the Department will not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment;
(vii) each Financing Assignment will require that if the Developer is in default under the Developer Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the Developer, then the Collateral Agent will also give concurrent notice of such default to the Department. Each Financing Assignment also will require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment;
(viii) no Financing Assignment will grant to a Lender any right to apply funds deposited with the Depositary in accordance with Section 17.07, except for the express purposes for which the reserve or deposit is established;
(ix) each Financing Assignment will provide that the Developer may, without condition or qualification, issue additional Developer Debt, secured by the Developer’s Interest, for the limited purpose of funding Safety Compliance Orders provided, that (A) the Lenders may limit such additional Developer Debt if other funds are then available to the Developer for the purpose of funding any such Safety Compliance Orders, and (B) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order;
(x) each Financing Assignment will expressly state that the Collateral Agent and the Lenders will not name or join any State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent
(A) joining the Department as a necessary party is required to give the court jurisdiction over the dispute with the Developer and to enforce any Lender’s remedies against the Developer and (B) the complaint against the Department states no Claim against the Department for a Lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder, or any part thereof, or for any liability of the Department;
(xi) each Financing Assignment will expressly state that neither the Lenders nor the Collateral Agent will seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7; provided, that the foregoing will not affect any rights or claims of a Lender as a successor to the Developer’s Interest by foreclosure or transfer in lieu of foreclosure;
(xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Financing Assignment will expressly state that the Lenders and the Collateral Agent will respond to any request from the Department or the Developer for consent to a modification or amendment of this Agreement within a reasonable period of time;
(xiii) each no Financing Assignment will expressly state, or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that may secure Developer Debt may be prepaid in whole that prohibits prepayment or in part without penalty or premium at or following early termination of this Agreementdefeasance; provided, however, that
(A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price that the foregoing does not preclude imposition of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of in order to prepay or defease or any requirement that a prepayment or defeasance be made on the termination provision that is the basis for the early termination of this Agreementnext succeeding payment date; and
(xiv) each Financing Assignment may only secure Developer Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewith, (B) paying reasonable fees, development costs and expenses incurred by the Developer in connection with the execution of this Agreement and the Initial Project Financing Agreements and not otherwise paid, (C) making Distributions, but only from the proceeds of any Refinancing permitted pursuant to Section 7.08, and (D) any Refinancing of pre- existing Developer Debt that conforms to the provisions of this Section 7.07(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s fees, but excluding any amounts paid to Affiliates).
(b) The Department will have no obligation to join in, execute or guarantee any Financing Assignment.
(c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer will remain liable to the Department for the payment of all sums owing to the Department pursuant to this Agreement and the performance and observance of all of the Developer’s covenants and obligations pursuant to this Agreement.
(d) No Lender or Collateral Agent will, by virtue of its Financing Assignment, acquire any greater rights to or interest in the Project or Gross Revenues than the Developer has at any applicable time pursuant to this Agreement, other than the provisions set forth in this Article 7 for the specific protection of the Lenders and the Collateral Agent.
(e) All rights acquired by the Lenders or the Collateral Agent under any Financing Assignment will be subject to the provisions of this Agreement and any Development Contract and to the rights of the Department hereunder and thereunder.
(f) No Financing Assignment will be binding upon the Department in the enforcement of its rights and remedies as provided herein and by Law, unless and until the Department has received a copy (certified as true and correct by the Collateral Agent or by the administrative agent identified in the Initial Project Financing Agreements) of the original thereof and a copy of a specimen bond, promissory note or other evidence of indebtedness (certified as true and correct by the Collateral Agent or by the administrative agent identified in the Initial Project Financing Agreements) secured by such Financing Assignment, together with written notice of the address of the Collateral Agent to which notices may be sent. If applicable, after the recordation or filing thereof, the Collateral Agent will provide to the Department a copy of the Financing Assignment bearing the date and instrument number or book and page of such recordation or filing. In the event of an assignment of any such Financing Assignment by the Collateral Agent, such assignment will not be binding upon the Department unless and until the Department has received a certified copy thereof, together with written notice of the assignee thereof to which notices may be sent (and the assignee will, if such assignment is required to be recorded, after such recordation deliver to the Department a copy thereof bearing the date and instrument number or book and page of such recordation).
(g) No Financing Assignment, including relating to any Refinancing, will be valid or effective, and no Lender will be entitled to the rights, benefits and protections of this Article 7, unless the Financing Assignment complies with this Section 7.07. If the Department has actual knowledge that any Financing Assignment or amendment thereto has been entered into and does not comply with this Section 7.07, then the Department will deliver a notice to the Collateral Agent, with a copy to the Developer. Unless and until such non-compliance is remedied, the Financing Assignment will be neither valid nor effective, and the Lenders thereunder will be entitled to none of the rights, benefits and protections of this Article 7.
(h) Each Financing Assignment will make the Department a third-party beneficiary to any provision thereof that creates or protects the rights and priorities of the Department to receive payments thereunder as provided for in this Agreement, including Section 5.05.
(i) The Developer will cause all Project Financing Agreements to provide that amounts described in clauses (a), (c) and (d) of the definition of “Gross Revenues” must be deposited in one or more accounts held by the Collateral Agent or its agent under an account control or similar agreement pending disbursement; provided, that such funds may be invested in investments permitted by the Project Financing Agreements pending disbursement; and provided further that the Developer is not precluded from transferring such amounts to a separate account to pay Operating Costs as permitted in the Project Financing Agreements.
Appears in 1 contract
Samples: Comprehensive Agreement
Project Financing Agreements; Department’s Rights and Protections.
(a) From time to time during the Term, the Developer Concessionaire has the right, at its sole cost and expense, to pledge, hypothecate or assign the Gross Revenues and the DeveloperConcessionaire’s Interest as security for any Developer Concessionaire Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the DeveloperConcessionaire, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Project Financing Agreements, being referred to in this Agreement as a “Financing Assignment”):Assignment”):
(i) no Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded by a Financing Assignment, except that Lenders lenders of Developer Concessionaire Debt may be Persons other than Institutional Lenders so long as any Financing Assignment securing such Developer Concessionaire Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities PABs may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securitiesPABs;
(ii) no Financing Assignment will encumber less than the entire DeveloperConcessionaire’s Interest; provided, that the foregoing does not preclude subordinate Financing Assignments;
(iii) the Developer Concessionaire is strictly prohibited from pledging or encumbering the DeveloperConcessionaire’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will secure any indebtedness, (A) that is issued by any Person other than the DeveloperConcessionaire, any special purpose company that directly or indirectly owns the Developer Concessionaire and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developercompany, or the PABs Issuer Issuer, or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv7.04(a)(xiv);
(iv) no Financing Assignment or other instrument purporting to mortgage, pledge, encumber, or create a Lien on or against the DeveloperConcessionaire’s Interest will extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder or any part thereof;
(v) any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7;
(vi) the Department will not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer Concessionaire and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment;
(vii) each Financing Assignment will require that if the Developer Concessionaire is in default under the Developer Concessionaire Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the DeveloperConcessionaire, then the Collateral Agent will also give concurrent notice of such default to the Department. Each Financing Assignment also will require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer Concessionaire or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment;
(viii) no Financing Assignment will grant to a Lender any right to apply funds in the Handback Reserve Fund or deposited with the Depositary in accordance with Section 17.07, except for the express purposes for which the reserve or deposit is established;
(ix) each Financing Assignment will provide that the Developer Concessionaire may, without condition or qualification, issue additional Developer Concessionaire Debt, secured by the DeveloperConcessionaire’s Interest, for the limited purpose of funding Safety Compliance Orders Orders; provided, that (A1) the Lenders may limit such additional Developer Concessionaire Debt if other funds are then available to the Developer Concessionaire for the purpose of funding any such Safety Compliance Orders, and (B2) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order;
(x) each Financing Assignment will expressly state that the Collateral Agent and the Lenders will not name or join any State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent
extent (A) joining the Department as a necessary party is required to give the court jurisdiction over the dispute with the Developer Concessionaire and to enforce any Lender’s remedies against the Developer Concessionaire and (B) the complaint against the Department states no Claim against the Department for a Lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder, or any part thereof, or for any liability of the Department;
(xi) each Financing Assignment will expressly state that neither the Lenders nor the Collateral Agent will seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Concessionaire Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7; provided, that the foregoing will not affect any rights or claims of a Lender as a successor to the DeveloperConcessionaire’s Interest by foreclosure or transfer in lieu of foreclosure;
(xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Financing Assignment will expressly state that the Lenders and the Collateral Agent will respond to any request from the Department or the Developer Concessionaire for consent to a modification or amendment of this Agreement within a reasonable period of time;
(xiii) each no Financing Assignment will expressly state, may secure Concessionaire Debt that prohibits prepayment or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that Developer Debt may be prepaid in whole or in part without penalty or premium at or following early termination of this Agreementdefeasance; provided, however, that
(A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price that the foregoing does not preclude imposition of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of the termination provision that is the basis for the early termination of this Agreementin order to prepay or defease; and
(xiv) each Financing Assignment may only secure Developer Concessionaire Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewith, (B) paying reasonable fees, development costs and expenses incurred by the Developer Concessionaire in connection with the execution of this Agreement and the Initial Project Financing Agreements and not otherwise paidreimbursed, (C) making Distributions, but only from the proceeds of any Refinancing permitted pursuant to Section 7.087.05, and (D) any Refinancing of pre- pre-existing Developer Concessionaire Debt that conforms to the provisions of this Section 7.07(a7.04(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s fees, but excluding any amounts paid to Affiliates).
(b) The Department will have no obligation to join in, execute or guarantee any Financing Assignment.
(c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer Concessionaire will remain liable to the Department for the payment of all sums owing to the Department pursuant to this Agreement and the performance and observance of all of the DeveloperConcessionaire’s covenants and obligations pursuant to this Agreement.
(d) No Lender or Collateral Agent will, by virtue of its Financing Assignment, acquire any greater rights to or interest in the Project or Gross Revenues than the Concessionaire has at any applicable time pursuant to this Agreement, other than the provisions set forth in this Article 7 for the specific protection of the Lenders and the Collateral Agent.
(e) All rights acquired by the Lenders or the Collateral Agent under any Financing Assignment will be subject to the provisions of this Agreement and any Development Contract and to the rights of the Department hereunder and thereunder.
(f) No Financing Assignment will be binding upon the Department in the enforcement of its rights and remedies as provided herein and by Law, unless and until the Department has received a copy (certified as true and correct by the Collateral Agent or by the administrative agent identified in the Initial Project Financing Agreements) of the original thereof and a copy of a specimen bond, promissory note or other evidence of indebtedness (certified as true and correct by the Collateral Agent or by the administrative agent identified in the Initial Project Financing Agreements) secured by such Financing Assignment, together with written notice of the address of the Collateral Agent to which notices may be sent. If applicable, after the recordation or filing thereof, the Collateral Agent will provide to the Department a copy of the Financing Assignment bearing the date and instrument number or book and page of such recordation or filing. In the event of an assignment of any such Financing Assignment by the Collateral Agent, such assignment will not be binding upon the Department unless and until the Department has received a certified copy thereof, together with written notice of the assignee thereof to which notices may be sent (and the assignee will, if such assignment is required to be recorded, after such recordation deliver to the Department a copy thereof bearing the date and instrument number or book and page of such recordation).
(g) No Financing Assignment, including relating to any Refinancing, will be valid or effective, and no Lender will be entitled to the rights, benefits and protections of this Article 7, unless the Financing Assignment complies with this Section 7.04. If the Department has actual knowledge that any Financing Assignment or amendment thereto has been entered into and does not comply with this Section 7.04, then the Department will deliver a notice to the Collateral Agent, with a copy to the Concessionaire. Unless and until such non-compliance is remedied, the Financing Assignment will be neither valid nor effective, and the Lenders thereunder will be entitled to none of the rights, benefits, and protections of this Article 7.
(h) Each Financing Assignment will make the Department a third-party beneficiary to any provision thereof that creates or protects the rights and priorities of the Department to receive payments thereunder as provided for in this Agreement, including Section 5.06.
Appears in 1 contract
Samples: Comprehensive Agreement
Project Financing Agreements; Department’s Rights and Protections.
(a) From time to time during the Term, the Developer has the right, at its sole cost and expense, to pledge, hypothecate or assign the Gross Revenues and the Developer’s Interest as security for any Developer Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the Developer, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Initial Project Financing Agreements, being referred to in this Agreement as a “Financing Assignment”):Assignment”):
(i) no Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded by a Financing Assignment, except that Lenders of Developer Debt may be Persons other than Institutional Lenders so long as any Financing Assignment securing such Developer Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securities;
(ii) no Financing Assignment will encumber less than the entire Developer’s Interest; provided, that the foregoing does not preclude subordinate Financing Assignments;
(iii) the Developer is strictly prohibited from pledging or encumbering the Developer’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will secure any indebtedness, (A) that is issued by any Person other than the Developer, any special purpose company that directly or indirectly owns the Developer and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developer, or the PABs Issuer or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv);
(iv) no Financing Assignment or other instrument purporting to mortgage, pledge, encumber, or create a Lien on or against the Developer’s Interest will extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder or any part thereof;
(v) any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7;
(vi) the Department will not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment;
(vii) each Financing Assignment will require that if the Developer is in default under the Developer Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the Developer, then the Collateral Agent will also give concurrent notice of such default to the Department. Each Financing Assignment also will require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment;
(viii) no Financing Assignment will grant to a Lender any right to apply funds deposited with the Depositary in accordance with Section 17.07, except for the express purposes for which the reserve or deposit is established;
(ix) each Financing Assignment will provide that the Developer may, without condition or qualification, issue additional Developer Debt, secured by the Developer’s Interest, for the limited purpose of funding Safety Compliance Orders provided, that (A) the Lenders may limit such additional Developer Debt if other funds are then available to the Developer for the purpose of funding any such Safety Compliance Orders, and (B) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order;
(x) each Financing Assignment will expressly state that the Collateral Agent and the Lenders will not name or join any State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent
(A) joining the Department as a necessary party is required to give the court jurisdiction over the dispute with the Developer and to enforce any Lender’s remedies against the Developer and (B) the complaint against the Department states no Claim against the Department for a Lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder, or any part thereof, or for any liability of the Department;
(xi) each Financing Assignment will expressly state that neither the Lenders nor the Collateral Agent will seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7; provided, that the foregoing will not affect any rights or claims of a Lender as a successor to the Developer’s Interest by foreclosure or transfer in lieu of foreclosure;
(xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Financing Assignment will expressly state that the Lenders and the Collateral Agent will respond to any request from the Department or the Developer for consent to a modification or amendment of this Agreement within a reasonable period of time;
(xiii) each Financing Assignment will expressly state, or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that Developer Debt may be prepaid in whole or in part without penalty or premium at or following early termination of this Agreement; provided. Specifically, however, that
(A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of the termination provision that is the basis for the early termination of this Agreement20.07; and
(xiv) each Financing Assignment may only secure Developer Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewith, (B) paying reasonable fees, development costs and expenses incurred by the Developer in connection with the execution of this Agreement and the Initial Project Financing Agreements and not otherwise paid, (C) making Distributions, but only from the proceeds of any Refinancing permitted pursuant to Section 7.08, and (D) any Refinancing of pre- existing Developer Debt that conforms to the provisions of this Section 7.07(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s fees, but excluding any amounts paid to Affiliates).
(b) The Department will have no obligation to join in, execute or guarantee any Financing Assignment.
(c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer will remain liable to the Department for the payment of all sums owing to the Department pursuant to this Agreement and the performance and observance of all of the Developer’s covenants and obligations pursuant to this Agreement.therewith,
Appears in 1 contract
Samples: Comprehensive Agreement
Project Financing Agreements; Department’s Rights and Protections.
(a) From time to time during the Term, the Developer has the right, at its sole cost and expense, to pledge, hypothecate or assign the Gross Revenues and the Developer’s Interest as security for any Developer Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the Developer, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Project Financing Agreements, being referred to in this Agreement as a “Financing Assignment”):
(i) no Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded by a Financing Assignment, except that Lenders of Developer Debt may be Persons other than Institutional Lenders so long as any Financing Assignment securing such Developer Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securities;
(ii) no Financing Assignment will encumber less than the entire Developer’s Interest; provided, that the foregoing does not preclude subordinate Financing Assignments;
(iii) the Developer is strictly prohibited from pledging or encumbering the Developer’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will secure any indebtedness, (A) that is issued by any Person other than the Developer, any special purpose company that directly or indirectly owns the Developer and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developer, or the PABs Issuer or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv);
(iv) no Financing Assignment or other instrument purporting to mortgage, pledge, encumber, or create a Lien on or against the Developer’s Interest will extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder or any part thereof;
(v) any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7;
(vi) the Department will not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment;
(vii) each Financing Assignment will require that if the Developer is in default under the Developer Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the Developer, then the Collateral Agent will also give concurrent notice of such default to the Department. Each Financing Assignment also will require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment;
(viii) no Financing Assignment will grant to a Lender any right to apply funds deposited with the Depositary in accordance with Section 17.07, except for the express purposes for which the reserve or deposit is established;
(ix) each Financing Assignment will provide that the Developer may, without condition or qualification, issue additional Developer Debt, secured by the Developer’s Interest, for the limited purpose of funding Safety Compliance Orders provided, that (A) the Lenders may limit such additional Developer Debt if other funds are then available to the Developer for the purpose of funding any such Safety Compliance Orders, and (B) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order;
(x) each Financing Assignment will expressly state that the Collateral Agent and the Lenders will not name or join any State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent
(A) joining the Department as a necessary party is required to give the court jurisdiction over the dispute with the Developer and to enforce any LenderXxxxxx’s remedies against the Developer and (B) the complaint against the Department states no Claim against the Department for a Lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder, or any part thereof, or for any liability of the Department;
(xi) each Financing Assignment will expressly state that neither the Lenders nor the Collateral Agent will seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7; provided, that the foregoing will not affect any rights or claims of a Lender as a successor to the Developer’s Interest by foreclosure or transfer in lieu of foreclosure;
(xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Financing Assignment will expressly state that the Lenders and the Collateral Agent will respond to any request from the Department or the Developer for consent to a modification or amendment of this Agreement within a reasonable period of time;
(xiii) each Financing Assignment will expressly state, or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that Developer Debt may be prepaid in whole or in part without penalty or premium at or following early termination of this Agreement; provided, however, that
(A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of the termination provision that is the basis for the early termination of this Agreement; and
(xiv) each Financing Assignment may only secure Developer Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewith, (B) paying reasonable fees, development costs and expenses incurred by the Developer in connection with the execution of this Agreement and the Initial Project Financing Agreements and not otherwise paid, (C) making Distributions, but only from the proceeds of any Refinancing permitted pursuant to Section 7.08, and (D) any Refinancing of pre- existing Developer Debt that conforms to the provisions of this Section 7.07(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s fees, but excluding any amounts paid to Affiliates).
(b) The Department will have no obligation to join in, execute or guarantee any Financing Assignment.
(c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer will remain liable to the Department for the payment of all sums owing to the Department pursuant to this Agreement and the performance and observance of all of the Developer’s covenants and obligations pursuant to this Agreement.therewith,
Appears in 1 contract
Samples: Comprehensive Agreement
Project Financing Agreements; Department’s Rights and Protections.
(a) From time to time during the Term, the Developer Concessionaire has the right, at its sole cost and expense, to pledge, hypothecate or assign the Gross Revenues and the DeveloperConcessionaire’s Interest (but not less than the entire Concessionaire’s Interest) as security for any Developer Concessionaire Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the DeveloperConcessionaire, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Project Financing Agreements, being referred to in this Agreement as a “Financing Assignment”):Assignment”):
(i) no No Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded accorded by a Financing Assignment, except that Lenders lenders of Developer Concessionaire Debt may be Persons other than Institutional Lenders so long as any Financing Assignment securing such Developer Concessionaire Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities PABs may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securitiesPABs;
(ii) no No Financing Assignment will shall encumber less than the entire DeveloperConcessionaire’s Interest; provided, that the foregoing does not preclude subordinate Financing Assignments;
(iii) the Developer The Concessionaire is strictly prohibited from pledging or encumbering the DeveloperConcessionaire’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will shall secure any indebtedness, (A) that is issued by any Person other than the DeveloperConcessionaire, any special purpose company that directly or indirectly owns the Developer Concessionaire and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developercompany, or the PABs Issuer Issuer, or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv)7.03(a)(xiv) below;
(iv) no No Financing Assignment or other instrument purporting to mortgage, pledge, encumber, or create a Lien on or against the DeveloperConcessionaire’s Interest will shall extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, Project or the Project Right of Way or any interest of Way. the Department hereunder Department’s interests hereunder, or any part thereof;
(v) any Any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7;
(vi) the The Department will shall not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 Sections 7.04, 7.05, 7.06 and 7.08 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer Concessionaire and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment;
(vii) each Each Financing Assignment will shall require that if the Developer Concessionaire is in default under the Developer Concessionaire Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the DeveloperConcessionaire, then the Collateral Agent will shall also give concurrent notice of such default to the Department. Each Financing Assignment also will shall require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer Concessionaire or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment;
(viii) no No Financing Assignment will shall grant to a Lender any right to apply funds deposited with in the Depositary in accordance with Section 17.07Major Maintenance Reserve Fund, the Handback Reserve Fund or any other reserve contemplated by this Agreement, except for to the express purposes for which the reserve or deposit is established;
(ix) each Each Financing Assignment will shall provide that the Developer Concessionaire may, without condition or qualification, issue additional Developer Concessionaire Debt, secured by the DeveloperConcessionaire’s Interest, for the limited purpose of funding Safety Compliance Orders provided, that (A) the Lenders may limit such additional Developer Debt if other funds are then available to the Developer for the purpose of funding any such Safety Compliance Orders, and (B) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order;
(x) each Each Financing Assignment will shall expressly state that the Collateral Agent and the Lenders will shall not name or join any the Department, the CTB or the State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent
: (A) joining the Department is required as a necessary party is required in order to give the court jurisdiction over the dispute with the Developer Concessionaire and to enforce any Lender’s remedies against the Developer Concessionaire and (B) the complaint against the Department states no Claim against the Department for a Lien lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, Project or the Project Right of Way or any interest of Way, the Department Department’s interests hereunder, or any part thereof, or for any liability of the Department;
(xi) each Each Financing Assignment will shall expressly state that neither the Lenders nor the Collateral Agent will shall seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Concessionaire Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7Sections 7.04, 7.05, 7.06 and 7.08; provided, that the foregoing will shall not affect any rights or claims Claims of a Lender as a successor to the DeveloperConcessionaire’s Interest by foreclosure or transfer in lieu of foreclosure;
(xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Each Financing Assignment will shall expressly state that the Lenders and the Collateral Agent will shall respond to any request from the Department or the Developer Concessionaire for consent to a modification or amendment of this Agreement within a reasonable period of time;
(xiii) each No Financing Assignment will expressly state, may secure Concessionaire Debt that prohibits prepayment or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that Developer Debt may be prepaid in whole or in part without penalty or premium at or following early termination of this Agreementdefeasance; provided, however, that
(A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price that the foregoing does not preclude imposition of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of the termination provision that is the basis for the early termination of this Agreement; andin order to prepay or defease;
(xiv) each Each Financing Assignment may only secure Developer Concessionaire Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing developing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewithEnhancements, (B) paying reasonable fees, development costs and expenses incurred by the Developer in connection Concessionaire with the execution closing of this Agreement and the Initial Project Financing Agreements and not otherwise paidreimbursed, (C) making Distributions, but only from the proceeds of any Refinancing Refinancings permitted pursuant to Section 7.087.07, and (D) any Refinancing of pre- existing Developer Debt that conforms to the provisions of this Section 7.07(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s fees, but excluding any amounts paid to Affiliates).
(b) The Department will have no obligation to join in, execute or guarantee any Financing Assignment.
(c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer will remain liable to the Department for the payment of all sums owing to the Department pursuant to this Agreement and the performance and observance of all of the Developer’s covenants and obligations pursuant to this Agreement.and
Appears in 1 contract
Samples: Comprehensive Agreement
Project Financing Agreements; Department’s Rights and Protections.
(a) From time to time during the Term, the Developer has the right, at its sole cost and expense, to pledge, hypothecate or assign the Gross Revenues and the Developer’s Interest as security for any Developer Debt, such debt to be issued on such terms and conditions as may be acceptable to any Lender and the Developer, subject to the following terms and conditions (such pledge, hypothecation, assignment, or other security instrument, including the Initial Project Financing Agreements, being referred to in this Agreement as a “Financing Assignment”):
(i) no Person other than an Institutional Lender (other than with respect to indemnification and similar provisions provided for the benefit of the Collateral Agent and the agents, officers, representatives and/or employees of an Institutional Lender or the Collateral Agent) is entitled to the benefits and protections afforded by a Financing Assignment, except that Lenders of Developer Debt may be Persons other than Institutional Lenders so long as any Financing Assignment securing such Developer Debt made by such Person is held by an Institutional Lender acting as Collateral Agent, and debt securities may be issued, acquired and held by parties other than Institutional Lenders so long as an Institutional Lender acts as indenture trustee for the debt securities;
(ii) no Financing Assignment will encumber less than the entire Developer’s Interest; provided, that the foregoing does not preclude subordinate Financing Assignments;
(iii) the Developer is strictly prohibited from pledging or encumbering the Developer’s Interest, or any portion thereof, to secure any indebtedness, and no Financing Assignment will secure any indebtedness, (A) that is issued by any Person other than the Developer, any special purpose company that directly or indirectly owns the Developer and has no assets except as are directly related to the Project, or any special purpose subsidiary wholly owned by such company or the Developer, or the PABs Issuer or (B) the proceeds of which are used in whole or in part for any purpose other than the Project Purposes or any other purpose permitted in Section 7.07(a)(xiv);
(iv) no Financing Assignment or other instrument purporting to mortgage, pledge, encumber, or create a Lien on or against the Developer’s Interest will extend to or affect the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder or any part thereof;
(v) any number of permitted Financing Assignments may be outstanding at any one time, and any Financing Assignment permitted hereunder may secure two or more separate loans from two or more separate Lenders; provided, that each such loan and the Financing Assignment securing the same complies with the provisions of this Article 7;
(vi) the Department will not have any obligation to any Lender or Collateral Agent pursuant hereto, except as expressly set forth in this Article 7 or in any other instrument or agreement signed by the Department in favor of such Lender or Collateral Agent and unless the Developer and/or the Collateral Agent have notified the Department of the existence of such Financing Assignment;
(vii) each Financing Assignment will require that if the Developer is in default under the Developer Debt secured by the Financing Assignment or under the Financing Assignment and the Lender or Collateral Agent gives notice of such default to the Developer, then the Collateral Agent will also give concurrent notice of such default to the Department. Each Financing Assignment also will require that the Collateral Agent deliver to the Department, concurrently with delivery to the Developer or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Financing Assignment in connection with the exercise of remedies under the Financing Assignment;
(viii) no Financing Assignment will grant to a Lender any right to apply funds deposited with the Depositary in accordance with Section 17.07, except for the express purposes for which the reserve or deposit is established;
(ix) each Financing Assignment will provide that the Developer may, without condition or qualification, issue additional Developer Debt, secured by the Developer’s Interest, for the limited purpose of funding Safety Compliance Orders provided, that (A) the Lenders may limit such additional Developer Debt if other funds are then available to the Developer for the purpose of funding any such Safety Compliance Orders, and (B) the Lenders may impose reasonable, customary requirements as to performance and supervision of the work related to such Safety Compliance Order;
(x) each Financing Assignment will expressly state that the Collateral Agent and the Lenders will not name or join any State Party or any officer thereof in any legal proceeding seeking collection of the related debt or other obligations secured thereby or the foreclosure or other enforcement of the Financing Assignment except to the extent
(A) joining the Department as a necessary party is required to give the court jurisdiction over the dispute with the Developer and to enforce any Lender’s remedies against the Developer and (B) the complaint against the Department states no Claim against the Department for a Lien or security interest on, or to foreclose against, the Department’s fee simple title to or other property interest and estate in and to the Project, the Project Right of Way or any interest of the Department hereunder, or any part thereof, or for any liability of the Department;
(xi) each Financing Assignment will expressly state that neither the Lenders nor the Collateral Agent will seek any damages or other amounts from the Department due to the Department’s breach of this Agreement, whether for Developer Debt or any other amount, except damages for a violation by the Department of its express obligations to Lenders set forth in this Article 7; provided, that the foregoing will not affect any rights or claims of a Lender as a successor to the Developer’s Interest by foreclosure or transfer in lieu of foreclosure;
(xii) to the extent that such consent is required pursuant to the terms of such Financing Agreements, each Financing Assignment will expressly state that the Lenders and the Collateral Agent will respond to any request from the Department or the Developer for consent to a modification or amendment of this Agreement within a reasonable period of time;
(xiii) each Financing Assignment will expressly state, or incorporate a statement by reference to another Financing Assignment or Project Financing Agreement that states, that Developer Debt may be prepaid in whole or in part without penalty or premium at or following early termination of this Agreement; provided, however, that
(A) Developer Debt (other than bank debt) shall be subject to extraordinary mandatory redemption or prepayment, in whole or in part, at a redemption or prepayment price of par plus accrued and unpaid interest to the redemption or prepayment date, in connection with any extraordinary mandatory redemption arising pursuant to the provisions of Section 20.03, Section 20.05, Section 20.06 and Section 20.07 and (B) Developer Debt that is bank debt will be permitted to have imposed on it commercially reasonable Breakage Costs irrespective of the termination provision that is the basis for the early termination of this Agreement; and
(xiv) each Financing Assignment may only secure Developer Debt that satisfies the requirements set forth in Section 7.01 and the proceeds of which are used exclusively exclusively for the purpose of (A) developing, designing, permitting, constructing, financing, maintaining, repairing, rehabilitating, renewing or operating the Project or any Project Enhancements or establishing or maintaining reserves in connection therewith, (B) paying reasonable fees, development costs and expenses incurred by the Developer in connection with the execution of this Agreement and the Initial Project Financing Agreements and not otherwise paid, (C) making Distributions, but only from the proceeds of any Refinancing permitted pursuant to Section 7.08, and (D) any Refinancing of pre- existing Developer Debt that conforms to the provisions of this Section 7.07(a), including use of proceeds to pay the reasonable costs of closing the Refinancing (including Lender’s fees, but excluding any amounts paid to Affiliates).
(b) The Department will have no obligation to join in, execute or guarantee any Financing Assignment.
(c) Notwithstanding the enforcement of any security interest created by a Financing Assignment, the Developer will remain liable to the Department for the payment of all sums owing to the Department pursuant to this Agreement and the performance and observance of all of the Developer’s covenants and obligations pursuant to this Agreement.therewith,
Appears in 1 contract
Samples: Comprehensive Agreement
