Exhibit 4.7
EXECUTION COPY
================================================================================
COMMON AGREEMENT
DATED AS OF OCTOBER 19, 2007
among
CONSTRUCTORA DE PROYECTOS HIDROELECTRICOS, S.A. DE C.V.,
as Borrower,
WESTLB AG, NEW YORK BRANCH, as Intercreditor Agent,
THE WORKING CAPITAL FACILITY LENDERS FROM TIME TO TIME PARTY
HERETO,
THE CONSTRUCTION FACILITY LENDERS FROM TIME TO TIME PARTY
HERETO,
WESTLB AG, NEW YORK BRANCH, as Working Capital Facility ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH, as Construction Facility Administrative Agent
CITIBANK, N.A., as Offshore Collateral Agent,
BANCO NACIONAL DE MEXICO, S.A., INTEGRANTE DEL GRUPO FINANCIERO
BANAMEX, as Onshore Collateral Agent
and
THE OTHER LENDERS AND LENDER REPRESENTATIVES FROM TIME TO TIME
PARTY HERETO
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS .............................. 2
Section 1.01. Certain Defined Terms ................................. 2
Section 1.02. Accounting Principles and Terms ....................... 26
Section 1.03. Rules of Construction ................................. 26
ARTICLE II PARTICIPATION IN THE FINANCING OF THE PROJECT ................ 27
Section 2.01. Procedures for Disbursement of Working Capital Loans .. 27
Section 2.02. Procedures for Disbursements of Construction Loans .... 27
ARTICLE III PREPAYMENTS; TAXES .......................................... 28
Section 3.01. Prepayments ........................................... 28
Section 3.02. Taxes ................................................. 28
Section 3.03. Requirements of Law ................................... 30
Section 3.04. Indemnity ............................................. 32
Section 3.05. Change of Lending Office .............................. 32
Section 3.06. Replacement of Lenders ................................ 32
ARTICLE IV CONDITIONS PRECEDENT ......................................... 33
Section 4.01. Conditions Precedent to the Initial Closing Date and
the Initial Working Capital Facility Borrowing ........ 33
Section 4.02. Conditions Precedent to Each Working Capital Facility
Borrowing ............................................. 37
Section 4.03. Conditions Precedent to the Construction Facility
Closing Date and the Initial Construction Facility
Borrowing ............................................. 37
Section 4.04. Conditions Precedent to Each Construction Facility
Borrowing ............................................. 39
Section 4.05. Conditions to Each Borrowing .......................... 40
Section 4.06. Conditions Precedent Approval. ........................ 41
Section 4.07. Reliance on Certificates .............................. 42
ARTICLE V REPRESENTATIONS AND WARRANTIES ................................ 42
Section 5.01. Representations and Warranties of the Borrower ........ 42
Section 5.02. Rights and Remedies Not Limited ....................... 51
ARTICLE VI COVENANTS OF THE BORROWER .................................... 52
Section 6.01. Affirmative Covenants ................................. 52
Section 6.02. Negative Covenants .................................... 58
Section 6.03. Reporting Obligations ................................. 62
i
ARTICLE VII EVENTS OF DEFAULT ........................................... 65
Section 7.01. Events of Default ..................................... 65
Section 7.02. Acceleration. ......................................... 69
Section 7.03. Other Remedies ........................................ 70
Section 7.04. Additional Rights of Secured Parties .................. 73
Section 7.05. Notice to Borrower .................................... 74
ARTICLE VIII THE COLLATERAL AGENTS ...................................... 74
Section 8.01. Appointment and Duties of Collateral Agents ........... 74
Section 8.02. Direction of Collateral Agents by Intercreditor Agent;
Action by Collateral Agents ........................... 75
Section 8.03. Administration of Collateral .......................... 76
Section 8.04. Collateral Agent Reliance, Etc ........................ 76
Section 8.05. Knowledge of Event of Default ......................... 77
Section 8.06. Successor Collateral Agents. .......................... 78
Section 8.07. Damages ............................................... 79
Section 8.08. Relating to the Collateral Agents ..................... 79
ARTICLE IX THE INTERCREDITOR AGENT ...................................... 81
Section 9.01. Appointment and Duties of Intercreditor Agent. ........ 81
ARTICLE X MISCELLANEOUS ................................................. 87
Section 10.01. Amendments, Etc ....................................... 87
Section 10.02. Notices, Etc .......................................... 89
Section 10.03. No Waiver of Remedies ................................. 89
Section 10.04. Costs, Expenses and Indemnification. .................. 90
Section 10.05. Right of Set-off. ..................................... 91
Section 10.06. Binding Effect ........................................ 92
Section 10.07. Use of Name ........................................... 92
Section 10.08. WAIVER OF JURY TRIAL .................................. 92
Section 10.09. GOVERNING LAW, SUBMISSION TO JURISDICTION, ETC. ....... 92
Section 10.10. Relation of the Parties; No Beneficiary ............... 93
Section 10.11. Execution in Counterparts ............................. 93
Section 10.12. Severability .......................................... 93
Section 10.13. Waiver of Immunity .................................... 94
Section 10.14. English Language ...................................... 94
Section 10.15. Judgment Currency ..................................... 94
Section 10.16. Execution of Other Documents; Conflicts ............... 95
Section 10.17. Acknowledgements ...................................... 95
Section 10.18. Disclosures ........................................... 96
Section 10.19. USA Patriot Act Notice ................................ 96
ii
SCHEDULES:
SCHEDULE 1.01A - ADMINISTRATIVE DECISIONS
SCHEDULE 4.01(O) - SENIOR MANAGERS
SCHEDULE 5.01(C) - GOVERNMENTAL APPROVALS
SCHEDULE 5.01(J) - ENVIRONMENTAL NON-COMPLIANCE
SCHEDULE 5.01(R) - EASEMENTS, ETC.
SCHEDULE 5.01(HH) - POWERS OF ATTORNEY
SCHEDULE 5.01(JJ) - CAPITAL STOCK
SCHEDULE 6.01(D) - INSURANCE REQUIREMENTS
EXHIBITS:
EXHIBIT A - FORM OF ADDITIONAL PROJECT CONTRACT CONSENT
EXHIBIT B - FORM OF INTERCREDITOR AGREEMENT
EXHIBIT C - FORM OF PERFORMANCE GUARANTEE WAIVER LETTER
iii
COMMON AGREEMENT
Dated as of October 19, 2007
THIS COMMON AGREEMENT (as amended, supplemented or otherwise modified from
time to time in accordance herewith, the "Common Agreement") is made by and
among:
(i) CONSTRUCTORA DE PROYECTOS HIDROELECTRICOS, S.A. DE C.V., a sociedad
anonima de capital variable organized under the laws of Mexico (the "Borrower");
(ii) WESTLB AG, NEW YORK BRANCH, as intercreditor agent (together with its
successors and assigns in such capacity, the "Intercreditor Agent") for the
Secured Parties (as hereinafter defined);
(iii) each of the banks and other financial institutions listed on the
signature pages hereto as a "Working Capital Facility Lender" and any of their
assignees that may from time to time become a party hereto (each individually a
"Working Capital Facility Lender" and, collectively, the "Working Capital
Facility Lenders");
(iv) each of the banks and other financial institutions listed on the
signature pages hereto as a "Construction Facility Lender" and any of their
assignees that may from time to time become a party hereto (each individually a
"Construction Facility Lender" and, collectively, the "Construction Facility
Lenders");
(v) WESTLB AG, NEW YORK BRANCH, as working capital facility administrative
agent (together with its successors and assigns in such capacity, the "Working
Capital Facility Administrative Agent") for the Working Capital Facility
Lenders;
(vi) WESTLB AG, NEW YORK BRANCH, as construction facility administrative
agent (together with its successors and assigns in such capacity, the
"Construction Facility Administrative Agent") for the Construction Facility
Lenders;
(vii) CITIBANK, N.A., as offshore collateral agent (together with its
successors and assigns in such capacity, the "Offshore Collateral Agent") for
the Secured Parties;
(viii) BANCO NACIONAL DE MEXICO, S.A., INTEGRANTE DEL GRUPO FINANCIERO
BANAMEX, as onshore collateral agent (together with its successors and assigns
in such capacity, the "Onshore Collateral Agent"); and
(ix) THE OTHER LENDERS AND LENDER REPRESENTATIVES FROM TIME TO TIME PARTY
HERETO.
PRELIMINARY STATEMENTS
1. Pursuant to the International Public Bid (Licitacion Internacional
Publica) No. 18164093-001-07 (the "RFP"), the Borrower has been awarded a
contract to develop and construct a hydroelectric generating plant to be located
in the Hostotipaquillo municipality of the States of Jalisco and Nayarit,
Mexico, which construction shall be in accordance with the terms,
conditions and specifications set forth in the Bid (as hereinafter defined) for
the Project (as hereinafter defined) and the Mixed Financed Public Works
Contract (Contrato Mixto de Obra Publica Financiada), dated September 21, 2007,
entered into by the Consortium (as hereinafter defined) and the Comision Federal
de Electricidad ("CFE").
2. The Borrower desires that the Construction Facility Lenders provide an
up to nine hundred ten million U.S. Dollars (U.S.$910,000,000) construction
facility and that the Working Capital Facility Lenders provide an up to eighty
million U.S. Dollars (U.S.$80,000,000) revolving working capital facility for
the Project, and such lenders are willing to provide such financing subject to
and in accordance with the terms and conditions set forth herein.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Common Agreement, the
following terms shall have the following meanings:
"ABR" means, for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. Any change in the ABR due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loans" means Loans the rate of interest applicable to which is based
upon the ABR.
"Acceptable LC Provider" means a financial institution whose long-term
senior unsecured indebtedness carries either (i) Mexican currency ratings of at
least A3 by ▇▇▇▇▇'▇ and A- by S&P or (ii) foreign or dollar currency ratings of
at least A3 by ▇▇▇▇▇'▇ and A- by S & P; provided, however, that, each of Banco
Santander S.A., Banco Nacional de Mexico, S.A., Integrante del Grupo Financiero
Banamex, HSBC Mexico S.A., Institucion de Banca Multiple, Grupo Financiero HSBC,
WestLB AG, Banco Nacional de Comercio Exterior and BBVA Bancomer, S. A.
Institucion de Banca Multiple, Grupo Financiero BBVA Bancomer y Banco Bilbao
Vizcaya Argentaria, S.A. shall also be deemed to be an Acceptable LC Provider.
"Accounts" means, collectively the Onshore Account and the Offshore
Accounts.
"Accumulated Value" means, from time to time, the nominal value of the
aggregate of all amounts recognized by CFE in the Monthly Reports (as confirmed
by the Independent Engineer).
"Additional Amounts" has the meaning set forth in Section 3.02(a) herein.
"Additional Project Contracts" means, collectively, any additional
contracts with an aggregate value equal to or greater than U.S.$5,000,000
entered into by or assigned to the
2
Borrower after the execution and delivery of this Common Agreement, related to
the development, construction and completion of the Project.
"Administrative Agent Default Rate" means, on any date of determination,
with respect to any amounts payable to any Lender Representative on its own
behalf, the rate per annum equal to the sum of (a) the ABR in effect on such
date plus (b) 2.75%.
"Administrative Decision" means any of the routine and administrative
decisions, actions, authorizations, directions, approvals, determinations,
waivers and consents set forth on Schedule 1.01A to the Common Agreement;
provided, however, Administrative Decision shall not include any decision,
action, authorization, direction, approval, determination, waiver or consent
which relates to an Event of Default or Default (other than with respect to
Section 7.01(t)).
"Affiliate" means, with respect to any Person, any Subsidiary of such
Person or any other Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with such Person. A Person shall be
deemed to control a corporation, a partnership or a limited liability company if
such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such corporation, partnership or
limited liability company, whether through the ownership of voting Securities,
by contract or otherwise.
"Alcance" means Alcance Total S.A. de C.V.
"Applicable GAAP" means (a) with respect to the Borrower, ICA, Nacional,
Alcance, Peninsular, ICASA, Piadisa and CHLY, Mexican GAAP, (b) with respect to
the issuer(s) and, if applicable, confirming institutions of the Performance
Guarantee, Mexican GAAP or International GAAP, and (c) with respect to Power
Machines, International GAAP.
"Assignee" has the meaning assigned thereto in the Credit Agreements.
"Assignment" has the meaning assigned thereto in the Credit Agreements.
"Bankruptcy Event of Default" has the meaning assigned thereto in the
Intercreditor Agreement.
"Bid" means the bidding documents prepared by the Consortium in connection
with its bid for the Public Works Contract consisting of the Technical Proposal
(Propuesta Tecnica), the Economic Proposal (Propuesta Economica) and all
accompanying documents, representations and certificates.
"Board" means the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower" has the meaning assigned thereto in clause (i) of the
introductory paragraph to this Common Agreement.
"Borrower Pledge Agreement" means the Pledge Agreement (Contrato de Prenda
sin Transmision de Posesion) made by the Borrower in favor of the Onshore
Collateral Agent in
3
respect of (i) the rights of the Borrower under each Principal Subcontract and
under each guarantee, bond, letter of credit or other form of security provided
in favor of or for the benefit of the Borrower pursuant to any Principal
Subcontract and, to the extent requested by the Intercreditor Agent, each
Additional Project Contract (other than the Performance Guarantee and Quality
Guarantee), (ii) the rights of the Borrower under the Insurance Policies and
(iii) equipment, materials and all other personal property (both tangible and
intangible) of the Borrower other than the rights of the Borrower under the
Public Works Contract, in form and substance acceptable to each Lender.
"Borrowing" means a Working Capital Facility Borrowing or a Construction
Facility Borrowing, as applicable.
"Business Day" means a day of the year on which banks are not required or
authorized to close in New York, New York or Mexico City, Mexico, and, if the
applicable Business Day relates to any Eurodollar Loans, on which dealings are
carried on in the London interbank market.
"Capital Expenditures" means expenditures of the Borrower (other than
expenditures made with the proceeds of casualty insurance) for fixed or capital
assets that, in accordance with the Applicable GAAP, would be classified as
capital expenditures.
"Capital Lease Liabilities" means all monetary obligations of any Person
under any leasing or similar arrangement that, in accordance with the Applicable
GAAP, would be classified as capitalized leases, and, for purposes of this
Common Agreement and each other Financing Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with the Applicable GAAP.
"Capital Stock" has the meaning assigned thereto in Section 5.01(jj) of
this Common Agreement.
"CFE" has the meaning assigned thereto in paragraph 1 of the Preliminary
Statements.
"CFE Notice" means the notice delivered to and acknowledged in writing by
CFE in connection with, among other things, the pledge of the Borrower's
collection rights under the Public Works Contract, in form and substance
acceptable to each Lender.
"Change in Law" means the occurrence after the relevant date of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or
treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"CHLY" means Compania Hidroelectrica La Yesca, S.A. de C.V.
"CHLY Contract" means the Mixed Works Contract (Contrato Mixto de Obra)
between the Borrower and CHLY, in form and substance satisfactory to the
Lenders.
"Code" means the Internal Revenue Code of 1986.
4
"Collateral" means all of the real and personal property that is subject to
or purported to be subject to any Lien under any or all of the Security
Documents.
"Collateral Agents" means the Offshore Collateral Agent and the Onshore
Collateral Agent, collectively.
"Commission PWC Event of Default" has the meaning assigned to Evento de
Incumplimiento de la Comision in the Public Works Contract.
"Commitment" means a Working Capital Facility Commitment or a Construction
Facility Commitment, as applicable.
"Common Agreement" has the meaning assigned thereto in the introductory
paragraph of this agreement.
"Conduit Lender" means any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a Loan under
this Common Agreement if, for any reason, its Conduit Lender fails to fund any
such Loan, and the designating Lender (and not the Conduit Lender) shall have
the sole right and responsibility to deliver all consents and waivers required
or requested under this Common Agreement with respect to its Conduit Lender, and
provided, further, that no Conduit Lender shall (a) be entitled to receive any
greater amount pursuant to this Common Agreement than the designating Lender
would have been entitled to receive in respect of the extensions of credit made
by such Conduit Lender or (b) be deemed to have any Commitment.
"Consortium" means, collectively, the Borrower, ICASA, Piadisa and
Peninsular.
"Consortium Agreement" means the Convenio Privado para la Constitucion de
un Consorcio, dated August 7, 2007, among the Borrower, ICASA, Piadisa and
Peninsular.
"Construction Budget" means the Borrower's budget for all anticipated
Project Costs to be incurred in connection with the development, construction
and commissioning of the Project, which shall include a balanced statement of
sources and uses of proceeds of the Construction Loans and any other funds
necessary to develop, construct and complete the Project.
"Construction Facility Administrative Agent" has the meaning assigned
thereto in clause (vi) of the introductory paragraph to this Common Agreement.
"Construction Facility Borrowing" means a borrowing under the Construction
Facility Credit Agreement consisting of Construction Loans of the same Type and
Interest Period and made on the same day by one or more Construction Facility
Lenders, as thereafter continued and/or converted.
"Construction Facility Closing Date" means the first Business Day upon
which each of the conditions precedent set forth in Sections 4.03 and 4.04 of
the Common Agreement have been fulfilled to the satisfaction of each
Construction Facility Lender.
5
"Construction Facility Commitment" has the meaning assigned thereto in the
Construction Facility Credit Agreement.
"Construction Facility Credit Agreement" means the credit agreement dated
as of October 19, 2007 (as amended, supplemented or otherwise modified from time
to time), among the Borrower, the Construction Facility Lenders and the
Construction Facility Administrative Agent.
"Construction Facility Fee Letter" means that certain letter agreement
dated October 19, 2007 between the Borrower, ICA, the Construction Facility
Administrative Agent and each Construction Facility Lender party hereto as of
the Signing Date.
"Construction Facility Lender" has the meaning assigned thereto in clause
(iv) of the introductory paragraph to this Common Agreement.
"Construction Facility Lender Default Rate" means, on any date of
determination, with respect to any amount payable to any Construction Facility
Lender, the rate per annum equal to the sum of (a) the ABR in effect on such
date plus (b) the Applicable Margin (as defined in the Construction Facility
Credit Agreement) for ABR Loans in effect on such date plus (c) 2.00%.
"Construction Facility Loan Documents" means, collectively, the
Construction Facility Credit Agreement, the Interest Rate Cap, the Notices of
Borrowing issued in connection with any Construction Facility Borrowing and the
notices of continuation and/or conversion issued in connection with any
Construction Loan.
"Construction Facility Majority Lenders" means, at any time, Construction
Facility Lenders having more than fifty percent (50%) of (a) the aggregate
outstanding Construction Facility Commitments and (b) the aggregate principal
amount of all outstanding Construction Loans.
"Construction Facility Notice of Borrowing" has the meaning assigned
thereto in the Construction Facility Credit Agreement.
"Construction Facility Obligations" means all Obligations in favor of the
Construction Facility Administrative Agent, the Construction Facility Lenders
or, as applicable, the Intercreditor Agent for the benefit of the Construction
Facility Administrative Agent or Construction Facility Lenders.
"Construction Facility Percentage" has the meaning set forth in the
Construction Facility Credit Agreement.
"Construction Facility Required Lenders" means, at any time, Construction
Facility Lenders having more than seventy-five percent (75%) of (a) the
aggregate outstanding Construction Facility Commitments and (b) the aggregate
principal amount of all outstanding Construction Loans.
"Construction Loans" has the meaning assigned thereto in the Construction
Facility Credit Agreement.
6
"Construction Schedule" means the schedule for construction and completion
of the Project set forth in Annex 3 to the Public Works Contract and delivered
by the Borrower on the date of this Common Agreement pursuant to Section 4.01(i)
(without, unless otherwise expressly set forth in this Common Agreement, giving
effect to any extensions of the same pursuant to the Public Works Contract as
the result of any Event of Force Majeure, of any act or omission of CFE or
otherwise).
"Contaminant" means any pollutant, hazardous substance, radioactive
substance, toxic substance, hazardous waste, medical waste, radioactive waste,
special waste, petroleum or petroleum-derived waste, asbestos, polychlorinated
biphenyls, or any hazardous or toxic constituent thereof and includes but is not
limited to any substance regulated under any EHS Requirement.
"Contract Price" has the meaning assigned to Precio del Contrato in the
Public Works Contract.
"Contractor" has the meaning assigned to Contratista in the Public Works
Contract.
"Contractor PWC Event of Default" has the meaning assigned to "Evento de
Incumplimiento del Contratista" in the Public Works Contract.
"Contractual Obligation" means, as to any Person, any provision of any
Security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"Credit Agreements" means, collectively, the Construction Facility Credit
Agreement and the Working Capital Facility Credit Agreement.
"Credit Facilities" means the collective reference to the credit facilities
available to the Borrower under the Construction Facility Credit Agreement and
the Working Capital Facility Credit Agreement.
"Credit Parties" means, collectively, the Borrower and the Sponsors.
"Debt" means (a) all indebtedness for borrowed money, including all
payments of principal, interest, premium and all other amounts payable in
connection therewith, (b) obligations evidenced by debt securities, bonds,
debentures, notes, acceptances or other similar instruments, (c) obligations to
pay the deferred purchase price of property or services (excluding trade
accounts payable, supplier accounts payable or accrued liabilities arising in
the ordinary course of business and which are not overdue by more than
one-hundred twenty (120) days), (d) Capital Lease Liabilities, (e) obligations
(contingent or otherwise) under reimbursement or similar agreements with respect
to the issuance of letters of credit, (f) obligations under "swaps," "caps,"
"floors," "collars" or other interest rate or currency exchange hedging
contracts or similar arrangements, (g) Guaranty Obligations, and (h) Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person.
7
"Debt Service" means, for any period (without duplication), all payments of
interest, premium, Fees, Non-Excluded Taxes, Other Taxes or other amounts (other
than principal payments on the Loans), made or required to be made by the
Borrower during such period under this Common Agreement and any other Financing
Document.
"Default" means the occurrence and continuance of an event or condition
that, with the giving of notice or lapse of time, or both, would constitute an
Event of Default.
"Default Rate" means, on any date of determination, a rate per annum equal
to the Administrative Agent Default Rate, Construction Facility Lender Default
Rate or Working Capital Facility Lender Default Rate, as applicable.
"Depositary Agreement" means an agreement among the Borrower, the Facility
Administrative Agents, the Offshore Collateral Agent, the Onshore Collateral
Agent, the Intercreditor Agent and the Offshore Depositary Bank.
"Depositary Bank Claims" has the meaning assigned thereto in the Depositary
Agreement.
"Designated Jalisco Permit" means the permits required to be issued by the
State of Jalisco, Mexico in respect of the construction of the water treatment
system and in respect of the construction and operation of the Project's
sanitary landfill.
"Disbursement LC Provider" has the meaning assigned thereto in the Working
Capital Facility Credit Agreement.
"Disbursement LCs" has the meaning assigned thereto in the Working Capital
Facility Credit Agreement.
"Dollar Construction Account" has the meaning assigned thereto in the
Depositary Agreement.
"Dollar Disbursement Account" has the meaning assigned thereto in the
Depositary Agreement.
"Dollar Disbursement Guarantee Account" has the meaning assigned thereto in
the Depositary Agreement.
"Dollar DSU Account" has the meaning assigned thereto in the Depositary
Agreement.
"Dollar Loss Proceeds Deposit Account" has the meaning assigned thereto in
the Depositary Agreement.
"Dollar Permitted Investments" means U.S. Dollar-denominated investments
that are:
(a) obligations of or directly and fully guaranteed by the United
States of America, or of any agency or instrumentality thereof, maturing
not later than 365 days from the date of acquisition thereof;
8
(b) certificates of deposit, time deposits and banker's acceptances
maturing not later than 365 days from the date of acquisition thereof, or
overnight bank deposits, in each case held or maintained by any commercial
bank having capital in excess of U.S.$500,000,000 and having a commercial
paper rating (or the holding company thereof having a commercial paper
rating) of A-1 (or the equivalent thereof) or better by S&P and that is a
member of the Federal Reserve System, provided, that, the Offshore
Depository Bank will not purchase any commercial paper issued by Citigroup,
Inc. or any Affiliate of Citigroup, Inc. ("Citigroup Paper") unless the
Offshore Depository Bank is specifically instructed, in writing and on a
per investment basis, to purchase Citigroup Paper;
(c) commercial paper rated (on the date of acquisition thereof) A-1
(or the equivalent thereof) or better by S&P, maturing not later than two
hundred seventy (270) days from the date of acquisition thereof; or
(d) money market funds having a rating in the highest investment
category granted thereby by S&P at the time of acquisition, including any
fund for which the Offshore Depository Bank or an Affiliate of the Offshore
Depository Bank serves as an investment advisor, administrator, shareholder
servicing agent, custodian or sub-custodian, notwithstanding that (i) the
Offshore Depository Bank or an Affiliate of the Offshore Depository Bank
charges and collects fees and expenses from such funds for services
rendered (provided that such charges, fees and expenses are on terms
consistent with terms negotiated at arm's length) and (ii) the Offshore
Depository Bank charges and collects fees and expenses for services
rendered, pursuant to this Common Agreement.
"EHS" means environment, health, safety and/or social.
"EHS Damages" means all claims, judgments, damages (including punitive
damages), losses, obligations, penalties, fines, interest, fees, liabilities
(including strict liability), encumbrances, liens, costs and expenses (including
costs and expenses of investigation and defense of any claim, whether or not
such claim is ultimately defeated, and of any settlement or judgment), of
whatever kind or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable (including reasonable attorney's and consultants'
fees and disbursements), any of which are incurred at any time and arise out of
or relate in any way to (a) violation or alleged violation by any Person of any
EHS Requirements applicable to the Borrower or the Project, (b) the presence or
the Release of any Contaminant at the Property (including any Release that
occurred prior to the Borrower's construction, use or maintenance of the
Project) and any related Remedial Action or (c) the transport, treatment,
recycling, reuse, Release, use, storage or disposal at any location of any
Contaminant generated, treated, recycled, stored, processed, used, transported,
Released or disposed of by any Person at or from the Project, or any other
building, structure, facility or installation presently or formerly located at
the Property.
"EHS Decision" means (a) amending this definition of EHS Decision or the
definition of EHS Requirements or of Equator Principles or (b) any
authorization, direction, approval, determination, waiver, amendment or consent
with respect to (A) Section 6.01(f) of the Common Agreement (Compliance with
Laws, Etc.) (but solely with respect to any EHS Requirement) or
9
(B) Section 7.01(s) of the Common Agreement (but solely with respect to any
EHS Requirement).
"EHS Notice" means any complaint, order, report, citation, notice or other
written communication received by the Borrower from any Person (including, but
not limited to, an employee) (a) with respect to any violation or alleged
violation of any EHS Requirement, or (b) relating to the Release of any
Contaminant in violation of any EHS Requirement or requiring any Remedial Action
at any location, that could affect the Borrower or the Project.
"EHS Permits" means any Governmental Approval required by or applicable
under any EHS Requirement.
"EHS Report" means any written report issued from time to time by the
Environmental Consultant regarding the EHS aspects of the Public Works Contract
and the Project.
"EHS Requirements" means (a) any applicable Law pertaining to (i) the
protection of health, safety, and the indoor or outdoor environment, (ii) the
conservation, management, or use of natural resources and wildlife, (iii) the
protection or use of surface water and groundwater, (iv) the management,
manufacture, possession, presence, use, generation, transportation, treatment,
storage, disposal, Release, threatened Release, abatement, removal, remediation
or handling of, exposure to, any Contaminant or (v) pollution (including any
Release to air, soil, surface water, groundwater, or into the workplace), (b)
the Equator Principles and (c) the Environmental Management Manual (Manual de
Gestion Ambiental) included as Annex 6B of the Public Works Contract and the
Environmental Management System (Sistema de Gestion Ambiental) included as Annex
6D of the Public Works Contract.
"Electromechanical Contract" means the Contrato por el Alcance de las Obras
Electromecanicas Requeridas para el Proyecto Hidroelectrico La Yesca between the
Borrower and Power Machines, in form and substance satisfactory to the Lenders,
and any guarantee or guarantees issued in respect of the obligations of Power
Machines thereunder.
"Enforcing Required Lender" has the meaning assigned thereto in the
Intercreditor Agreement.
"Entitled Person" has the meaning assigned thereto in Section 10.15.
"Environmental Consultant" means URS Corporation, or such other
environmental and social consultant as shall be engaged by the Intercreditor
Agent from time to time to examine, report upon and advise the Intercreditor
Agent and the Lenders with respect to all EHS issues pertaining to the Project.
"Environmental Lien" means a lien in favor of any Governmental Authority
for any (a) liability under any EHS Requirement, or (b) damages arising from, or
costs incurred by, such Governmental Authority in response to a Release of a
Contaminant into the environment.
"Environmental Matter" has the meaning assigned thereto in Section
10.04(c).
10
"Equator Principles" means those certain principles and standards
(including the preamble, materials incorporated by reference and exhibits
thereto) voluntarily adopted by certain banks and other financial institutions,
all as set forth more fully at ▇▇▇.▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇, as
the same exist on the date of this Common Agreement, including without
limitation, the applicable International Finance Corporation Performance
Standards and Environmental Health and Safety Guidelines as referenced in
Exhibits III and IV to the Equator Principles.
"Eurocurrency Reserve Requirements" means, for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate" means, with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in U.S. Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
the Reuters Screen LIBOR01 Page as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate does
not appear on such page (or otherwise on such screen), the "Eurodollar Base
Rate" shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the
Intercreditor Agent or, in the absence of such availability, by reference to the
rate at which the Intercreditor Agent is offered U.S. Dollar deposits at or
about 11:00 A.M., New York City time, two Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where its eurodollar
and foreign currency and exchange operations are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein.
"Eurodollar Loans" means Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate" means, with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default" has the meaning assigned thereto in Section 7.01.
"Event of Force Majeure" has the meaning assigned to Caso Fortuito o Fuerza
Mayor in the Public Works Contract.
"Event of Loss" means (a) the actual or constructive loss of all or
substantially all of the Project, (b) a Taking with respect to all or
substantially all of the Project, or (c) any damage, loss or destruction of all
or any portion of the Project in an amount not covered by insurance in excess of
U.S.$25,000,000.
11
"Facility Administrative Agents" means, collectively, the Working Capital
Facility Administrative Agent and the Construction Facility Administrative
Agent.
"Federal Funds Effective Rate" means, for any day, the weighted average of
the per annum rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Intercreditor
Agent from three federal funds brokers of recognized standing selected by it.
"Federal Reserve System" means the Federal Reserve System of the United
States of America.
"Fee Letters" means, collectively, (a) the Construction Facility Fee
Letter, (b) the WestLB Fee Letter and (c) any other fee letter executed from
time to time between the Borrower and any successor Lender Representative in
accordance with the Financing Documents.
"Fees" means, collectively, each of the fees set forth in Section 2.10 of
the Construction Facility Credit Agreement, Section 2.10 of the Working Capital
Facility Credit Agreement and in the Fee Letters.
"Financial Representative" means (i) with respect to any Sponsor, the Chief
Financial Officer of such Sponsor and (ii) with respect to any other Person, a
Representative of such Person responsible for the financial affairs of such
Person.
"Financing Documents" means, collectively, this Common Agreement, the
Working Capital Facility Loan Documents, the Construction Facility Loan
Documents, the Security Documents, the Sponsor Guarantees, the CFE Notice, Third
Party Consents, the Intercreditor Agreement, the Fee Letters and any other
documents necessary to implement the financing to be provided by the Lenders.
"Fundamental Decision" means any authorization, direction, approval,
determination, waiver, amendment or consent which would have the effect of:
(a) changing the maturity of any Loan or reducing the principal amount
thereof or changing the currency or place or manner of payment thereof;
(b) changing the Applicable Margin (as defined in the Construction Facility
Credit Agreement or the Working Capital Facility Credit Agreement) or any other
margin or fixed rate with respect to interest on any Loan or the obligation to
pay Non-Excluded Taxes or Other Taxes, or changing the time of payment of
interest, fees or other amounts due on any Loan;
(c) amending the definition of Fundamental Decision as set forth in the
Common Agreement;
(d) releasing any Collateral, terminating any Lien created pursuant to any
Security Document or depriving any Secured Party of the security afforded or
purported to be afforded by any Security Document (except as otherwise allowed
under the Financing Documents);
12
(e) amending the priority of the security interests granted in the
Collateral in favor of the Lenders except as contemplated in the Financing
Documents;
(f) amending any Financing Document or consenting to the amendment of any
Financing Document in a manner that prefers one or more Lenders over any other
Lenders;
(g) waiving any Payment Event of Default or Bankruptcy Event of Default, in
each case with respect to the Construction Facility Credit Agreement;
(h) waiving, amending or modifying any voting requirement, procedure or
percentage in the Common Agreement or the Intercreditor Agreement;
(i) waiving any condition precedent contained in Sections 4.01, 4.02, 4.03,
4.04 or 4.05 of the Common Agreement (except, in each case, with respect to
conditions precedent set forth exclusively in the Working Capital Facility
Credit Agreement) or any determination, consent or approval in respect thereof,
in each case only in respect of the initial Working Capital Facility Borrowing
and the initial Construction Facility Borrowing;
(j) permitting any assignment by the Borrower (other than any assignment
permitted pursuant to Clause 15.3 or Clause 21.6 of the Public Works Contract,
provided that such assignment is expressly made subject to the Liens created
pursuant to the Security Documents) or CFE (other than any assignment permitted
pursuant to Clause 30.1 of the Public Works Contract) of any of its rights or
obligations under any Transaction Documents;
(k) eliminating the right of any Secured Party to receive any notices under
any Transaction Document;
(l) amending or modifying Section 10.01 of this Common Agreement or the
Intercreditor Agreement; and
(m) releasing any Sponsor of any of its payment obligations under the
relevant Sponsor Guarantee.
"Good Faith Contest" means the contest of an item if the item is diligently
contested in good faith by appropriate proceedings timely instituted and (a)
adequate cash reserves are established with respect to the contested item in
accordance with Applicable GAAP with respect to any Principal Subcontractor and
in accordance with Mexican GAAP with respect to the Borrower, and (b) during the
period of such contest, the enforcement of any contested item is effectively
stayed.
"Governmental Approval" means any authorization, consent, approval,
license, franchise, lease, ruling, tariff, rate, permit, certificate,
notification, exemption of, or filing or registration with, any Governmental
Authority, including any EHS Permit, or authorization required in connection
with (a) the execution, delivery or performance of any Transaction Document, (b)
the grant and perfection of any Lien contemplated by the Security Documents or
(c) the development, construction or completion of the Project.
13
"Governmental Authority" means any national, state or local government
(whether domestic or foreign) or any other political subdivision thereof, and
any entity exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government.
"Governmental Force Majeure" has the meaning assigned to Fuerza Mayor
Gubernamental in the Public Works Contract.
"Guaranty Obligations" means, with respect to any Person, obligations of
such Person under direct or indirect guarantees in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or make an
investment or supply funds, or otherwise to assure a creditor or other Person,
either directly or indirectly, against loss in respect of, indebtedness or
obligations of others that (a) are of the kinds referred to in clauses (a)
through (e) of the definition of "Debt" (such as obligations to pay for property
or services irrespective of whether such property is tendered or transferred or
such services are performed) or (b) are obligations that represent trade
accounts payable or accrued liabilities, regardless of whether or not such
obligations are required to be reflected in the financial statements of such
Person under Applicable GAAP.
"ICA" means Empresas ICA, S.A.B. de C.V., a sociedad anonima bursatil de
capital variable organized under the laws of Mexico.
"ICA Guarantee" means the Guarantee Agreement made by ICA in favor of the
Offshore Collateral Agent, in form and substance acceptable to each Lender.
"ICASA" means Ingenieros Civiles Asociados, S.A. de C.V., a sociedad
anonima de capital variable organized under the laws of Mexico.
"IFRS" means the International Financial Reporting Standards promulgated by
the International Accounting Standards Board, as in effect and may be modified
from time to time.
"Indemnified Person" has the meaning assigned thereto in Section 10.04(b).
"Independent Engineer" means MWH Americas, Inc., or such other independent
consulting engineer of recognized expertise selected by the Intercreditor Agent,
with the consent of each of the Working Capital Facility Majority Lenders and
the Construction Facility Majority Lenders, to act for the Lenders pursuant to
the terms of this Common Agreement and other Financing Documents.
"Initial Closing Date" means the first Business Day upon which each of the
conditions precedent set forth in Sections 4.01 and 4.02 of the Common Agreement
have been fulfilled to the satisfaction of each Working Capital Facility Lender.
"Insurance Consultant" means ▇▇▇▇▇-▇▇▇▇▇▇▇ LLC, or such other independent
insurance consultant of recognized expertise selected by the Intercreditor
Agent, with the consent of each of the Working Capital Facility Majority Lenders
and the Construction Facility Majority Lenders, to act for the Lenders pursuant
to the terms of this Common Agreement and other Financing Documents.
14
"Insurance Policies" means the policies of insurance with respect to the
development, construction and completion of the Project meeting at least the
requirements set forth in Schedule 6.01(d).
"Intercreditor Agent" has the meaning assigned thereto in clause (ii) of
the introductory paragraph of this Common Agreement.
"Intercreditor Agreement" means the Intercreditor Agreement among the
Facility Administrative Agents, the Offshore Collateral Agent, the Onshore
Collateral Agent and the Intercreditor Agent, in substantially the form of
Exhibit B hereto or otherwise as may be in form and substance acceptable to the
Lenders, the Intercreditor Agent and the Facility Administrative Agents.
"Interest Period" has the meaning assigned thereto in the Credit
Agreements.
"Interest Rate Cap" means any interest rate cap agreement entered into by
the Borrower to provide a cap on the interest rate payable on the Construction
Loans.
"Interest Rate Notice" has the meaning assigned thereto in the Credit
Agreements.
"International GAAP" means U.S. GAAP, U.K. GAAP or IFRS.
"Law" means any domestic or foreign, federal, state, local or other
statute, law, rule, regulation, decree, ordinance, order, code, policy or rule
of common law, now or hereafter in effect, and any judicial or administrative
interpretation thereof by a Governmental Authority or otherwise, including any
judicial or administrative order, consent decree or judgment.
"Lender Representatives" means, collectively, the Working Capital Facility
Administrative Agent, the Construction Facility Administrative Agent, the
Intercreditor Agent, the Collateral Agents and the Offshore Depositary Bank.
"Lenders" means, collectively, the Working Capital Facility Lenders and the
Construction Facility Lenders, and shall also be deemed to include each
permitted Assignee that becomes a Working Capital Facility Lender or a
Construction Facility Lender in accordance with the terms of the Credit
Agreements.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement, encumbrance, preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Loan" means any Working Capital Loan or Construction Loan.
"Loan Maturity Date" means July 2, 2012, provided, however, that such date
may be extended upon written notice from the Borrower for up to two hundred
seventy (270) days for Permissible Project Completion Delays.
15
"Material Adverse Effect" means a material adverse effect, as determined in
the reasonable opinion of the Intercreditor Agent (acting at the instructions of
(i) prior to the Construction Facility Closing Date, the Working Capital
Facility Majority Lenders and (ii) on and after the Construction Facility
Closing Date, the Construction Facility Majority Lenders), on (a) the ability of
the Borrower, any Sponsor or any other Project Party to perform its obligations
within the period contemplated therefore (including any applicable grace period
not exceeding thirty (30) days) under any of the Transaction Documents to which
it is a party, (b) the Project, the Collateral, or the rights and remedies of
the Secured Parties under any of the Financing Documents, (c) the validity or
enforceability of any of the Transaction Documents, or (d) the business,
operations, financial condition or prospects of the Borrower or CFE.
"Material Decision" means any decision, action, authorization, direction,
approval, determination, waiver, amendment or consent that is not an
Administrative Decision, Fundamental Decision or EHS Decision.
"Member" means the Borrower, Piadisa, ICASA, Peninsular and any Person from
time to time party to the Consortium Agreement.
"Mexican GAAP" means generally accepted accounting principles in Mexico as
in effect and as may be modified from time to time.
"Mexican Security Documents" means, collectively, (a) the Borrower Pledge
Agreement, (b) the Stock Pledge Agreement, (c) the PWC Pledge Agreement and (d)
the Powers of Attorney.
"Mexico" means the United Mexican States.
"Minimum Performance Standards" means the specifications and standards set
forth in Form OT22 and OT24 of the Bid pursuant to Annex 13, Section I.2
(Valores garantizados por el licitante) in the Public Works Contract and the
specifications and standards set forth in the "Equipos Electromecanicos" section
in Form OT23 of the Bid.
"Monthly Report" means each monthly progress report delivered by the
Borrower to CFE pursuant to Clause 13.4 of the Public Works Contract, together
with all CFE recognitions of the same.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Nacional" means La Nacional Compania Constructora, S.A. de C.V., a
sociedad anonima de capital variable organized under the laws of Mexico.
"Nacional Guarantee" means the Guarantee Agreement made by Nacional and
Alcance in favor of the Offshore Collateral Agent, in form and substance
acceptable to each Lender.
"Non-Excluded Taxes" has the meaning set forth in Section 3.02(a).
"Notice of Borrowing" means a Construction Facility Notice of Borrowing or
a Working Capital Facility Notice of Borrowing, as applicable.
16
"Obligations" means (a) each and every obligation, covenant and agreement
of the Borrower now or hereafter existing contained in this Common Agreement or
any of the other Financing Documents to which the Borrower is a party, whether
for principal, interest (including interest accruing on or after the filing of,
or which would have accrued but for the filing of, any petition in bankruptcy or
for reorganization relating to the Borrower whether or not a claim for
post-filing interest is allowed in such proceeding), premium, Fees, expenses or
otherwise, and any amendments or supplements thereto, extensions or renewals
thereof or replacements therefor, (b) all sums advanced in accordance with the
Security Documents to which the Borrower is a party by or on behalf of any
Secured Party to protect any of the Collateral purported to be subject thereto,
(c) any amounts paid by any Indemnified Person as to which such Indemnified
Person has a right to reimbursement and (d) any amounts paid by any Secured
Party in preservation of such Secured Party's rights or interests in the
Collateral, together with interest on such amounts from the date such amounts
are paid until reimbursement in full at the Default Rate or other applicable
default rate; in each case whether direct or indirect, joint or several,
absolute or contingent, liquidated or unliquidated, now or hereafter existing,
renewed or restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, and including all Debt of
the Borrower under any instrument now or hereafter evidencing or securing any of
the foregoing.
"Offshore Accounts" means the Offshore Deposit Accounts and the Offshore
Securities Accounts, in each case as established and maintained pursuant to the
Depositary Agreement.
"Offshore Collateral Agent" has the meaning assigned thereto in clause
(vii) of the introductory paragraph to this Common Agreement.
"Offshore Deposit Accounts" has the meaning assigned thereto in the
Depositary Agreement.
"Offshore Depositary Bank" shall have the meaning assigned thereto in the
Depositary Agreement.
"Offshore Securities Accounts" has the meaning assigned thereto in the
Depositary Agreement.
"Onshore Account" means the Peso account established and maintained
pursuant to the Depositary Agreement by the Onshore Collateral Agent.
"Onshore Collateral Agent" has the meaning assigned thereto in clause
(viii) of the introductory paragraph to this Common Agreement.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Common Agreement or any other Financing
Document.
"Participant" has the meaning assigned thereto in the Credit Agreements.
17
"Payment Event of Default" means any Event of Default described in Section
7.01(a) or Section 7.01(b) of this Common Agreement.
"Peninsular" means La Peninsular Compania Constructora, S.A. de C.V., a
sociedad anonima de capital variable organized under the laws of Mexico.
"Performance Guarantee" means the Garantia de Cumplimiento in the Public
Works Contract.
"Permissible Project Completion Delay" means any delay in achieving the
Project Completion Date on June 11, 2012 (a) that is excused pursuant to Section
13.3(b) of the Public Works Contract, provided that (i) such delay does not
equal or exceed sixty (60) days in the aggregate and (ii) all documented
financial costs incurred by the Borrower as a result of such delay are being
paid by CFE to the Borrower when due in accordance with the Public Works
Contract (or CFE has recognized in a writing executed after the occurrence of
the relevant act or omission of CFE (which writing is in form and substance
satisfactory to the Intercreditor Agent) its obligation to pay such amounts not
later than on the Loan Maturity Date), (b) that is excused pursuant to Section
13.3(a) of the Public Works Contract as the result of Governmental Force
Majeure, provided that such delay does not equal or exceed 60 days in the
aggregate, (c) that is excused pursuant to Section 13.3(a) of the Public Works
Contract as the result of an Event of Force Majeure which does not continue for
more than one hundred eighty (180) consecutive days or two hundred seventy (270)
cumulative days, (d) that is excused pursuant to a written waiver validly
executed and delivered by CFE, a copy of which (certified as true, correct and
complete by the Borrower) shall have been provided to the Intercreditor Agent or
(e) that is attributable to any other reason (other than a Commission PWC Event
of Default or an Event of Force Majeure), provided that (i) such delay does not
equal or exceed thirty (30) days and (ii) all amounts payable to CFE under the
Public Works Contract during the period of such delay are being made (or the
Intercreditor Agent is satisfied will be made) pursuant to the Public Works
Contract and the Performance Guarantee, provided that, in each of (a), (b), (c)
and (d) above, CFE shall have delivered to the Borrower a written
acknowledgment, a copy of which (certified as true, correct and complete by the
Borrower) shall have been provided to the Intercreditor Agent, that the delay is
excusable under Section 13.3(a) or 13.3(b) of the Public Works Contract or such
waiver, as applicable; provided that after giving effect to any such delay under
(a), (b), (c), (d) and (e) above the representations and warranties set forth in
subsection 5.01(dd) are true and correct.
"Permissible Provisional Acceptance Delay" means any delay in achieving the
Provisional Acceptance Date of the First Unit on January 2, 2012 (a) that is
excused pursuant to Section 13.3(b) of the Public Works Contract, provided that
(i) such delay does not equal or exceed sixty (60) days in the aggregate and
(ii) all documented financial costs incurred by the Borrower as a result of such
delay are being paid by CFE to the Borrower when due in accordance with the
Public Works Contract (or CFE has recognized in a writing executed after the
occurrence of the relevant act or omission of CFE (which writing is in form and
substance satisfactory to the Intercreditor Agent) its obligation to pay such
amounts not later than on the Loan Maturity Date), (b) that is excused pursuant
to Section 13.3(a) of the Public Works Contract as the result of Governmental
Force Majeure, provided that such delay does not equal or exceed sixty (60) days
in the aggregate, (c) that is excused pursuant to Section 13.3(a) of the
18
Public Works Contract as the result of an Event of Force Majeure which does not
continue for more than one hundred eighty (180) consecutive days or two hundred
seventy (270) cumulative days, (d) that is excused pursuant to a written waiver
validly executed and delivered by CFE, a copy of which (certified as true,
correct and complete by the Borrower) shall have been provided to the
Intercreditor Agent or (e) that is attributable to any other reason (other than
a Commission PWC Event of Default or an Event of Force Majeure), provided that
(i) such delay does not equal or exceed thirty (30) days and (ii) all amounts
payable to CFE under the Public Works Contract during the period of such delay
are being made (or the Intercreditor Agent is satisfied will be made) pursuant
to the Public Works Contract and the Performance Guarantee, and, in each of (a),
(b), (c) and (d), provided CFE shall provided a written acknowledgement to the
Borrower, a copy of which (certified as true, correct and complete by the
Borrower) shall have been provided to the Intercreditor Agent, that the delay is
excusable under Section 13.3(a) or 13.3(b) of the Public Works Contract or such
waiver, as applicable; provided, that after giving effect to any such delay such
delay under (a), (b), (c), (d) and (e) above the representations and warranties
set forth in subsection 5.01(dd) are true and correct.
"Permitted Investments" means, collectively, Dollar Permitted Investments
and Peso Permitted Investments.
"Permitted Liens" has the meaning assigned thereto in Section 6.02(a).
"Person" means an individual, partnership, corporation, business trust,
limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
"Peso Operating Account" means a Peso account of the Borrower maintained in
Mexico, which account shall be funded exclusively with (i) the proceeds of any
VAT Receivables or (ii) amounts withdrawn from the Dollar Construction Account
and converted into Pesos in accordance with the Depositary Agreement, which
proceeds or amounts shall, in each such case, be used to pay Project Costs due
and payable in Pesos within thirty (30) days of receipt of such funds.
"Peso Permitted Investments" means Peso-denominated investments that are
debt obligations issued or guaranteed by the Mexican government, a Mexican
governmental entity or Banco de Mexico having maturities of not more than thirty
(30) days from the date of acquisition.
"Pesos" or "P$" means the lawful currency of Mexico.
"Piadisa" means Promotora e Inversora ADISA, S.A. de C.V., a sociedad
anonima de capital variable organized under the laws of Mexico.
"Power Machines" means Open Joint Stock Company "Power machines ZTL, LMZ,
Electrosila, Energomachexport", an open joint stock company organized under the
laws of the Russian Federation.
19
"Powers of Attorney" means, collectively, the powers of attorney granted by
the Borrower to the Onshore Collateral Agent pursuant to the Mexican Security
Documents and each power of attorney required pursuant to Section 4.01(n)(ii) or
Section 4.03(h)(ii).
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by the Intercreditor Agent as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by the Intercreditor Agent in connection with
extensions of credit to debtors).
"Principal Subcontractor" means each party (other than the Borrower) to any
Principal Subcontract.
"Principal Subcontracts" means, collectively, (a) the CHLY Contract and (b)
the Electromechanical Contract.
"Pro Rata Share" has the meaning assigned thereto in the Intercreditor
Agreement.
"Process Agent" has the meaning assigned thereto in Section 10.09(c).
"Project" means the hydroelectric generating plant to be constructed by the
Consortium pursuant to the Public Works Contract, the Property and all other
property and rights, real and personal, tangible and intangible, wherever
located, including all rights and interests of the Consortium and each Member in
the Project Documents.
"Project Completion" has the meaning assigned to Culminacion del Proyecto
in the Public Works Contract.
"Project Completion Date" has the meaning assigned to Fecha de Culminacion
del Proyecto in the Public Works Contract.
"Project Costs" means the costs and expenses incurred by the Borrower in
connection with the development (including initial studies and investigative
work), financing, design, engineering, procurement, construction, completion and
commissioning of the Project, including initial spare parts for the Project but
excluding (i) any amounts or letters of credit to be deposited in the Dollar
Disbursement Guarantee Account in accordance with the Working Capital Facility
Credit Agreement or the Depositary Agreement, (ii) any deposits to be provided
to CFE as all or part of any Performance Guarantee or the Quality Guarantee and
(iii) any penalties (penas) payable to CFE under the Public Works Contract.
"Project Documents" means, collectively, the Public Works Contract, all
Monthly Reports, the Performance Guarantee, the Quality Guarantee (if any), the
Principal Subcontracts, any Additional Project Contracts and the Consortium
Agreement.
"Project Matter" has the meaning assigned thereto in Section 10.04(b).
"Project Parties" means, collectively, the Credit Parties, CFE, the
Shareholders, the Members, the Principal Subcontractors, and the parties (other
than the Borrower) to each Additional Project Contract.
20
"Property" means, collectively, the Site, the Real Estate Rights and such
easements, rights of access and other property rights obtained, or required to
be obtained, by the Consortium in connection with the development, construction
and completion of the Project.
"Provisional Acceptance" has the meaning assigned to Aceptacion Provisional
in the Public Works Contract.
"Provisional Acceptance Date" has the meaning assigned to Fecha de
Aceptacion Provisional in the Public Works Contract.
"Provisional Acceptance of the First Unit" has the meaning assigned to
Aceptacion Provisional de la Primera Unidad in the Public Works Contract.
"Public Works Contract" means, collectively, (a) the contract between the
Consortium and CFE referred to in paragraph 1 of the Preliminary Statements, (b)
the Bid and (c) to the extent applicable, the RFP.
"PWC Change Order" means any offer, acceptance, agreement (including any
convenio), undertaking, or acknowledgement of the Consortium pursuant to Section
9.3 of the Public Works Contract; provided, that, any recognition by CFE of any
Unit Price Activities (Actividades a Precios Unitarios) completed by the
Consortium shall not constitute PWC Change Orders.
"PWC Pledge Agreement" means the pledge agreement made by each Member in
favor of the Onshore Collateral Agent in respect of the collection rights of
each Member under the Public Works Contract and setting forth certain other
undertakings in respect of the Public Works Contract, in form and substance
acceptable to each Lender.
"Quality Guarantee" has the meaning assigned to Garantia de Calidad in the
Public Works Contract.
"Real Estate Rights" has the meaning assigned to Derechos Inmobiliarios in
the Public Works Contract.
"Release" means the release, threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migrating into the indoor or outdoor environment of any Contaminant (including
the abandonment or discarding of barrels, drums, or other containers containing
any such Contaminant) through or in the air, soil, surface water, groundwater or
workplace.
"Remedial Action" means actions that are required under EHS Requirements,
or that are otherwise appropriate as a matter of prudent business practice and
commercial reasonableness, to (a) clean up, remove, treat or in any other way
address Contaminants in the indoor or outdoor environment (including the air,
soil, surface water or groundwater); (b) prevent the Release or minimize the
further Release of Contaminants; or (c) investigate and determine if a remedial
response is needed, design such a response, and perform post-remedial
investigation, monitoring, operation, maintenance and care.
"Reporting Party" has the meaning assigned thereto in Section 6.03(a)(ii).
21
"Representative" means (a) with respect to the Borrower, any Shareholder or
any Sponsor, any one of the individuals designated as such in the certificate of
such Person delivered pursuant to Section 4.01(d) or any other individual that
thereafter may be designated as such by such Person in a written notice
delivered to the Intercreditor Agent, and (b) with respect to any other Person,
the general director, the president, any vice president, secretary, chief
accountant, treasurer or any other officer of such Person who is responsible for
the financial affairs of such Person.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and bylaws or partnership agreement or limited liability company
agreement and certificate of formation or other organizational or governing
documents of such Person, and, as to any Person or the Project, any Law (other
than any EHS Requirement) applicable to or binding upon (a) such Person or any
of its properties or to which such Person or any of its properties is subject or
(b) the Project or any of its properties or to which the Project or any of its
properties is subject, including restrictive land use covenants and zoning, use
and building codes, laws, regulations and ordinances.
"Responsible Officer" when used with respect to either Collateral Agent or
the Offshore Depositary Bank, means any Vice President, Assistant Vice
President, the Secretary, any assistant secretary, or any officer, working in
its Corporate Trust Office and having responsibility for the administration of
this Common Agreement, and any other officer to whom a matter arising under this
Common Agreement may be referred.
"RFP" has the meaning assigned thereto in paragraph 1 of the Preliminary
Statements.
"S&P" means Standard & Poor's Ratings Service.
"Scheduled Project Completion Date" has the meaning assigned to Fecha
Programada de Culminacion del Proyecto in the Public Works Contract.
"Scheduled Provisional Acceptance Date" has the meaning assigned to any
Fecha Programada de Aceptacion Provisional in the Public Works Contract.
"Scheduled Provisional Acceptance Date of the First Unit" has the meaning
assigned to Fecha Programada de Aceptacion Provisional de la Primera Unidad in
the Public Works Contract.
"Secured Parties" means, collectively, the Lenders and the Lender
Representatives.
"Security" means any shares, partnership interests, membership interests,
stock, bonds, debentures, notes, evidences of indebtedness or any other
instruments commonly known as "securities".
"Security Documents" means the Depositary Agreement, the U.S. Security
Agreement, the Subordination Agreement, the Mexican Security Documents and any
other security agreement, pledge agreement, mortgage, deed of trust or similar
agreement or instrument that may be executed by the Borrower in favor of the
Offshore Collateral Agent or the Onshore Collateral Agent for the benefit of all
or any Lenders from time to time.
22
"Shareholders" means, collectively, Piadisa, ICASA, Peninsular and any
other Person that becomes a shareholder in the Borrower as permitted by this
Common Agreement.
"Signing Date" means the date of execution of this Common Agreement by the
parties hereto.
"Site" has the meaning assigned to Sitio in the Public Works Contract.
"Sponsor Guarantees" means, collectively, the ICA Guarantee and the
Nacional Guarantee.
"Sponsors" means, collectively, ICA, Nacional and Alcance.
"Stock Pledge Agreement" means the pledge agreement made by Piadisa, ICASA
and Peninsular in favor of the Onshore Collateral Agent, in form and substance
acceptable to each Lender.
"Subordinated Debt" means Debt or Contractual Obligations of the Borrower
that are (i) subordinated to the obligations of the Borrower under the Financing
Documents on terms and conditions set forth in the Subordination Agreement (or
other terms of subordination acceptable to the Intercreditor Agent) and (ii)
regarding which a perfected, first priority Lien has been established in favor
of the Offshore Collateral Agent or the Onshore Collateral Agent, as directed by
the Intercreditor Agent following written consultation with the Borrower.
"Subordinated Debt Documents" means all agreements and instruments
evidencing or relating to Subordinated Debt, which shall be in form and
substance reasonably acceptable to the Intercreditor Agent.
"Subordination Agreement" means the subordination agreement among, inter
alia, the Borrower, ICA, Nacional, Alcance, Piadisa, ICASA, Peninsular, CHLY,
the Intercreditor Agent, the Onshore Collateral Agent and the Offshore
Collateral Agent, in form and substance acceptable to each Lender.
"Subsidiary" means, with respect to any Person:
(a) any corporation of which at least a majority of the total ordinary
voting power to vote in the election of directors of a corporation (irrespective
of whether at the time shares of any other class or classes of such corporation
might have voting power by reason of the happening of any contingency, unless
the contingency has occurred and then only for as long as it continues) is at
the time directly, indirectly or beneficially owned or controlled by such Person
or one or more of its Subsidiaries, or such Person and one or more of its
Subsidiaries;
(b) any partnership of which such Person or one or more of its
Subsidiaries, or such Person and one or more of its Subsidiaries: (i) directly,
indirectly or beneficially own or control more than 50% of the income, capital,
beneficial or ownership interests (however designated, including partes
sociales) thereof; or (ii) is a general partner, in the case of a limited
partnership, or is a partner that has authority to the bind the partnership, in
all other cases; or
23
(c) any other person of which at least a majority of the income, capital,
beneficial or ownership interests (however designated, including partes
sociales) are at the time directly, indirectly or beneficially owned or
controlled by such Person or one or more of its Subsidiaries, or such Person and
one or more of its Subsidiaries.
"Taking" means any circumstance or event in consequence of which the
Project or any portion thereof shall be condemned, nationalized, seized,
compulsorily acquired or otherwise expropriated by any Governmental Authority
under power of eminent domain or otherwise.
"Termination Value" has the meaning assigned to Valor de Terminacion in the
Public Works Contract.
"Tests" has the meaning assigned collectively to Pruebas, Pruebas de
Desempeno, Pruebas de Operacion and Pruebas de Puesta en Servicio in the Public
Works Contract.
"Third Party Consents" means, collectively, (i) the Acknowledgement and
Consent Agreements made in favor of the Offshore Collateral Agent and the
Onshore Collateral Agent for the benefit of the Lenders by each Principal
Subcontractor, in form and substance acceptable to each Lender and (ii) the
Acknowledgement and Consent Agreements made in favor of the Offshore Collateral
Agent and the Onshore Collateral Agent by each party (other than the Borrower)
to each Additional Project Contract that is required to be pledged hereunder,
each in substantially the form of Exhibit A hereto or otherwise in form and
substance acceptable to the Intercreditor Agent.
"Transaction Documents" means, collectively, the Financing Documents and
the Project Documents.
"Type" means, as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"U.K. GAAP" means generally accepted accounting principles in the United
Kingdom as in effect and as may be modified from time to time.
"U.S. Dollars" or "U.S.$" means the lawful currency of the United States of
America.
"U.S. GAAP" means generally accepted accounting principles in the United
States of America as in effect and as may be modified from time to time.
"U.S. Security Agreement" means the security agreement executed by the
Borrower in favor of the Offshore Collateral Agent, in form and substance
acceptable to each Lender.
"VAT Receivables" means on any date all amounts that the Borrower is
entitled to receive from the government of Mexico as a refund of value added
taxes (impuesto al valor agregado).
"WestLB Fee Letter" means that certain letter agreement dated October 19,
2007 between the Borrower, ICA and WestLB AG, New York Branch.
24
"Working Capital Facility Administrative Agent" has the meaning assigned
thereto in clause (v) of the introductory paragraph to this Common Agreement.
"Working Capital Facility Borrowing" means a borrowing under the Working
Capital Facility Credit Agreement consisting of Working Capital Loans of the
same Type and Interest Period and made on the same day by one or more Working
Capital Facility Lenders, as thereafter continued and/or converted.
"Working Capital Facility Collateral" has the meaning assigned thereto in
the Intercreditor Agreement.
"Working Capital Facility Commitment" has the meaning assigned thereto in
the Working Capital Facility Credit Agreement.
"Working Capital Facility Credit Agreement" means the credit agreement
dated as of October 19, 2007 (as amended, supplemented or otherwise modified
from time to time), among the Borrower, the Working Capital Facility Lenders and
the Working Capital Facility Administrative Agent.
"Working Capital Facility Lender" has the meaning assigned thereto in
clause (iii) of the introductory paragraph to this Common Agreement.
"Working Capital Facility Lender Default Rate" means, on any date of
determination, with respect to any amount payable to any Working Capital
Facility Lender, the rate per annum equal to the sum of (a) the ABR in effect on
such date plus (b) the Applicable Margin (as defined in the Working Capital
Facility Credit Agreement) for ABR Loans in effect on such date plus (c) 2.00%.
"Working Capital Facility Loan Documents" means, collectively, the Working
Capital Facility Credit Agreement, the Notices of Borrowing issued in connection
with any Working Capital Facility Borrowing and the notices of continuation
and/or conversion issued in connection with any Working Capital Loan.
"Working Capital Facility Majority Lenders" means, at any time, Working
Capital Facility Lenders having more than fifty percent (50%) of (a) the
aggregate outstanding Working Capital Facility Commitments and (b) the aggregate
principal amount of all outstanding Working Capital Loans.
"Working Capital Facility Notice of Borrowing" has the meaning assigned
thereto in the Working Capital Facility Credit Agreement.
"Working Capital Facility Obligations" means all Obligations in favor of
the Working Capital Facility Administrative Agent, the Working Capital Facility
Lenders or, as applicable, the Intercreditor Agent for the benefit of the
Working Capital Facility Administrative Agent or Working Capital Facility
Lenders.
"Working Capital Facility Percentage" has the meaning set forth in the
Working Capital Facility Credit Agreement.
25
"Working Capital Facility Required Lenders" means, at any time, Working
Capital Facility Lenders having more than seventy-five percent (75%) of (a) the
aggregate outstanding Working Capital Facility Commitments and (b) the aggregate
principal amount of all outstanding Working Capital Loans.
"Working Capital Loans" has the meaning assigned thereto in the Working
Capital Facility Credit Agreement.
"Works" has the meaning assigned thereto in the Public Works Contract.
Section 1.02. Accounting Principles and Terms. Except as otherwise provided
in this Common Agreement, (a) all computations and determinations as to
financial matters, and all financial statements to be delivered under this
Common Agreement or any other Financing Document, shall be made or prepared in
accordance with the Applicable GAAP, or, with respect to the financial
statements of the Borrower and ICA to be delivered pursuant to Section
6.03(a)(iii) only, Mexican GAAP reconciled to U.S. GAAP, (including principles
of consolidation where appropriate but excluding footnote disclosure on interim
financial statements) and on a consistent basis, and (b) all accounting terms
used in this Common Agreement or any other Financing Document shall have the
meanings respectively ascribed to such terms by such principles.
Section 1.03. Rules of Construction. When used in this Common Agreement:
(a) all terms defined in this Common Agreement in the singular shall have the
same meanings when used in the plural and vice versa; (b) the words "hereof,"
"herein," and "hereunder" and words of similar import when used in this Common
Agreement shall refer to this Common Agreement as a whole and not to any
particular provision of this Common Agreement, and section, subsection, schedule
and exhibit references are to this Common Agreement unless otherwise specified;
(c) unless otherwise defined therein, all terms defined in this Common Agreement
shall have the defined meanings when used in the Financing Documents or in any
certificate or other document made or delivered pursuant hereto; (d) "or" is not
exclusive; (e) a reference to a Law includes any amendment or modification to
such Law; (f) a reference to a Person includes its permitted successors and
permitted assigns; (g) a reference to an agreement, instrument or document shall
include such agreement, instrument or document as the same may be amended,
restated, modified or supplemented from time to time in accordance with its
terms and as permitted by the Financing Documents; and (h) the term "including"
means "including, without limitation"; (i) each reference to "days" shall mean
calendar days, unless the term "Business Days" is used; (j) each reference to a
time of day shall mean such time in New York City, New York, unless otherwise
specified; (k) in computation of time periods from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding"; (l) with respect to any term that is
defined by reference to any Project Document, for purposes hereof, such term
shall continue to have the original definition notwithstanding any termination,
modification or expiration of such Project Document, except to the extent the
parties hereto may otherwise agree in accordance with Section 10.01 hereof; and
(m) any reference in this Common Agreement, the Depositary Agreement or any
other Financing Document to the balance of any Account or the amount of funds on
deposit in such account shall include the aggregate balance of any sub-account
or sub-accounts thereof.
26
ARTICLE II
PARTICIPATION IN THE FINANCING OF THE PROJECT
Section 2.01. Procedures for Disbursement of Working Capital Loans.
(a) Actions to be taken by the Working Capital Facility Lenders.
Subject to the terms and conditions of this Common Agreement and the Working
Capital Facility Credit Agreement, each Working Capital Facility Lender
severally agrees to make its ratable share of the aggregate principal amount
requested to be disbursed by the Working Capital Facility Lenders in the
applicable Notice of Borrowing (not to exceed its respective Working Capital
Facility Percentage) available to the Working Capital Facility Administrative
Agent no later than 11:00 a.m. (New York City time) on the Working Capital
Facility Borrowing date requested in the applicable Interest Rate Notice in
accordance with the applicable provisions of the Working Capital Facility Credit
Agreement and, upon receipt of the proceeds thereof, the Working Capital
Facility Administrative Agent shall immediately transfer the net proceeds of the
same pursuant to Section 2.01(b).
(b) Actions to be taken by Working Capital Facility Administrative
Agent. Promptly after receipt of the proceeds of the Working Capital Loans made
on the date of each Working Capital Facility Borrowing, the Working Capital
Facility Administrative Agent (i) prior to the Construction Facility Closing
Date, shall transfer such amount to the account or accounts of the Borrower set
forth in the Working Capital Facility Notice of Borrowing and (ii) on and
following the Construction Facility Closing Date, shall deposit such proceeds
into the Dollar Construction Account. The working capital facility is a
revolving credit facility and Working Capital Loans may be repaid and reborrowed
as provided for herein and in the Working Capital Facility Credit Agreement.
Section 2.02. Procedures for Disbursements of Construction Loans.
(a) Actions to be taken by the Construction Facility Lenders. Subject
to the terms and conditions of this Common Agreement and the Construction
Facility Credit Agreement, each Construction Facility Lender severally agrees to
make its ratable share of the aggregate principal amount requested to be
disbursed by the Construction Facility Lenders in the applicable Notice of
Borrowing (not to exceed its respective Construction Facility Percentage)
available to the Construction Facility Administrative Agent no later than 11:00
a.m. (New York City time) on the Construction Facility Borrowing date requested
in the applicable Interest Rate Notice in accordance with the applicable
provisions of the Construction Facility Credit Agreement and, upon receipt of
the proceeds thereof, the Construction Facility Administrative Agent shall
immediately transfer the net proceeds of the same pursuant to Section 2.02(b).
(b) Actions to be taken by Construction Facility Administrative Agent.
Promptly after receipt of the proceeds of the Construction Loans made on the
date of each Construction Facility Borrowing pursuant to Section 2.02(a), the
Construction Facility Administrative Agent shall deposit such proceeds into the
Dollar Disbursement Account; provided, that, any proceeds that are to be applied
to the payment of Working Capital Facility Obligations shall be deposited with
the Working Capital Facility Administrative Agent.
27
ARTICLE III
PREPAYMENTS; TAXES
Section 3.01. Prepayments.
(a) Optional Prepayments of Loans. The Borrower may prepay (i) the
Construction Loans pursuant to the terms and conditions set forth in Section 2.4
of the Construction Facility Credit Agreement and (ii) the Working Capital Loans
pursuant to the terms and conditions set forth in Section 2.4 of the Working
Capital Facility Credit Agreement.
(b) Mandatory Prepayments.
(i) Upon the receipt by the Borrower, the Intercreditor Agent or
any Collateral Agent of any proceeds of (A) to the extent specified in the
Depositary Agreement (once executed), any insurance required to be applied
to the prepayment of the Loans, or (B) any award or payment on account of
any Taking, the same shall be applied immediately to the prepayment of the
Loans in accordance with Section 3.01(c) below.
(ii) Upon the receipt by any Member, the Intercreditor Agent or
any Collateral Agent of any payment of Termination Value under the Public
Works Contract or any other amounts paid by or on behalf of CFE to the
Consortium pursuant to the Public Works Contract (including payment of all
or any portion of the Contract Price but excluding any payment made by CFE
to the Borrower pursuant to Section 26.5 (other than any payment of all or
any portion of the Termination Value) or the final paragraph of Section
27.3 of the Public Works Contract), applicable Law or otherwise, the same
shall be applied immediately to the prepayment of the Loans in accordance
with Section 3.01(c) below.
(c) Application. All prepayments pursuant to Section 3.01(b) of this
Common Agreement shall be applied first to the prepayment of the outstanding
Construction Facility Obligations and second to prepayment of the outstanding
Working Capital Facility Obligations. All prepayments of Loans shall be applied
in accordance with the terms of the relevant Credit Agreement. The Intercreditor
Agent shall give prompt notice to each Lender and the Offshore Collateral Agent
of the amount of each prepayment made by the Borrower under this Section 3.01
and the required application thereof.
(d) Notice. Upon the receipt by the Borrower, any Member or any
Collateral Agent of any of the proceeds set forth in Section 3.01(b), such party
shall give immediate notice thereof to the Intercreditor Agent.
Section 3.02. Taxes.
(a) All payments made by the Borrower under the Financing Documents
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on any Secured
28
Party as a result of a present or former connection between the Secured Party
and the jurisdiction of the Governmental Authority imposing such tax (other than
any such connection arising solely from the Secured Party having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Common Agreement or any other Financing Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any
amounts payable to any Secured Party, (i) the amount payable to such Secured
Party shall be increased by such additional amounts ("Additional Amounts") as
may be necessary so that after making all required deductions (including
deductions applicable to Additional Amounts payable under this Section 3.02),
such Secured Party receives an amount equal to the amount it would have received
under this Common Agreement or any other Financing Document had no such
deductions or withholdings been made, (ii) the Borrower shall make such
deductions or withholdings, and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
laws. Notwithstanding the foregoing, if at the time of any Assignment prior to
the occurrence of an Event of Default, such Assignment would result in the
payment by the Borrower of Additional Amounts in excess of those payable to the
assignor pursuant to subparagraph (i) hereof, the Borrower shall not be liable
for such excess Additional Amounts; provided, however, that the Borrower shall
be liable to pay to such Assignee any increase in Additional Amounts that become
payable as a result of a Change in Law after the date of such Assignment.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Intercreditor Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof.
(d) The Borrower shall indemnify any Secured Party, within 30 days
after written demand therefor, for the full amount of any Non-Excluded Taxes or
Other Taxes paid by such Secured Party on or with respect to any payment by or
on account of any obligation of the Borrower hereunder (including Non-Excluded
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section 3.02), any penalties and interest (other than any penalties
and interest incurred as a result of such Secured Party's gross negligence or
willful misconduct) arising therefrom or with respect thereto, and any
reasonable expenses arising therefrom or with respect thereto, whether or not
such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender, or the
Lender Representative on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(e) A Lender that is entitled to an exemption from or reduction of
Mexican withholding tax, or eligible for benefits under any treaty to which
Mexico is a party, with respect to payments under this Common Agreement shall
deliver to the Borrower (with a copy to the Intercreditor Agent and the relevant
Facility Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed
29
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation.
In addition, each Lender (or Assignee or Participant), if requested by the
Borrower, the Intercreditor Agent or the relevant Facility Administrative Agent
(or in the case of a Participant, to the Lender from which the related
participation shall have been purchased) shall deliver such other documentation
prescribed by applicable Law or reasonably requested by such parties as will
enable such parties to determine whether or not such Lender (or Assignee or
Participant) is subject to U.S. backup withholding. Notwithstanding Section
3.02(a), a Lender shall not be entitled to receive Additional Amounts to the
extent such Additional Amounts would not have been payable but for the Lender's
failure to comply with the provisions of this Section 3.02(e).
(f) The agreements in this Section shall survive the termination of
this Common Agreement and the payment of the Loans and all other amounts payable
under the Financing Documents.
Section 3.03. Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Common Agreement or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 3.02 and changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify the Borrower (with a copy to the
Intercreditor Agent, the Construction Facility Administrative Agent and the
Working Capital Facility Administrative Agent) of the event by reason of which
it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or
30
compliance by such Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any Governmental Authority made subsequent to the date hereof shall
have the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Construction
Facility Lender's or such corporation's policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time to
time, after submission by such Lender to the Borrower (with a copy to the
Intercreditor Agent, the Construction Facility Administrative Agent and the
Working Capital Facility Administrative Agent) of a written request therefor,
the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such corporation for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Intercreditor Agent, the Construction Facility Administrative Agent and the
Working Capital Facility Administrative Agent) shall be conclusive in the
absence of manifest error. Notwithstanding anything to the contrary in this
Section, the Borrower shall not be required to compensate a Lender pursuant to
this Section for any amounts incurred more than twelve months prior to the date
that such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; provided that, if the circumstances giving rise to such
claim have a retroactive effect, then such twelve-month period shall be extended
to include the period of such retroactive effect. The obligations of the
Borrower pursuant to this Section shall survive the termination of this Common
Agreement and the payment of the Loans and all other amounts payable under the
Financing Documents.
31
Section 3.04. Indemnity. The Borrower agrees to indemnify each Lender for,
and to hold each Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Common Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given a
notice thereof in accordance with the provisions of this Common Agreement or (c)
the making of a prepayment of Eurodollar Loans on a day that is not the last day
of an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin (as defined in the relevant Credit Agreement) included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) that would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. A certificate as to any amounts payable pursuant to
this Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of the
Financing Documents and the payment of the Loans and all other amounts payable
under the Financing Documents.
Section 3.05. Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 3.02(a) or 3.03
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 3.02(a) or 3.03.
Section 3.06. Replacement of Lenders. The Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant to
Section 3.02(a) or 3.03, (b) defaults in its obligation to make Loans hereunder,
or (c) does not consent to any proposed amendment, supplement, modification,
consent or waiver of any provision of this Common Agreement or any other
Financing Document that requires the consent of all of the Construction Facility
Lenders and/or Working Capital Facility Lenders, as the case may be, or each of
the Construction Facility Lenders and/or Working Capital Facility Lenders, as
the case may be, affected thereby (so long as the consent of the Construction
Facility Required Lenders or Working Capital Required Lenders, as the case may
be, has been obtained), with a replacement financial institution; provided that
(i) such replacement does not conflict with any Requirement of Law, (ii) no
Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall have taken
no action under Section 3.05 so as to eliminate the continued need for payment
of amounts owing pursuant to Section 3.02(a) or 3.03, (iv) the replacement
financial institution shall purchase, at par, all Loans
32
and other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 3.04 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution shall be reasonably satisfactory to
the Intercreditor Agent and the relevant Facility Administrative Agent, (vii)
the replaced Lender shall be obligated to make such replacement in accordance
with the provisions of Section 10.5 of the Credit Agreements (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 3.02(a) or 3.03, as the case may be, and (ix) any such replacement shall
not be deemed to be a waiver of any rights that the Borrower, the Intercreditor
Agent, the relevant Facility Administrative Agent or any other Lender shall have
against the replaced Lender.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to the Initial Closing Date and the
Initial Working Capital Facility Borrowing. The Initial Closing Date and the
initial Working Capital Facility Borrowing are subject to satisfaction of each
of the conditions set forth below (provided, that, each agreement, document,
certificate, instrument, etc. delivered pursuant to this Section 4.01 shall be
in form and substance satisfactory to each Lender (except that each agreement,
document, certificate, instrument, etc. set forth exclusively in Section 4.1 of
the Working Capital Facility Credit Agreement shall be in form and substance
satisfactory to each Working Capital Facility Lender) and shall be delivered in
sufficient copies for each Secured Party):
(a) Each of this Common Agreement, the Working Capital Credit
Agreement, the Construction Facility Credit Agreement and all other Financing
Documents (other than the Security Documents, the CFE Notice, the Third Party
Consents and the Intercreditor Agreement) shall have been duly executed and
delivered by each party hereto or thereto, as the case may be.
(b) The Intercreditor Agent shall have received copies of the
following Project Documents (including all exhibits, appendices and schedules
attached to each such document), duly executed by each of the parties thereto:
(i) the Public Works Contract, together with a true, correct and
complete English translation of the Public Works Contract (including Annex
14 thereto but excluding all other Annexes, the Bid and the RFP);
(ii) the Performance Guarantee in an amount not less than the
amount required pursuant to the Public Works Contract and expiring not
before December 31, 2007 and a waiver letter from each issuer and
confirming party thereof (substantially in the form of Exhibit C, or
otherwise in form and substance satisfactory to the Intercreditor Agent);
(iii) the Consortium Agreement; and
33
(iv) the Principal Subcontracts.
together with a certificate of a Representative of the Borrower stating that (i)
such copies and such translation are true, correct and complete, (ii) each such
Project Document is in full force and effect, (iii) all conditions precedent to
obligations of the parties thereunder shall have been satisfied or waived in
accordance with the terms thereof, and (iv) there are no other material
contracts existing as of the Initial Closing Date in connection with the
development, construction and completion of the Project.
(c) The Intercreditor Agent shall have received (i) copies of the
organizational documents of the Borrower (including any shareholder agreement),
each Shareholder and each Sponsor (as amended, modified or supplemented on or
prior to the Initial Closing Date) and of the Consortium Agreement, in each case
certified to be true, correct and complete as of the Initial Closing Date by a
Representative of the Borrower, such Shareholder or such Sponsor, as applicable,
and (ii) copies of all resolutions or other appropriate authorizing actions
taken by or on behalf of the Borrower, each Shareholder and each Sponsor
authorizing and approving the execution, delivery and performance of the
Financing Documents delivered pursuant to Section 4.01(a) and the Project
Documents delivered pursuant to Section 4.01(b) to which the Borrower, such
Shareholder or such Sponsor, as applicable, is a party, which resolutions or
authorizing actions have not been revoked, modified, amended or rescinded and
are in full force and effect as of the Initial Closing Date, in each case,
certified by an authorized officer of the Borrower, such Shareholder or such
Sponsor, as applicable.
(d) The Intercreditor Agent shall have received a certificate of an
authorized officer of the Borrower, each Shareholder and each Sponsor, dated the
Initial Closing Date, certifying the names and true signatures of the incumbent
officers of the Borrower, such Shareholder or such Sponsor, as applicable, who
are authorized to sign the Transaction Documents to which the Borrower, such
Shareholder or such Sponsor is or is intended to become a party.
(e) The Intercreditor Agent shall have received copies of all
Governmental Approvals, including all EHS Permits, that are either required to
be obtained on or before the date on which the Initial Closing Date occurs or
are required to be obtained at any time and are obtainable on such date under
applicable Law (except for the Designated Jalisco Permit) by the Borrower, any
Principal Subcontractor, a subcontractor to any Principal Subcontractor or a
service provider to any Principal Subcontractor (and, to the extent the Borrower
has received the same, by CFE), as the case may be, under applicable Law for the
development, construction and completion of the Project, which Government
Approvals are specified in Part A of Schedule 5.01(c) hereto, together with a
certificate of a Representative of the Borrower to the effect that (i) such
copies are true, correct and complete copies of such Governmental Approvals and
(ii) each such Governmental Approval is in full force and effect. In addition,
the Intercreditor Agent shall have received a certificate of a Representative of
the Borrower certifying that the Governmental Approvals that are listed in Part
B of Schedule 5.01(c) are neither required to be obtained nor obtainable under
applicable Law prior to the Initial Closing Date, but will be obtainable by the
Borrower, any Principal Subcontractor, a subcontractor to any Principal
Subcontractor or a service provider to any Principal Subcontractor or, to the
best knowledge of the Borrower, by CFE, as applicable, in due course as such
Governmental Approvals become obtainable and prior
34
to the date on which such Governmental Approvals shall be required in connection
with the transactions contemplated by the Transaction Documents.
(f) The Intercreditor Agent shall have received from the Independent
Engineer (i) a favorable report, addressed to the Secured Parties, as to such
technical matters with respect to the Project as the Intercreditor Agent shall
reasonably request, including (A) the feasibility of the Project to be
constructed in accordance with the Public Works Contract, (B) the design
procedures, fabrication methods and quality control procedures of Power Machines
(and any relevant subcontractors) with respect to the turbines, generators and
other major electromechanical equipment proposed to be used under the Public
Works Contract and to be provided pursuant to the Electromechanical Contract,
and (C) the adequacy of (1) the Contract Price proposed by the Borrower in the
Bid and (2) the Construction Budget and (ii) a favorable opinion of the
Independent Engineer that the financing provided by the Lenders under the
Financing Documents is sufficient to finance all Project Costs incurred and to
be incurred on and prior to the Project Completion.
(g) The Intercreditor Agent shall have received an EHS Report from the
Environmental Consultant, addressed to the Secured Parties, demonstrating to the
satisfaction of the Intercreditor Agent that the Borrower and the Project are in
compliance with all EHS Requirements applicable to the Borrower and the Project.
(h) The Intercreditor Agent shall have received a favorable report
from the Insurance Consultant, addressed to the Secured Parties, stating that
all insurance policies required by Section 6.01(d) to be obtained prior to the
Initial Closing Date have been obtained, are adequate for the Project, have been
paid to the extent due and payable on or prior to the Initial Closing Date, are
in full force and effect, contain the respective provisions specified in Section
6.01(d) to be contained therein and covering such other matters as may be
requested by the Intercreditor Agent, together with a certificate of the
Borrower's insurance broker or each insurer or such insurer's authorized
representative certifying to the Secured Parties that the insurance specified in
such certificate is in full force and effect, and that all premiums on such
insurance are current.
(i) The Intercreditor Agent shall have received copies of the
Construction Budget and the Construction Schedule certified by a Representative
of the Borrower.
(j) The Intercreditor Agent shall have received the following legal
opinions, each dated as of a date acceptable to the Intercreditor Agent, and
covering, among other things, the validity, binding effect and enforceability of
the applicable Transaction Documents (other than the Security Documents, the CFE
Notice, the Third Party Consents and the Intercreditor Agreement):
(i) legal opinion of White & Case LLP, special New York counsel
to the Borrower and the Sponsors;
(ii) legal opinion of White & Case S.C., special Mexican counsel
to the Borrower, ICA, Nacional, Alcance, Piadisa, ICASA and Peninsular;
35
(iii) legal opinion of in-house counsel to each of ICA, Nacional,
Alcance, Piadisa, ICASA and Peninsular;
(iv) legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special New York
counsel to the Intercreditor Agent, the Working Capital Facility
Administrative Agent and the Construction Facility Administrative Agent;
and
(v) legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇, S.C., special Mexican counsel
to the Intercreditor Agent, the Working Capital Facility Administrative
Agent and the Construction Facility Administrative Agent.
(k) The Intercreditor Agent shall have received copies of (i) the
audited financial statements of each Reporting Party, each Principal
Subcontractor (other than CHLY) and RSW International Ltd. for the fiscal year
ending December 31, 2006, (ii) with respect to each issuer (and confirming
institution) of the Disbursement LCs or the Performance Guarantee (and any
commitment or undertaking to increase or replenish any of the same), evidence
that each such issuer or confirming institution is an Acceptable LC Provider,
(iii) the most recent publicly or otherwise available unaudited financial
statements of each Reporting Party and (iv) a balance sheet of CHLY dated the
Signing Date, in each case prepared in accordance with the Applicable GAAP and
with respect to all such financial statements, accompanied by a certificate from
a Financial Representative of each such Person stating (x) such financial
statements are true, complete and correct and (y) since the date of such
financial statements, no material adverse change has occurred in the business,
assets, operations, prospects or condition, financial or otherwise, of such
Person.
(l) The Intercreditor Agent shall have received (i) true, correct and
complete copies of the audited financial statements of CFE for the fiscal year
ending December 31, 2006, and (ii) the most recent publicly available financial
statements of CFE.
(m) All Fees and other amounts required to be paid or deposited with
the Intercreditor Agent, the Working Capital Facility Administrative Agent, the
Construction Facility Administrative Agent, either Collateral Agent or any
Lender and all Other Taxes, fees and other costs payable in connection with the
execution, delivery, and performance of the Transaction Documents (including all
amounts payable under Section 10.04) shall have been paid in full or
arrangements satisfactory to the Intercreditor Agent for the payment of the same
within two (2) Business Days following the Initial Closing Date with the
proceeds of the initial Working Capital Facility Borrowing shall have been made.
(n) The Intercreditor Agent shall have received (i) a letter from CT
Corporation System evidencing its agreement to act as Process Agent in New York
for the Borrower and each Sponsor and (ii) a power of attorney from the Borrower
and each Sponsor organized under the laws of Mexico which shall be sufficient
for purposes of Mexican law to validate the appointment of the Process Agent.
(o) The Intercreditor Agent shall be satisfied that the Sponsors have
made available to the Borrower senior managers reasonably acceptable to the
Intercreditor Agent to
36
manage the performance of the Borrower's obligations under the Public Works
Contract, the names and positions of which are listed in Schedule 4.01(o)
hereto.
(p) The conditions set forth in Section 4.02 of this Common Agreement
and Section 4.1 of the Working Capital Facility Credit Agreement shall have been
satisfied.
Section 4.02. Conditions Precedent to Each Working Capital Facility
Borrowing. Each Working Capital Facility Borrowing is subject to satisfaction of
each of the conditions set forth below:
(a) The Working Capital Facility Administrative Agent and the
Independent Engineer shall have received a Working Capital Facility Notice of
Borrowing, duly executed by the Borrower;
(b) Each of the conditions set forth in Section 4.2 of the Working
Capital Facility Credit Agreement shall be satisfied; and
(c) Each of the conditions set forth in Section 4.05 of this Common
Agreement shall be satisfied.
Section 4.03. Conditions Precedent to the Construction Facility Closing
Date and the Initial Construction Facility Borrowing. The Construction Facility
Closing Date and the initial Construction Facility Borrowing thereunder are
subject to satisfaction of each of the conditions set forth below (provided,
that, each agreement, document, certificate, instrument, etc. delivered pursuant
to this Section 4.03 shall be in form and substance satisfactory to each Lender
and shall be delivered in sufficient copies for each Secured Party):
(a) Each of the Transaction Documents (other than those duly executed
and delivered pursuant to Sections 4.01(a) and 4.01(b)) shall have been duly
executed and delivered by each party hereto or thereto, as the case may be.
(b) The Intercreditor Agent shall have received the Security
Documents, the CFE Notice and the Third Party Consents duly executed by the
respective parties thereto. Any document required to be filed, registered,
notarized or recorded in order to create and perfect the Liens in favor of
either Collateral Agent for the benefit of the Secured Parties granted pursuant
to the Security Documents shall have been properly filed, registered, notarized
or recorded in each office in each jurisdiction in which such filings,
registrations, notarizations or recordings are required, and any other action
required in the judgment of the Intercreditor Agent to perfect such Liens shall
have been effected, and the Intercreditor Agent shall have received
acknowledgment copies or other evidence satisfactory to it that all necessary
filing, registration, notarization, recording and other fees and all taxes and
expenses related to such filings, registrations, notarizations and recordings
have been paid in full; provided that, with respect to the Borrower Pledge
Agreement, the PWC Pledge Agreement and the Stock Pledge Agreement, completion
of registration shall not be required as a condition to the Construction
Facility Closing Date and the initial Construction Facility Borrowing
thereunder. The Intercreditor Agent shall have received the results of Lien
searches conducted in Mexico no more than thirty (30) days prior to the
Construction Facility Closing Date in each relevant jurisdiction with respect to
each Member and
37
such results shall reveal no Liens on any of the assets of the Borrower or on
any other Collateral other than, in each case, Permitted Liens.
(c) The Intercreditor Agent shall have received the Intercreditor
Agreement, duly executed by the parties thereto.
(d) The Intercreditor Agent shall have received copies of all
resolutions or other appropriate authorizing actions taken by or on behalf of
the Borrower, each Member, each Shareholder and each Sponsor authorizing and
approving the execution, delivery and performance of all Security Documents, the
CFE Notice and each Third Party Consent to which the Borrower, such Member, such
Shareholder or such Sponsor, as applicable, is a party, which resolutions or
authorizing actions have not been revoked, modified, amended or rescinded and
are in full force and effect as of the Construction Facility Closing Date, in
each case, certified by an authorized officer of the Borrower, such Shareholder
or such Sponsor, as applicable.
(e) The Intercreditor Agent shall have received the following legal
opinions, each dated as of a date acceptable to the Intercreditor Agent, and
covering, among other things, the validity, binding effect and enforceability of
the Security Documents, the CFE Notice and the Third Party Consents and the
creation and perfection of security interests thereunder:
(i) legal opinion of the chief in-house legal counsel
(coordinador de asuntos juridicos) to CFE;
(ii) legal opinion of White & Case LLP, special New York counsel
to the Borrower and the Sponsors;
(iii) legal opinion of White & Case S.C., special Mexican counsel
to the Borrower, ICA, Nacional, Alcance, Piadisa, ICASA and Peninsular;
(iv) legal opinion of in-house counsel to each of ICA, Nacional,
Alcance, Piadisa, ICASA, Peninsular, Power Machines and CHLY;
(v) legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special New York
counsel to the Intercreditor Agent, the Working Capital Facility
Administrative Agent and the Construction Facility Administrative Agent;
(vi) legal opinion of special New York counsel to the Offshore
Collateral Agent and Offshore Depositary Bank, which counsel is acceptable
to the Intercreditor Agent; and
(vii) legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇, S.C., special Mexican
counsel to the Intercreditor Agent, the Working Capital Facility
Administrative Agent and the Construction Facility Administrative Agent.
(f) All Fees and other amounts required to be paid or deposited with
the Construction Facility Administrative Agent or any Construction Facility
Lender and all taxes, fees and other costs payable in connection with the
execution, delivery, and performance of the Transaction Documents (including all
amounts payable under Section 10.04) shall have been
38
paid in full or arrangements satisfactory to the Intercreditor Agent for the
payment of the same within two (2) Business Days following the Construction
Facility Closing Date shall have been made.
(g) The Accounts shall have been established in accordance with the
Depositary Agreement.
(h) The Intercreditor Agent shall have received (i) a letter from CT
Corporation System evidencing its agreement to act as Process Agent in New York
for the Borrower, each Member, each Shareholder, each Sponsor and CHLY, and (ii)
a power of attorney from the Borrower and CHLY and each Member, Shareholder and
Sponsor organized under the laws of Mexico which shall be sufficient for
purposes of Mexican law to validate the appointment of the Process Agent.
(i) The Intercreditor Agent shall have received the results of Lien
searches conducted in the United States no more than thirty (30) days prior to
the date of such Borrowing and such results shall reveal no Liens on any of the
assets of the Borrower other than Permitted Liens.
(j) The conditions set forth in Section 4.04 of this Common Agreement
and Section 4.1 of the Construction Facility Credit Agreement shall have been
satisfied and the Initial Closing Date shall have occurred.
Section 4.04. Conditions Precedent to Each Construction Facility Borrowing.
Each Construction Facility Borrowing is subject to satisfaction of each of the
conditions set forth below:
(a) The Construction Facility Administrative Agent and the Independent
Engineer shall have received a Construction Facility Notice of Borrowing, duly
executed by the Borrower.
(b) The proceeds of such Construction Facility Borrowing shall be used
solely to repay outstanding Obligations (other than the repayment or prepayment
of any Construction Loans) and any Non-Excluded Taxes.
(c) After giving effect to such Construction Facility Borrowing, the
amount of all Construction Loans outstanding and all accrued but unpaid Debt
Service in respect of such Construction Loans shall be no greater than the
product of ninety percent (90%) times the lesser of (i) the Accumulated Value
and (ii) the Contract Price (including all adjustments to the same pursuant to
the Public Works Contract).
(d) The Construction Facility Administrative Agent shall have
received, no later than three (3) Business Days prior to such Construction
Facility Borrowing, a certificate of the Independent Engineer (i) confirming the
Accumulated Value as of the date of the Independent Engineer's certificate, (ii)
indicating that, in the opinion of the Independent Engineer, the Provisional
Acceptance of the First Unit is expected to occur not later than the Scheduled
Provisional Acceptance Date of the First Unit (as the same may be extended for
Permissible Provisional Acceptance Delays), and (iii) indicating that, in the
opinion of the Independent
39
Engineer, the Project Completion Date is expected to occur not later than the
Scheduled Project Completion Date (as the same may be extended for Permissible
Project Completion Delays).
(e) In the case of the second Construction Facility Borrowing to be
made pursuant to this Common Agreement only, the Intercreditor Agent shall have
received the results of Lien searches conducted in Mexico no more than
forty-five (45) days prior to the date of such Borrowing and such results shall
reveal no Liens on any of the assets of the Borrower other than Permitted Liens.
(f) Each of the conditions set forth in Section 4.2 of the
Construction Facility Credit Agreement and Section 4.05 of this Common Agreement
shall be satisfied.
Section 4.05. Conditions to Each Borrowing. Each Working Capital Facility
Borrowing and each Construction Facility Borrowing is subject to satisfaction of
each of the conditions set forth below:
(a) No circumstance or event that could reasonably be expected to have
a Material Adverse Effect shall have occurred and be continuing.
(b) All Governmental Approvals, including EHS Permits, that were not
obtained by the Borrower, CFE, any Principal Subcontractor, any subcontractor to
any Principal Subcontractor or any service provider to any Principal
Subcontractor, as the case may be, prior to the Initial Closing Date but that
are required to be obtained or are obtainable prior to the date of such
Borrowing (except, prior to the Construction Facility Closing Date, for the
Designated Jalisco Permit), have been duly obtained and all such Governmental
Approvals, whether obtained prior to, on or following the Initial Closing Date,
are in full force and effect.
(c) All of the Transaction Documents and each other agreement,
instrument and other document to be executed and delivered with respect to the
Project on or prior to the effecting of such Borrowing have been delivered
hereunder and under each other Financing Document and are in full force and
effect.
(d) The representations and warranties contained in Section 5.01 of
this Common Agreement and of the Borrower contained in the other Transaction
Documents are true and correct and the Borrower is in full compliance with the
covenants contained in Article VI of this Common Agreement on and as of the
Initial Closing Date and the date of such Borrowing, before and after giving
effect to such Borrowing, and to the application of the proceeds therefrom, as
though made on and as of such date or, if such representation or warranty
relates to an earlier date, as of such earlier date.
(e) To the best of the Borrower's knowledge, the representations and
warranties of each party to a Transaction Document (other than the Borrower)
contained in the Transaction Documents are true and correct on and as of the
Initial Closing Date and the date of such Borrowing, before and after giving
effect to such Borrowing, and to the application of proceeds therefrom, as
though made on and as of such date or, if such representation or warranty
relates to an earlier date, as of such earlier date.
40
(f) There has been no proposed or threatened change in or modification
of any applicable Law that in the reasonable opinion of the Intercreditor Agent
could be expected to be adopted and to have a Material Adverse Effect.
(g) No Default (other than any event or condition that, with the
passing of time, would constitute a Contractor PWC Event of Default but only to
the extent that such event or condition does not yet constitute a Contractor PWC
Event of Default) or Event of Default has occurred and is continuing, or would
result from the effecting of such Borrowing or from the application of the
proceeds thereof.
(h) The Intercreditor Agent shall have received an EHS Report from the
Environmental Consultant dated not more than ninety (90) days prior to the date
of such Borrowing.
(i) Except with respect to any Working Capital Facility Borrowing to
occur no later than sixty (60) days following the Signing Date, the
Intercreditor Agent shall have received, no later than three (3) Business Days
prior to such Borrowing, copies of the Monthly Report (including CFE recognition
of the same) describing progress in Work during the calendar month that is two
(2) months immediately preceding the calendar month in which such Borrowing is
to be made and a certificate of a Representative of the Borrower stating that
all such copies are true, correct and complete.
Section 4.06. Conditions Precedent Approval.
(a) Each agreement, document, certificate, instrument, etc. delivered
pursuant to Section 4.02 shall be in form and substance satisfactory to (i) in
the case of the initial Working Capital Facility Borrowing, each Lender (except
that each agreement, document, certificate, instrument, etc. set forth
exclusively in Section 4.2 of the Working Capital Facility Credit Agreement need
only be in form and substance satisfactory to each Working Capital Facility
Lender) and (ii) in the case of any subsequent Working Capital Facility
Borrowing, the Working Capital Facility Administrative Agent, and shall be
delivered in sufficient copies for each Secured Party.
(b) Each agreement, document, certificate, instrument, etc. delivered
pursuant to Section 4.04 shall be in form and substance satisfactory to (i) in
the case of the initial Construction Facility Borrowing, each Lender and (ii) in
the case of any subsequent Construction Facility Borrowing, the Construction
Facility Administrative Agent, and shall be delivered in sufficient copies for
each Secured Party.
(c) Each agreement, document, certificate, instrument, etc. delivered
pursuant to Section 4.05 shall be in form and substance satisfactory to (i) in
the case of the initial Working Capital Facility Borrowing or the initial
Construction Facility Borrowing, each Lender, (ii) in the case of any subsequent
Working Capital Facility Borrowing, the Working Capital Facility Administrative
Agent, and (iii) in the case of any subsequent Construction Facility Borrowing,
the Construction Facility Administrative Agent, and shall be delivered in
sufficient copies for each Secured Party.
41
Section 4.07. Reliance on Certificates. The Secured Parties shall be
entitled to rely conclusively upon the certificates delivered from time to time
by Representatives of the Borrower, the Shareholders and the Sponsors as to the
names, incumbency, authority and signatures of the respective persons named
therein until such time as any Secured Party may receive a replacement
certificate, in form acceptable to such Secured Party, from a Representative of
such Person identified to such Secured Party as having authority to deliver such
certificate, setting forth the names and true signatures of the officers and
other representatives of such Person thereafter authorized to act on behalf of
such Person.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants to each Secured Party as follows (such representations
and warranties being made as of the Signing Date, the Initial Closing Date, the
Construction Facility Closing Date and, except to the extent otherwise specified
herein, on each subsequent date on which such representations and warranties are
made or deemed to be made hereunder):
(a) The Borrower is a sociedad anonima de capital variable duly formed
and validly existing under the laws of Mexico and is duly qualified to do
business in all jurisdictions where the nature of its business or the nature of
property owned or used by it makes such qualifications necessary. The Borrower
has all requisite power and authority to own or hold under lease and operate the
property it purports to own or hold under lease and to carry on its business as
now being conducted and as proposed to be conducted in respect of the Project.
The Shareholders are the sole shareholders of the Borrower. The Borrower has no
Subsidiaries.
(b) The execution, delivery and performance by the Borrower of each
Transaction Document to which it is a party are within the corporate powers of
the Borrower, have been duly authorized by all necessary corporate action and do
not contravene any Requirement of Law, any EHS Requirement or any Contractual
Obligation (other than Clause 24.1(b) of the Public Works Contract (but only in
the event of the application of any casualty insurance proceeds to the mandatory
prepayment of amounts outstanding under the Financing Documents) and Clause
26.1(i) of the Public Works Contract (with respect to the covenant of the
Borrower under Section 6.02(l) hereof) but only in the event the Contractor
refuses to enter into any modification agreement required pursuant to the Public
Works Contract) binding on or affecting the Borrower or any of its properties or
assets, and such execution, delivery and performance do not and shall not result
in or require the creation of any Lien upon or with respect to any of the
properties of the Borrower, other than Permitted Liens, or result in the
acceleration of any obligation under, or in a condition or event that
constitutes (or that, upon notice or lapse of time or both, would constitute) an
event of default under, any Contractual Obligation of the Borrower (other than
Clauses 24.1(b) and 26.1(i) of the Public Works Contract to the extent described
above). This Common Agreement and each other executed Transaction Document to
which the Borrower is a party have been duly executed and validly delivered by
the Borrower. The Borrower is in compliance with and not in default under any
and all Requirements of Law and all material terms and provisions of its
Contractual Obligations.
42
(c) Governmental Approvals.
(i) All Governmental Approvals (including EHS Permits) and other
third-party consents and approvals, that are required to be obtained or
made by the Borrower, CFE or any Principal Subcontractor in connection with
(A) the development, construction, completion and financing of the Project
and (B) the making of Borrowings and granting of Liens under, and the
execution, delivery and performance by the Borrower of, the Transaction
Documents, are set forth in Schedule 5.01(c) hereto as in effect on the
Initial Closing Date (as such Schedule may be amended by the Borrower
following the Initial Closing Date to account for any change in Law). Each
of the Governmental Approvals and other consents and approvals (except,
prior to the Construction Facility Closing Date, for the Designated Jalisco
Permit) that are either required to be obtained on or before the date on
which the Initial Closing Date occurs or are required to be obtained at any
time and are obtainable on such date under applicable Law by the Borrower,
any Principal Subcontractor, any subcontractor to any Principal
Subcontractor or any service provider to any Principal Subcontractor, as
the case may be, is set forth in Part A of Schedule 5.01(c) hereto, has
been duly obtained by and is held in the name of the Borrower, such
Principal Subcontractor or any subcontractor or service provider to any
Principal Subcontractor, as required, was validly issued and is in full
force and effect. To the best of the Borrower's knowledge, each of the
Governmental Approvals and other consents and approvals set forth in Part A
of Schedule 5.01(c) hereto that is required to be obtained by CFE has been
duly obtained, was validly issued and is in full force and effect. The
Borrower, each relevant Principal Subcontractor and, to the best of the
Borrower's knowledge, CFE and each subcontractor or service provider to the
relevant Principal Subcontractor is in compliance with all Governmental
Approvals and other consents and approvals set forth in Part A of Schedule
5.01(c) hereto (except (other than in respect of any EHS Permits) for any
non-compliance that has not continued for the lesser of (x) thirty (30)
days or (y) such other period as would constitute a Material Adverse Effect
or give the relevant Governmental Authority the right to suspend or
terminate such Governmental Approval), no material change in the facts or
circumstances reported or assumed in the applications for or the granting
of such Governmental Approvals or other consents or approvals exists
(except such change that could not result in any revocation of such
Governmental Approval or other consent or approval or any fine, penalty or
other action being taken against the Borrower by any Governmental Authority
or other third-party), and there are no proceedings pending or, to the best
knowledge of the Borrower, threatened that would jeopardize the validity of
such Governmental Approvals or such other consents and approvals.
(ii) As of the Initial Closing Date, none of the Governmental
Approvals and other consents and approvals set forth in Part B of Schedule
5.01(c) hereto are either required to be obtained or are obtainable under
applicable Law on or prior to the Initial Closing Date. The Borrower does
not have any reason to believe that it or any Principal Subcontractor will
be unable to obtain or make the Governmental Approvals, consents and
approvals set forth in Part B of Schedule 5.01(c) hereto that it or such
Principal Subcontractor is required to obtain in the ordinary course of
business and at such time or times as may be necessary to avoid any
substantial delay in, or material impairment to, the consummation and
performance of the transactions as contemplated
43
by this Common Agreement and the other Transaction Documents. The Borrower
and each Principal Subcontractor has obtained or made and is in compliance
with all Governmental Approvals and other consents and approvals set forth
in Part B of Schedule 5.01(c) hereto that it or such Principal
Subcontractor is required to obtain or are obtainable (except (other than
in respect of any EHS Permits) for any non-compliance that has not
continued for the lesser of (x) thirty (30) days or (y) such other period
as would constitute a Material Adverse Effect or give the relevant
Governmental Authority the right to suspend or terminate such Governmental
Approval), each such Governmental Approval and other consent and approval
has been duly obtained by and is held in the name of the Borrower or
Principal Subcontractor, as the case may be, was validly issued, is in full
force and effect, no material change in the facts or circumstances reported
or assumed in the applications for or the granting of such Governmental
Approvals or other consents or approvals exists (except such change that
could not result in any revocation of such Governmental Approval or other
consent or approval or any fine, penalty or other action being taken
against the Borrower by any Governmental Authority or other third-party)
and there are no proceedings pending or, to the actual knowledge of the
Borrower, threatened that would jeopardize the validity of such
Governmental Approvals or such other consents and approvals.
(iii) The Borrower does not have any reason to believe that CFE
will be unable to obtain or make the Governmental Approvals, consents and
approvals set forth in Part B of Schedule 5.01(c) hereto that CFE is
required to obtain in accordance with the Public Works Contract and the
Construction Schedule.
(d) This Common Agreement and each other executed Transaction Document
to which the Borrower is a party are legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms, subject to the qualification, however, that the enforcement of the rights
and remedies herein and therein is subject to (i) bankruptcy and other similar
laws of general application affecting rights and remedies of creditors and (ii)
the application of general principles of equity (regardless of whether
considered in a proceeding in equity or at law). The Borrower has delivered to
the Intercreditor Agent true and complete copies of each executed Project
Document and, except as permitted pursuant to the terms of this Common
Agreement, none of such Project Documents has been amended, modified or
terminated. No Contractor PWC Event of Default or Commission PWC Event of
Default has occurred and is continuing.
(e) The Borrower has no material liabilities or other obligations,
including contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from unfavorable
commitments, other than pursuant to the Transaction Documents.
(f) The Construction Budget and the Construction Schedule, as
delivered hereunder, (i) were prepared in good faith by the Borrower and on
assumptions made in the best judgment of the Borrower and (ii) are consistent
with the provisions of the Project Documents. Based on the facts and
circumstances known to the Borrower, the Construction Budget sets forth all
Project Costs the Borrower reasonably anticipates to be incurred in connection
with the development, construction and commissioning of the Project. The
financial statements of the
44
Borrower most recently delivered pursuant to Section 6.03(a)(ii), 6.03(a)(iii)
or Section 4.01(l), as the case may be, fairly present the financial condition
of the Borrower as of the date of such financial statements. There are no
statements, assumptions or conclusions in any projections contained in the
Construction Budget, the Construction Schedule or such financial statements that
were based upon or include information known to the Borrower (at the time such
Construction Budget, Construction Schedule or financial statements were
delivered) to be misleading or that failed to take into account material
information regarding the matters reported therein.
(g) There is no (i) injunction, writ, preliminary restraining order or
any order of any nature issued by an arbitrator, court or other Governmental
Authority applicable to the Borrower, the Project, the other Credit Parties, the
Shareholders or, to the best of the Borrower's knowledge without independent
investigation, any other Project Party, directing that the transactions provided
for herein or in any other Transaction Document not be consummated as herein or
therein provided, or (ii) litigation, investigation or proceedings of or before
any arbitrator, court or other Governmental Authority pending or threatened
against the Borrower, the Project, the other Credit Parties, the Shareholders
or, to the best of the Borrower's knowledge without independent investigation,
pending or threatened against any other Project Party, with respect to this
Common Agreement or the Transaction Documents or any of the transactions
contemplated hereby or thereby.
(h) To the best of the Borrower's knowledge, there are no facts or
circumstances that individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect.
(i) The sole business of the Borrower is the development, construction
and testing of the Project.
(j) Except as specifically disclosed in Schedule 5.01(j):
(i) The Project and the Borrower comply, and at all times have
complied, with all EHS Requirements and Governmental Approvals applicable
to the Borrower and the Project (except, prior to the Construction Facility
Closing Date, for obtaining the Designated Jalisco Permit and except (other
than in respect of any EHS Permits) for any non-compliance that has not
continued for the lesser of (x) thirty (30) days or (y) such other period
as would constitute a Material Adverse Effect or give the relevant
Governmental Authority the right to suspend or terminate such Governmental
Approval);
(ii) To the best knowledge of the Borrower after reasonable
investigation, all of the third parties with which Borrower has arranged,
engaged or contracted to accept, transport, treat, store, dispose or
remediate or remove any Contaminant generated or present at the Project, or
that otherwise participate or have participated in activities or conduct
related to the Property, possessed all required EHS Permits and complied
with all EHS Requirements at the relevant time to perform the foregoing
activities or conduct;
45
(iii) Neither the Borrower nor, to the best knowledge of the
Borrower after reasonable investigation, the Project is the subject of any
suit, claim, proceeding, citation, directive, summons, order, judgment,
decree, settlement, writ, or injunction, and the Borrower is not aware of
any pending or threatened investigation, alleging or addressing in
connection with the Project (x) any violation of any EHS Requirements, (y)
any Remedial Action or EHS Damages, or (z) any Release of any Contaminant;
(iv) The Borrower has not received any EHS Notice, claim or
written notice of any potential Environmental Lien or other communication
in connection with the Project concerning (x) alleged violation of any EHS
Requirement, whether or not corrected to the satisfaction of the
appropriate authority, (y) alleged liability of the Borrower for any
Remedial Action or EHS Damages, or (z) alleged liability of the Borrower
for the Release of a Contaminant;
(v) To the best knowledge of the Borrower after reasonable
investigation, no Environmental Lien has attached to the Property;
(vi) To the best knowledge of the Borrower after reasonable
investigation, there has been no Release of any Contaminants at, to or from
the Project except pursuant to and in full compliance with an EHS Permit
and there are no EHS Damages;
(vii) The Borrower has not transported or arranged for the
transport of any Contaminant to any facility or site which facility or site
is or was, at the time of transport of the Contaminant, subject to a
Remedial Action requirement (other than routine, anticipated,
closure-related corrective action obligations affecting closed solid waste
management units at such facility) issued under any state, local or foreign
solid or hazardous waste regulatory law;
(viii) Neither the Borrower nor any person acting on behalf of
the Borrower nor, to the best knowledge of the Borrower, any other Person
has constructed, placed, deposited, stored, disposed or located at the
Project any asbestos-containing material or any landfills or dumps other
than any sanitary landfill duly authorized by the relevant Governmental
Authority and operated in full compliance with EHS Requirements;
(ix) To the best knowledge of the Borrower after reasonable
investigation, no underground improvements, including but not limited to
treatment or storage tanks, sumps, or water, gas or oil ▇▇▇▇▇, or
associated piping, are or have ever been located at the Property other than
any water treatment plant duly authorized by the relevant Governmental
Authority and operated in full compliance with EHS Requirements;
(x) Neither the Borrower nor any person acting on behalf of the
Borrower nor, to the best knowledge of the Borrower, any other Person has
constructed, placed, deposited, released, stored, disposed, or located at
the Property any
46
polychlorinated biphenyls or transformers, capacitors, ballasts, or other
equipment that contain dielectric fluid containing polychlorinated
biphenyls;
(xi) The Borrower has no liability and the Borrower has not
received and is otherwise not aware of any notice, claim or other
communication alleging liability on the part of the Borrower for the
violation of any EHS Requirement, for EHS Damages, or for the Release of
any Contaminant in connection with any businesses or any properties
presently or formerly owned or operated by the Borrower;
(xii) No EHS Permits require consent, notification or other
action to remain in full force and effect following the consummation of the
transactions contemplated by the Transaction Documents except for those
ongoing actions by CFE required of CFE by any Governmental Authority as
conditions of the environmental impact authorizations;
(xiii) To the best knowledge of the Borrower after reasonable
investigation, the Property is not subject to any imminent restriction on
the occupancy, use, transferability of the Property in connection with any
(A) EHS Requirement or (B) Release, threatened Release or disposal of
Contaminants; and
(xiv) To the best knowledge of the Borrower after reasonable
investigation, there are no conditions or circumstances at the Property
that pose a risk to the environment or the health and safety of persons
except for those associated with the lawful execution of the Project.
(k) All insurance policies required by Section 6.01(d) are in full
force and effect and all premiums on such insurance have been paid to the extent
due and payable on or prior to the date this representation and warranty is made
or deemed made.
(l) The Borrower owns or has the right to use all technology,
licenses, patents and other proprietary rights that are material and required to
construct and operate the Project without any known conflict with the rights of
others.
(m) No Event of Force Majeure exists under the Public Works Contract
and no event of force majeure or the like exists under any Principal Subcontract
that will cause any Provisional Acceptance Date or the Project Completion Date
under the Public Works Contract to be extended by more than sixty (60) days (in
the case of any Governmental Force Majeure) or two hundred seventy (270) days
(in the case of any Event of Force Majeure) beyond the date set forth in the
Construction Schedule.
(n) No Event of Loss has occurred, has been commenced or, to the best
knowledge of the Borrower, is contemplated by any Governmental Authority.
(o) The Borrower has filed all tax and information returns required to
be filed and paid all taxes and assessments shown thereon to be due, including
interest and penalties, except to the extent that any such tax or assessment is
the subject of a Good Faith Contest by the Borrower. To the best knowledge of
the Borrower, neither the execution and delivery of this Common Agreement or any
other Financing Document, nor the consummation of any of the
47
transactions contemplated hereby or thereby, will result in any tax, levy,
impost, duty, charge or withholding imposed by Mexico or any political
subdivision or taxing authority thereof or therein, on or with respect to such
execution, delivery or consummation, or upon or with respect to any Secured
Party, except for (i) those that have been paid or that are the subject of a
Good Faith Contest by the Borrower and (ii) withholding taxes on interest,
amounts deemed interest or indemnities under applicable Mexican Law and the fees
to be paid for the registration of the Mexican Security Documents in the Public
Registry of Commerce (Registro Publico de Comercio) in Mexico.
(p) On and following the Construction Facility Closing Date, the
Borrower possesses good and valid rights in all of the Collateral (other than
the shares of the Borrower and any right, title or interest of any Member other
than the Borrower in the Public Works Contract) and good and marketable title to
the property purported to be owned by it. There are no Liens (including Liens or
retained security titles of conditional vendors) of any nature whatsoever on any
property or assets of the Borrower, other than Permitted Liens.
(q) On and following the Construction Facility Closing Date, all
Governmental Approvals and all other filings, recordings, registrations and
other actions have been made, obtained and taken in all relevant jurisdictions
that are necessary to create and perfect the Liens provided for in the Security
Documents executed on or before the date on which this representation is made or
deemed made, and the applicable Collateral Agent, for the benefit of the Secured
Parties, shall have the Liens provided for in such Security Documents, and such
Security Documents shall constitute a valid, direct, continuing and perfected
first priority Lien on the Collateral; subject only to Permitted Liens and prior
to the date that is not later than one hundred twenty (120) days following the
Construction Facility Closing Date or such later date as the Intercreditor Agent
deems reasonably appropriate under the circumstances, to the registration of the
Borrower Pledge Agreement with the Public Registry of Commerce (Registro Publico
de Comercio) in Mexico and prior to the date that is not later than one hundred
twenty (120) days following the Construction Facility Closing Date or such later
date as the Intercreditor Agent deems reasonably appropriate under the
circumstances, solely with respect to priority in connection with any federal
tax liens, to the registration of each of the Stock Pledge Agreement and the PWC
Pledge Agreement with the Public Registry of Commerce (Registro Publico de
Comercio) in Mexico.
(r) Except as specifically disclosed on Schedule 5.01(r), all
easements, leasehold and other property interests, and all utility and other
services, means of transportation, facilities, other materials and other rights
that are necessary for the development, construction and completion of the
Project in accordance with all material Requirements of Law, all EHS
Requirements and the Transaction Documents (including electrical, telephone,
water and sewage services and facilities) have been procured pursuant to the
Transaction Documents or are otherwise commercially available to the Project
and, to the extent appropriate, arrangements have been made on commercially
reasonable terms for such easements, interests, services, means of
transportation, facilities materials and rights.
(s) The representations and statements made by the Borrower in this
Common Agreement and in each other executed Transaction Document to which it is
a party and in any other document furnished by the Borrower in connection
herewith or therewith, when taken as a
48
whole, do not contain any untrue statement of a material fact or omit to state
(as of the date made or furnished) any material fact necessary to make the
statement herein or therein not misleading in light of the circumstances under
which they were made. To the best of the Borrower's knowledge without
independent investigation, representations and warranties made by the parties to
the Transaction Documents (other than the Borrower) in each Transaction Document
are true and correct in all material respects.
(t) The Borrower is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940.
(u) The Borrower has not taken any corporate action nor have any other
legal steps been taken or legal proceedings been commenced or, to the best of
the Borrower's knowledge, threatened against the Borrower seeking a
reorganization, moratorium, arrangement, adjustment or composition or for the
appointment of a receiver, liquidator, assignee, sequestrator (or similar
official) in relation to any substantial part of its property, or for the
winding up, dissolution or re-organization of it or of any or all of the
Borrower's property. The Borrower is not, and is not deemed to be, generally in
default with respect to its payment obligation under the Ley de Concursos
Mercantiles.
(v) The Borrower is not subject to regulation under any Law as to
Securities, rates or financial or organizational matters that would preclude any
Loan or the execution, delivery and performance of the Project Documents.
(w) No part of the proceeds from any Working Capital Facility
Borrowing or Construction Facility Borrowing will be used, directly or
indirectly, for the purpose of buying or carrying any "margin stock" within the
meaning of Regulation G or U of the Board of Governors of the Federal Reserve
System (12 C.F.R. Section 207 and 221, respectively).
(x) Neither the Borrower nor any Affiliate thereof has retained any
broker, finder or financial advisor in connection with the transactions
contemplated by this Common Agreement or by the other Transaction Documents,
which will result in the obligation of any Person to pay any finder's fee,
brokerage commission or similar payment in connection with the transactions
contemplated herein or therein.
(y) The Borrower is not a party to any material contracts other than
the Transaction Documents and the Borrower has delivered to the Intercreditor
Agent true, correct and complete copies of each executed Transaction Document.
(z) The Borrower is subject to civil and commercial law with respect
to its Obligations under the Financing Documents, and the execution, delivery
and performance of the Financing Documents by the Borrower constitute private
and commercial acts rather than public or governmental acts. Neither the
Borrower nor any of its assets or properties has any immunity from suit, service
of process, court jurisdiction, attachment prior to judgment, attachment in aid
of execution of a judgment, set-off, execution of a judgment or from any other
legal process with respect to the Obligations of the Borrower under the
Financing Documents.
49
(aa) No foreign exchange control approvals or other authorizations by
the government of Mexico or any Governmental Authority therein or thereof are
required to assure the availability of U.S. Dollars to enable the Borrower and
the Lender Representatives to perform their respective obligations under the
Financing Documents in accordance with their respective terms. There are no
legal restrictions or requirements that limit the availability or transfer of
foreign exchange for the purpose of the performance by the Borrower and the
Collateral Agents of their respective obligations under the Financing Documents.
There are no legal restrictions or requirements that limit the availability or
transfer of foreign exchange for the purpose of remitting the proceeds of
enforcement of the Obligations or the Collateral to any Secured Party.
(bb) None of the Borrower, any Shareholder, any Sponsor, any Affiliate
of the foregoing or any of their respective officers, directors, employees or
agents has taken any action in connection with the Project that violates the
OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, or any similar Law in Mexico or any other
jurisdiction, if applicable.
(cc) The Borrower has paid or made adequate provision for the payment
of all Social Security (IMSS) quotas, Workers' Housing Fund (INFONAVIT) and
Retirement Fund (SAR) quotas payable by the Borrower.
(dd) The aggregate amount of all unpaid Project Costs to be incurred
by the Borrower in connection with the completion of all Works to be completed
prior to the Project Completion Date pursuant to the Public Works Contract and
all Project Costs to be incurred by the Borrower pursuant to all other
Transaction Documents and otherwise prior to the Project Completion Date does
not exceed the sum of the aggregate amount of all cash equity contributions
received from the Shareholders by the Borrower and Subordinated Debt disbursed
(subject to the first priority perfected Lien in favor of the applicable
Collateral Agent but free of all other Liens) to the Borrower, all insurance
proceeds available to the Borrower in accordance with the terms hereof to be
applied to the repair or replacement of Works, and the available undrawn
Construction Facility Commitments.
(ee) Subject to the exceptions set forth in the legal opinions
delivered pursuant to Section 4.01(j) or Section 4.03(e), each Transaction
Document is in proper legal form under applicable Law and is capable of
enforcement in Mexico and such other jurisdictions as appropriate without any
further action of any Secured Party.
(ff) The Borrower has not made any loan or advance to any Person
(other than any payment required pursuant to the terms of any Principal
Subcontract) or purchased or otherwise acquired any capital stock, obligations
or other Securities of, made any capital contribution to, or otherwise invested
in, any Person, except Permitted Investments.
(gg) On and following the Construction Facility Closing Date, the
Borrower has taken all actions necessary to ensure that at all times by virtue
of the Liens created pursuant to the Security Documents in favor of the Secured
Parties or in favor of the applicable Collateral Agent for the benefit of the
Secured Parties to secure the payment and performance of Obligations by the
Borrower, such Obligations shall enjoy a preferential right of payment
50
through the enforcement of such Liens and, once such Liens have been fully
enforced, the unsecured remainder of such Obligations, if any (and any other
unsecured Obligation that any Secured Party may have against the Borrower) will
rank at least pari passu in right of payment with the claims of all other
unsecured creditors of the Borrower.
(hh) As of the Signing Date, the Borrower has not granted any powers
of attorney (or similar powers, documents or instruments) to any Person other
than those set forth in Schedule 5.01(hh). The Borrower has delivered to the
Intercreditor Agent all powers of attorney (and similar powers, documents and
instruments) issued or executed by or on behalf of the Borrower.
(ii) The Borrower has no contracts or agreements with, and does not
have any other commitments to, and otherwise has not entered into any
transactions with, any Affiliate (or any Affiliate of any Sponsor) other than as
previously disclosed to the Secured Parties and a copy of each such contract or
agreement has been furnished to the Intercreditor Agent.
(jj) Schedule 5.01(jj) sets forth (a) the capitalization of the
Borrower as of the Signing Date, including its Capital Stock issued and
outstanding, the Shareholders and the Capital Stock of the Borrower held by each
such Shareholder and (b) the equity owners of the Shareholders as of the Signing
Date and their respective percentages of equity ownership in such Shareholders.
All of the issued and outstanding Capital Stock is validly issued, fully paid
and non-assessable. There are no outstanding options, warrants, conversion or
exchange privileges, preemptive rights, rights of first refusal or other rights
with respect to, or to purchase or obtain, any Capital Stock of the Borrower
other than those under the Stock Pledge Agreement. There are no contracts,
agreements, commitments, understandings, arrangements or restrictions relating
to the issuance, sale, transfer, voting or purchase by any Shareholder or any
other Person of any Capital Stock other than those under the Stock Pledge
Agreement. For purposes of this Section 5.01(jj), "Capital Stock" means any and
all shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interest in (however designated) the common or preferred
equity or equity or preference share capital of such Person, including, without
limitation, partnership interests, and any securities convertible into or
exchangeable for any thereof.
Section 5.02. Rights and Remedies Not Limited. The Borrower acknowledges
and agrees that the rights and remedies of each Secured Party in relation to any
misrepresentation or breach of warranty on the part of the Borrower are not
prejudiced:
(a) by an investigation by or on behalf of any Secured Party into the
affairs of the Borrower or any other Person;
(b) by the execution or the performance of this Common Agreement or
any other Transaction Document; or
(c) by any other act or thing which may be done by or on behalf of any
Secured Party in connection with this Common Agreement or any other Transaction
Document and which might, apart from this section, prejudice such rights or
remedies.
51
ARTICLE VI
COVENANTS OF THE BORROWER
Section 6.01. Affirmative Covenants. So long as any Loan shall remain
unpaid, any Lender shall have any Commitment under any Credit Agreement or any
Obligation shall remain unpaid, the Borrower shall, unless the Intercreditor
Agent shall otherwise consent in writing (the Borrower hereby covenanting to
provide a sufficient number of copies for each Secured Party):
(a) Use of Proceeds. Apply (i) all proceeds of all Working Capital
Facility Borrowings and all amounts realized in respect of all VAT Receivables
solely for the payment of Project Costs (in the case of amounts realized in
respect of VAT Receivables, within thirty (30) days of its receipt thereof)
other than the repayment or prepayment of any Loans and (ii) all proceeds of all
Construction Facility Borrowings solely for the payment of outstanding
Obligations (other than the repayment or prepayment of any Constructions Loans)
and any Non-Excluded Taxes.
(b) Construction of Project. Cause (i) the Provisional Acceptance of
the First Unit to occur not later than the Scheduled Provisional Acceptance Date
of the First Unit (as the same may be extended not more than two hundred seventy
(270) days for Permissible Provisional Acceptance Delays) and (ii) the Project
Completion Date to occur not later than the Scheduled Project Completion Date
(as the same may be extended not more than two hundred seventy (270) days for
Permissible Project Completion Delays).
(c) Payment of Taxes, Etc. Pay and discharge all taxes, assessments
and governmental charges or levies imposed upon it or upon its income or
profits, or upon any properties belonging to it, prior to the date on which
penalties attach thereto, and all lawful claims (including claims for labor,
materials and supplies to the extent Liens relating thereto are not permitted
under Section 6.02(a)), which, if unpaid, might become a Lien upon any
properties of the Borrower; provided, that the Borrower shall not be required to
pay any such tax, assessment, charge, levy or claim that is the subject of a
Good Faith Contest by the Borrower under circumstances where none of the
Collateral or the continued availability thereof, or the Liens of the Secured
Parties thereon, will be endangered nor all or any portion of the Project will
be subject to loss or forfeiture. The Borrower shall, upon notice and receipt of
reasonable evidence from any Secured Party, reimburse such Secured Party for any
such taxes, assessments, charges, levies or liabilities paid by such Secured
Party.
(d) Maintenance of Insurance. Maintain, or cause to be maintained,
insurance covering the Borrower and its properties (including the Project) in
effect at all times in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general area in which the Borrower operates and as is reasonably
requested by the Intercreditor Agent and the Insurance Consultant, such
insurance coverage to include limits and coverage provisions sufficient to
satisfy the requirements set forth in the Transaction Documents, but in no event
less than the limits and coverages described in Schedule 6.01(d) hereto. In
addition:
(i) Each policy for liability insurance shall provide for all
losses to be paid directly to the Person who shall have incurred the damage
or injury covered by such
52
policy. If any policy for liability insurance described in Schedule 6.01(d)
hereto is permitted to be written on a "claims made" basis, such insurance
policy shall have a retroactive date (as such term is specified in such
policy) no later than the Initial Closing Date. Each time any policy
written on a "claims made" basis is not renewed or the retroactive date of
such policy is to be changed, the Borrower shall obtain, or cause to be
obtained, for each such policy or policies the broadest basic and
supplemental extended reporting period coverage, or "tail," reasonably
available in the commercial insurance market for each such policy or
policies, as determined in the sole reasonable judgment of the
Intercreditor Agent and the Insurance Consultant, but in no event less than
five years after the expiration of such policy or policies.
(ii) Each such policy shall, except as specifically set forth
below, (A) be maintained with financially sound and responsible insurance
carriers with a S&P investment grade rating of "BBB+" or better (or, if
such ratings shall cease to be published generally for the insurance
industry, meeting comparable financial requirements as may be established
by the Intercreditor Agent for the purpose of assuring that such insurer is
financially capable of performing its obligations under such policy), (B)
with respect to each policy for liability insurance only, name the Borrower
as a named insured and the Secured Parties as additional insureds
thereunder (without any representation or warranty by or obligation of any
nature whatsoever upon the Offshore Depositary Bank or any of the Secured
Parties), (C) with respect to each policy for property insurance only,
contain the agreement by the insurer that any loss thereunder that would
otherwise be payable to the Offshore Depositary Bank will be so payable
notwithstanding any action, inaction or breach of representation or
warranty by the Borrower or any foreclosure of the Project or any change in
ownership of all or any portion of the Project, (D) with respect to each
policy for liability insurance only, contain a severability of interests or
cross liability clause, (E) provide that there shall be no recourse of any
nature whatsoever against the Offshore Depositary Bank or any of the
Secured Parties for payment of premiums or other amounts with respect
thereto or with respect to the policy or the property covered thereby, (F)
provide that, as against the Borrower, the Offshore Depositary Bank and the
other Secured Parties, there shall be no rights of subrogation, set-off,
counterclaim or any other deduction, (G) with respect to each policy for
liability insurance only, provide that such insurance shall be primary,
without right of contribution from any other insurance that may be carried
by the Borrower, the Offshore Depositary Bank or any other Secured Party,
(H) with respect to each policy for property insurance only, provide that
the Borrower shall in no event be deemed to be a co-insurer in respect of
any covered claim or loss thereunder, (I) provide that at least thirty (30)
days' prior written notice of reduction, cancellation or lapse and at least
ten (10) days' prior written notice of non-payment of premium shall be
given to the Offshore Depositary Bank and the Intercreditor Agent by the
insurer and (J) provide that the Offshore Depositary Bank or the
Intercreditor Agent may (but shall not be obligated to) cure any lapse or
breach by the Borrower during such thirty (30) day period (or ten (10) day
period, in the case of non-payment).
(iii) The Borrower shall deliver to the Intercreditor Agent
original or duplicate policies of insurance, or if original or duplicate
policies are not readily available, cover notes or equivalent cover notes,
certificates of insurance, or equivalent
53
documentation satisfactory to the Intercreditor Agent. In addition,
annually on each policy anniversary or more frequently as may be reasonably
requested by the Intercreditor Agent, the Borrower shall furnish the
Intercreditor Agent with approved certification of all required insurance.
Such certification shall be executed by each insurer or by an authorized
representative of each insurer where it is not practical for such insurer
to execute the certificate itself. Such certification shall identify
underwriters, the type of insurance, the insurance limits and the policy
term and shall specifically list the special provisions enumerated for such
insurance required by this Section 6.01(d) and Schedule 6.01(d) hereto.
Certification of transit insurance on any machinery, equipment or other
properties constituting a part of the Project or that is anticipated to
become a part of the Project (from the time that the same is ready to be
shipped or otherwise transported from the premises of its manufacturer and
continuing until the same is delivered to the Site and is covered by
builder's risk insurance on an "all risk basis", including each loading and
unloading of the same) to the Project shall be provided by the Borrower at
least thirty (30) days prior to any actual shipment of such property.
(iv) Concurrently with the furnishing of the certification
referred to in paragraph (iii) above and at least ten (10) days prior to
the expiration of any insurance policy, the Borrower shall furnish the
Intercreditor Agent with a report of an independent broker, signed by an
officer of the broker, stating that all premiums then due have been paid
and that, in the opinion of such broker, the insurance then carried or to
be renewed is in accordance with the terms of this Section 6.01(d) and
Schedule 6.01(d) hereto.
(v) No provision of this Section 6.01(d) and Schedule 6.01(d)
hereto or any provision of the Common Agreement or any Transaction Document
shall impose on the Offshore Collateral Agent, the Offshore Depositary Bank
or the Intercreditor Agent any duty or obligation to verify the existence
or adequacy of the insurance coverage maintained by the Borrower, nor shall
the Offshore Collateral Agent, the Offshore Depositary Bank or the
Intercreditor Agent be responsible for any representations or warranties
made by or on behalf of the Borrower to any insurance company or
underwriter.
(vi) Upon the reasonable request of the Intercreditor Agent, the
Borrower shall amend the amount and scope of coverage of any of the
insurance policies described in Schedule 6.01(d) hereto to cover such risks
that, in the reasonable judgment of the Insurance Consultant, would render
such coverage materially inadequate, provided, that such coverage can be
obtained on commercially reasonable terms.
(e) Preservation of Existence, Etc. Preserve and maintain its legal
existence, rights and franchises and privileges in full force and effect in
Mexico and qualify and remain qualified to do business in each other
jurisdiction in which failure to receive or retain such qualification could be
expected to have a Material Adverse Effect.
(f) Compliance with Laws, Etc. (i) Comply in all material respects
with all Requirements of Law, and comply in all respects with all EHS
Requirements, applicable to the Borrower, and cause all Principal
Subcontractors, any subcontractors and all Persons using or occupying the
Project to comply with all Requirements of Law and EHS Requirements (except
54
(other than in respect of any EHS Requirements) for any non-compliance that has
not continued for the lesser of (x) thirty (30) days or (y) such other period as
would constitute a Material Adverse Effect), (ii) immediately pay or cause to be
paid when due all costs and expenses for such compliance, except to the extent
that the same is subject to a Good Faith Contest by the Borrower under
circumstances where none of the Collateral or the continued availability
thereof, or the Liens of the Secured Parties thereon, will be endangered nor all
or any portion of the Project will be subject to loss or forfeiture, (iii)
diligently undertake all Remedial Action in connection with the Project, and
(iv) without limiting any of the foregoing, implement the environmental
management program prepared pursuant to the Environmental Impact Authorization
No. S.G.P.A./DGIRA.DDT/1388.06 and implement all conservation programs in
accordance with the general plan and schedule filed by CFE with the relevant
Governmental Authorities on March 22, 2007.
(g) Inspection Rights. From time to time upon reasonable notice,
permit each of the Lender Representatives and their respective agents (provided
that such Persons do not unreasonably interfere with the performance of the
Works) to examine and make copies of and abstracts from the records and books of
account of, and the properties of, the Borrower and to discuss the affairs,
finances and accounts of the Borrower and the Project with the Borrower, the
Shareholders and their respective officers, and the Borrower's accountants and
engineers.
(h) Keeping of Books; Maintenance of Logs. Keep proper records and
books of account, in which full and correct entries shall be made of all
financial transactions of the Borrower, the assets and business of the Borrower
and all costs and expenses in connection with the Project, in accordance with
the Applicable GAAP, and maintain operating and maintenance logs and records
with respect to the Project required by all applicable Laws and Governmental
Approvals.
(i) Collection of Accounts Receivable. Promptly ▇▇▇▇, and diligently
pursue collection of, on a commercially reasonable basis, all accounts
receivable owing to the Borrower and all other amounts that may from time to
time be owing to the Borrower from any Person.
(j) Governmental Approvals. Duly obtain, or cause to be obtained, on
or prior to such date as the same may become legally required, and thereafter
maintain, or cause to be maintained, as applicable, in effect as long as legally
required, all Governmental Approvals necessary in connection with the
development, construction and completion of the Project (except, prior to the
Construction Facility Closing Date, for the Designated Jalisco Permit and other
than those Government Approvals which CFE is required to obtain in accordance
with the Public Works Contract).
(k) Maintenance of Properties, Etc. Acquire, maintain and preserve,
develop and construct (and cause to be acquired, maintained, preserved,
developed and constructed) in conformity with all Governmental Approvals and
without triggering an event of default under the Public Works Contract, all
elements of the Project that are used or necessary in the conduct of its
business in good working order and condition.
55
(l) Technology. Obtain and maintain, or cause to be obtained and
maintained, as applicable, all patents, licenses and other proprietary rights
and technology necessary in connection with the development, construction and
completion of the Project.
(m) Maintenance of Title; Maintenance of Liens. (i) Maintain good and
valid rights and title to the Collateral (other than the shares of the Borrower
and any right, title or interest of any Member other than the Borrower in the
Public Works Contract), free and clear of all Liens other than Permitted Liens,
(ii) on and following the Construction Facility Closing Date, maintain the
perfection and priority of the Liens in the Collateral created pursuant to the
Security Documents, subject only to Permitted Liens, (iii) on or before the date
that is not later than one hundred twenty (120) days following the Construction
Facility Closing Date or such later date as the Intercreditor Agent deems
reasonably appropriate under the circumstances, complete the registration of the
Borrower Pledge Agreement, the PWC Pledge Agreement and the Stock Pledge
Agreement with the Public Registry of Commerce (Registro Publico de Comercio) in
Mexico, and (iv) pay when due all fees to be paid in connection with the
registration of the Borrower Pledge Agreement, the PWC Pledge Agreement and the
Stock Pledge Agreement.
(n) Further Assurance. On and following the Construction Facility
Closing Date, promptly execute and deliver all further agreements, instruments
and documents, and take all further action, that may be necessary or that the
Intercreditor Agent may reasonably request in order to create, maintain and
preserve the Lien of the Security Documents in all of the Collateral (other than
the shares of the Borrower), including (i) granting, making or causing to be
made or delivering or causing to be delivered all necessary or appropriate
filings, registrations, recordings, consents, approvals, powers of attorney,
notices or acknowledgements by or with any Governmental Authority or other
Person, (ii) the payment of fees and other charges, (iii) the issuance of
supplemental documentation required by the Security Documents and (iv) the
discharge of all claims or Liens (other than Permitted Liens) adversely
affecting the rights of the Secured Parties to and under the Collateral. The
Borrower shall from time to time execute, or cause to be executed, any and all
further instruments (including financing statements, continuation statements and
similar statements with respect to any of the applicable Security Documents)
reasonably requested by the Intercreditor Agent for such purpose.
(o) Performance of Contractual Obligations. (i) Perform and observe
all terms and provisions of each Contractual Obligation (including the executed
Transaction Documents (except for the Public Works Contract to the extent no
Contractor PWC Event of Default exists and except for any other Contractual
Obligation that has been waived by a Project Party obligee) to which it is a
party), maintain all Project Documents in full force and effect in accordance
with their terms, enforce all Project Documents in accordance with their
respective terms and take all such action concerning enforcement as the
Intercreditor Agent or any Secured Party may from time to time reasonably
request; and, if an obligor under any Transaction Document (other than the
Borrower or any Secured Party) asserts in writing its belief that such
Transaction Document is not valid or binding upon such obligor, allow the
Intercreditor Agent or any Secured Party the right to participate in any
proceeding relating thereto, (ii) cause the Performance Guarantee to be
provided, maintained, increased and replenished in accordance with the Public
Works Contract and (iii) cause the Quality Guarantee, either in the form of the
letter of credit (Modelo de Carta de Credito) contained in Annex 17 of the
Public Works Contract or in the form of a cash deposit,
56
to be provided to CFE on or prior to the date on which the Borrower otherwise
reasonably would be expected to achieve the Provisional Acceptance of the First
Unit, and cause the same to be maintained, increased and replenished in
accordance with the Public Works Contract; provided that the issuer and
confirming institution, if any, of each such Performance Guarantee (including
any increase, replenishment or extension thereof) and of the Quality Guarantee
(including any increase, replenishment or extension thereof) shall have duly
executed a waiver of all of its rights and claims against the Borrower
(including all rights and claims, if any, against the Borrower in connection
with such Performance Guarantee or Quality Guarantee, as applicable, (and any
supplement, increase, extension or replacement of the same or any commitment in
respect thereof) or arising by operation of law (including pursuant to any
applicable principles of subrogation or otherwise)) for so long as any Loan
shall remain unpaid, any Lender shall have any Commitment under the Credit
Agreements or any other Obligation shall remain unpaid.
(p) Discharge of Debt. Promptly pay and discharge or cause to be paid
and discharged all of its Debts incurred in the ordinary course of business when
they become due; provided, that (i) the Borrower shall pay and discharge its
Debts in an aggregate principal amount less than U.S.$250,000 no later than
thirty (30) days after the due date therefor, and (ii) the Borrower shall not be
required to pay such Debts that are the subject of a Good Faith Contest by the
Borrower.
(q) Performance Guarantees. (i) Prior to the date of the Initial
Closing Date cause to be delivered to CFE the Performance Guarantee in an amount
not less than the amount required pursuant to the Public Works Contract and
expiring not before December 31, 2007, (ii) cause each Performance Guarantee
from time to time to be issued in the form of a letter of credit contained in
Annex 16 (Formato de Garantia de Complimiento) of the Public Works Contract by
an Acceptable LC Provider and (iii) cause each issuer of the Performance
Guarantee to execute and deliver a waiver letter substantially in the form of
Exhibit C, or otherwise in form and substance satisfactory to the Intercreditor
Agent.
(r) Termination of Public Works Contract. Cause the Public Works
Contract to be terminated pursuant to Clauses 26 or 27 or otherwise in
accordance with the terms thereof upon the Borrower's receipt of notice from the
Intercreditor Agent with respect thereto.
(s) Peso Proceeds. Cause any insurance proceeds or any award or
payment on account of any Taking payable to the Borrower in Pesos to be paid to
the Onshore Account.
(t) Operating Account. Cause (i) all amounts on deposit in the Peso
Operating Account to be held in Peso-denominated certificates of deposit, time
deposits and banker's acceptances maturing not later than thirty (30) days from
the date of acquisition thereof, or overnight bank deposits, in each case held
or maintained by the bank with whom such Peso Operating Account is maintained,
and (ii) all amounts on deposit in the Peso Operating Account to be applied to
the payment of Project Costs within thirty (30) days of the deposit of such
amounts in such accounts and, promptly upon request therefor by the
Intercreditor Agent, deliver to the Intercreditor Agent detailed information and
corresponding payment receipts evidencing the application of such amounts.
57
(u) Seniority of Obligations. From and after the Construction Facility
Closing Date take all actions necessary to ensure that at all times by virtue of
the Liens created pursuant to the Security Documents in favor of the Secured
Parties or in favor of the applicable Collateral Agent for the benefit of the
Secured Parties (as the case may be) to secure the payment and performance of
Obligations by the Borrower, such Obligations shall enjoy a preferential right
of payment through the enforcement of such Liens and, once such Liens have been
fully enforced, the unsecured remainder of such Obligations, if any (and any
other unsecured Obligation that any Secured Party may have against the Borrower)
will rank at least pari passu in right of payment with the claims of all other
unsecured creditors of the Borrower.
(v) Report on Electromechanical Equipment. On or before October 1,
2008, deliver to the Intercreditor Agent a report of the Independent Engineer in
form and substance satisfactory to the Intercreditor Agent in which the
Independent Engineer certifies that (A) the Independent Engineer has observed
testing of the models of the turbines proposed to be used under the Public Works
Contract and to be provided pursuant to the Electromechanical Contract and (B)
such testing demonstrates the ability of the Borrower to satisfy the Minimum
Performance Standards and an adequate over-design margin consistent with current
industry standards.
Section 6.02. Negative Covenants. So long as any Loan shall remain unpaid,
any Lender shall have any Commitment under any Credit Agreement or any
Obligation shall remain unpaid, the Borrower shall not, without the prior
written consent of the Intercreditor Agent:
(a) Liens, Etc. Create, incur, assume or suffer to exist any Lien upon
or with respect to any of its assets or properties of any character, whether now
owned or hereafter acquired, except for the following (collectively, "Permitted
Liens"):
(i) Liens created or permitted under or by the Security
Documents;
(ii) Liens for taxes, assessments or governmental charges or
levies to the extent not past due or that are the subject of a Good Faith
Contest by the Borrower;
(iii) pledges or deposits to secure obligations under workmen's
compensation laws or similar legislation or to secure public or statutory
obligations of the Borrower; and
(iv) other easements, reservations, covenants, rights of way,
title defects, irregularities and other Liens not intended as security that
do not, in the aggregate, materially adversely affect the construction,
completion or commissioning of the Project or the value of the Property.
(b) Debt. Create, incur, assume or suffer to exist any Debt other
than:
(i) Debt hereunder and under the Financing Documents to which the
Borrower is a party;
(ii) Except as explicitly contemplated in Section 6.02(c) below,
Guaranty Obligations and other contingent obligations; and
58
(iii) Subordinated Debt.
(c) Guaranty and Contingent Obligations. Create, incur, assume or
suffer to exist any Guaranty Obligations or other contingent obligations except
indemnities set forth in the Transaction Documents.
(d) Modification of Construction Budget or Construction Schedule.
Adjust, modify or re-allocate all or any portion of the Construction Budget or
modify the Construction Schedule unless:
(i) Except with respect to any adjustment, modification or
reallocation made solely to reflect a PWC Change Order permitted pursuant
to Section 6.02(l), the Independent Engineer has reviewed and issued a
favorable opinion to the Intercreditor Agent regarding, and the
Intercreditor Agent has subsequently approved, such adjustment,
modification or reallocation;
(ii) the representations and warranties set forth in subsection
5.01(dd) are true and correct after giving effect to such adjustment,
modification or reallocation;
(iii) such adjustment, modification or reallocation does not
extend any Scheduled Provisional Acceptance Date or Scheduled Project
Completion Date (and does not cause the date on which the Borrower
reasonably believes (and the Independent Engineer so opines) that the
Borrower will achieve such Provisional Acceptance or the Project Completion
to be later than January 2, 2012 (for the Provisional Acceptance of the
First Unit), April 2, 2012 (for the Provisional Acceptance of the Second
Unit) or June 11, 2012 (for Project Completion), as each such date may be
extended not more than two hundred seventy (270) days for Permissible
Provisional Acceptance Delays or Permissible Project Completion Delays, as
the case may be; and
(iv) such adjustment, modification or reallocation does not
affect the Borrower's ability to achieve such Minimum Performance Standards
on or before the date set forth therefor in the Construction Schedule (as
such date may be extended not more than two hundred seventy (270) days for
Permissible Provisional Acceptance Delays or Permissible Project Completion
Delays, as applicable).
(e) Restricted Payments. Make any payment (including in respect of
interest) or prepayment on account of Subordinated Debt or declare or make any
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any interest in the Borrower, or purchase, redeem,
retire, or otherwise acquire for value any Subordinated Debt or interests of the
Borrower or any warrants, rights or options to acquire any such Subordinated
Debt or interests, now or hereafter outstanding.
(f) Mergers, Etc. Merge or consolidate with or into, or acquire all or
substantially all of the assets of, or enter in a joint venture (other than to
the extent the Consortium Agreement constitutes a joint venture) or partnership
with, any Person.
59
(g) Ownership; Legal Form. Permit or suffer to exist any transfer or
sale or change in the direct or indirect ownership interests of the Borrower or
change the legal form of the Borrower.
(h) Investments in Other Persons. Make any loan or advance to any
Person (other than any payments required pursuant to the terms of any Principal
Subcontract) or purchase or otherwise acquire any capital stock, obligations or
other Securities of, make any capital contribution to, or otherwise invest in,
any Person, except for Permitted Investments.
(i) Subsidiaries. Create or suffer to exist any Subsidiaries.
(j) Change in Nature of Business. Engage in any business other than as
described in Section 5.01(i) and activities associated with or incidental
thereto.
(k) Cancellation of Project Documents. Cancel or terminate (or consent
to or otherwise permit any cancellation or termination of) any Project Document,
or declare a default under any Project Document or request, consent to or
acquiesce in the reduction, termination or substitution of the Performance
Guarantee (other than (i) the automatic reduction thereof as the result of any
draw pursuant to such Performance Guarantee or (ii) a substitution of the
Performance Guarantee pursuant to and in accordance with the terms of the Public
Works Contract) or any related reimbursement agreement, instrument or letter of
credit.
(l) Amendments to Project Documents; PWC Change Orders. Amend,
supplement or otherwise modify (or suffer to exist any amendment, supplement or
modification), or give any consent, waiver or approval to any variation of or
deviation from the material terms of, or agree to extend the deadline for
performance of any party under, the Public Works Contract (including any PWC
Change Order or otherwise pursuant to Clause 9.3 of the Public Works Contract)
or any Principal Subcontract, except to the extent that:
(i) with respect to each (A) PWC Change Order, the Borrower's
acceptance of and agreement with the same is expressly made subject (with
the acknowledgement by CFE of the same) to the subsequent review and
favorable opinion of the Independent Engineer and approval of the
Intercreditor Agent (other than with respect to any PWC Change Order with a
related cost of not more than U.S.$12,500,000 and that, when combined with
each previous PWC Change Order that did not (on an individual basis) have a
related cost of more than U.S.$12,500,000, equals not more than
U.S.$25,000,000) or (B) Principal Subcontract, the Independent Engineer has
issued a favorable opinion of such amendment, supplement or modification;
(ii) the representations and warranties set forth in subsection
5.01(dd) are true and correct after giving effect to such PWC Change Order
or such amendment, supplement or modification to any Principal Subcontract,
as the case may be;
(iii) such PWC Change Order or such amendment, supplement or
modification to any Principal Subcontract, as the case may be, does not
extend any Scheduled Provisional Acceptance Date or Scheduled Project
Completion Date beyond the date set forth therefor in the Construction
Schedule delivered on the Signing Date, as each such date may be extended
not more than two hundred seventy (270) days for
60
Permissible Provisional Acceptance Delays or Permissible Project Completion
Delays, as the case may be (and does not cause the date on which the
Borrower reasonably believes (and the Independent Engineer issues a
favorable opinion) that the Borrower will achieve any Provisional
Acceptance Date or the Project Completion Date to be later than January 2,
2012 (for the Provisional Acceptance of the First Unit), April 2, 2012 (for
Provisional Acceptance of the Second Unit) or June 11, 2012 (for Project
Completion) as each such date may be extended not more than two hundred
seventy (270) days for Permissible Provisional Acceptance Delays or
Permissible Project Completion Delays, as the case may be;
(iv) such PWC Change Order does not alter the Minimum Performance
Standards;
(v) such PWC Change Order or such amendment, supplement or
modification to any Principal Subcontract, as the case may be, does not
impair the Borrower's ability to achieve such Minimum Performance Standards
on or before the date set forth therefor in the Construction Schedule (as
such date may be extended not more than two hundred seventy (270) days for
Permissible Provisional Acceptance Delays or Permissible Project Completion
Delays, as applicable); and
(vi) with respect to any PWC Change Order, neither the
Intercreditor Agent nor the Independent Engineer has rejected such PWC
Change Order at any time following receipt thereof, which rejection shall,
if the conditions set forth in clauses (i)(A), (ii), (iii), (iv) and (v) of
this Section 6.02(l) are satisfied in respect of such PWC Change Order and
the Independent Engineer has delivered to the Intercreditor Agent a written
report with respect to such PWC Change Order that is reasonably acceptable
to the Intercreditor Agent, only be exercised in the reasonable discretion
of the Intercreditor Agent.
(m) Transactions with Affiliates. Except for (i) agreements existing
on the Signing Date (a copy of each such agreement having been delivered to the
Intercreditor Agent), (ii) Subordinated Debt Documents and (iii) the Principal
Subcontracts, enter into any transaction with an Affiliate unless (x) such
transaction is on terms no less favorable to the Borrower than if the
transaction had been negotiated in good faith on an arm's length basis with a
non-Affiliate and (y) the terms of such transaction are consistent in all
respects with the Public Works Contract.
(n) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of its assets, except sales of assets in the ordinary course of business up to
an aggregate amount equal to U.S.$1,000,000 per year if the same have been
replaced to the extent necessary for the continued execution of the Project.
(o) Environmental Compliance. Generate, use, treat, store or Release
or permit the generation, use, treatment, storage, or Release, of Contaminants
on, at, to or from the Property, or transport or knowingly permit the transport
of Contaminants to or from the Property, except in compliance with EHS
Requirements.
61
(p) Capital Expenditures. Make Capital Expenditures except Capital
Expenditures relating to the Public Works Contract or any Principal Subcontract.
(q) Assignments. Assign any of its rights or obligations under any
Project Document (except to the extent required by the Security Documents) or
any Financing Documents.
(r) Modifications to Organizational Documents. Amend or modify any of
its organizational documents or the Consortium Agreement or any shareholder
agreement or permit or suffer to exist any amendment or modification of any of
its organizational documents or the Consortium Agreement or any shareholder
agreement if in the reasonable opinion of the Intercreditor Agent any such
amendment or modification affects any rights or remedies of any of the Secured
Parties under any Financing Document or would constitute or result in a breach
or default under the Public Works Contract; provided, however, that, the
Borrower shall cause itself to be at all times the sole representative of the
Consortium under the Public Works Contract.
(s) Additional Contracts. Enter into any Additional Project Contract
except (i) any contract relating to Remedial Action in an emergency situation,
(ii) any contract that is necessary in order for the Borrower to satisfy
Requirements of Law, EHS Requirements or a directive of any Governmental
Authority applicable to the Borrower or the Project or (iii) any contract
entered into with an Affiliate (which Affiliate is a party to the Subordination
Agreement) the terms of which are consistent in all respects with the Public
Works Contract; provided, that (x) a Third Party Consent shall be entered into
with respect to each Additional Project Contract by the date that is no later
than thirty (30) days following the execution of each such Additional Project
Contract and (y) all right, title and interest of the Borrower in, to and under
such Additional Project Contract shall be subject to a valid, direct and
perfected first priority Lien in favor of one or more of the Collateral Agents
pursuant to the Security Documents.
(t) Bank Accounts. Maintain any bank, brokerage or other account other
than the Accounts and the Peso Operating Account.
(u) Testing. Perform any Tests without providing the Independent
Engineer reasonable prior written notice thereof and an opportunity to attend
any such Test.
(v) Senior Managers. Remove or replace any of the senior managers
listed in Schedule 4.01(o) hereto, unless such person promptly is replaced with
a senior manager reasonably acceptable to the Intercreditor Agent and the
Independent Engineer.
Section 6.03. Reporting Obligations. So long as any Loan shall remain
unpaid, any Lender shall have any Commitment under any Credit Agreement or any
Obligation shall remain unsatisfied, the Borrower shall, unless the
Intercreditor Agent shall otherwise consent in writing:
(a) Reporting Parties' Reports. Furnish to the Intercreditor Agent in
sufficient copies for each Lender the following:
(i) as soon as possible and in any event within five (5) days
after the occurrence of each Default or Event of Default continuing on the
date of such statement,
62
a statement of a Financial Representative of the Borrower setting forth
details of such Default or Event of Default and the action that the
Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within forty-five (45)
days after the end of each of the first three quarters of each fiscal year
of the Borrower, each Shareholder and each Sponsor (collectively, the
"Reporting Parties") (commencing with the quarter ending September 30,
2007), an unaudited balance sheet of each Reporting Party as of the end of
such quarter, statements of income and retained earnings and of cash flows
of each Reporting Party for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, setting forth
in each case in comparative form corresponding figures from the preceding
fiscal year, all in reasonable detail, together with (A) a written
statement by a Financial Representative of the applicable Reporting Party
to the effect that such financial statements fairly represent such
Reporting Party's financial condition and results of operations, and (B) a
certificate of the Financial Representative of the Borrower stating that no
Default or Event of Default has occurred and is continuing, or if a Default
or an Event of Default has occurred and is continuing, a statement as to
the nature thereof and the action that the Borrower proposes to take with
respect thereto;
(iii) as soon as available and in any event within one hundred
twenty (120) days after the end of each fiscal year of the Reporting
Parties and within one hundred eighty (180) days after the end of each
fiscal year of Power Machines (commencing with the fiscal year ending
December 31, 2007), a copy of the annual audit report for such year for
each of the Reporting Parties and Power Machines, including therein a
balance sheet of each Reporting Party and Power Machines as of the end of
such fiscal year and statements of income and retained earnings and cash
flows of such Reporting Party and Power Machines for such fiscal year,
setting forth in each case in comparative form corresponding figures from
the preceding fiscal year, in each case certified in a manner considered
reasonable by the Intercreditor Agent by a firm of independent public
accountants acceptable to the Intercreditor Agent, together with, in the
case of the Borrower, a certificate of such accounting firm stating that in
the course of the regular audit of the business of the Borrower, which
audit was conducted in accordance with the Applicable GAAP, such accounting
firm has obtained no knowledge that a Default or an Event of Default has
occurred and is continuing, or if a Default or an Event of Default has
occurred and is continuing, a statement as to the nature thereof;
(iv) within fifteen (15) days of the same becoming publicly
available or as soon as the same otherwise become available to the
Borrower, copies of the audited financial statements of CFE (commencing
with the fiscal year ending December 31, 2007) and each other audited or
unaudited (including quarterly) financial statement of CFE publicly or
otherwise available to the Borrower;
(v) promptly (but in any event within five (5) Business Days)
upon receipt of notice or obtaining knowledge thereof, written notice of
any material claims or proceedings with respect to, or modifications of,
any Governmental Approval then required to be in effect;
63
(vi) promptly (but in any event within five (5) Business Days)
upon receipt of notice or obtaining knowledge thereof, written notice of
the occurrence of any event giving rise to a claim under any insurance
policy in an amount greater than U.S.$2,500,000, together with copies of
any document relating thereto (including copies of any such claim) in
possession or control of the Borrower or any agent of the Borrower, as well
as written notice of (i) any proposed cancellation, reduction, non-renewal
or material alteration of any Insurance Policy, (ii) proposed premium
increase in excess of ten percent (10%) with respect to any Insurance
Policy, (iii) any material correspondence in connection with any Insurance
Policy or claim thereunder and (iv) any default under any Insurance Policy,
including in each case a report from the Borrower describing such
occurrences and the potential impact thereof;
(vii) promptly (but in any event within five (5) Business Days)
upon receipt of notice or obtaining knowledge thereof, written notice of
any litigation or proceeding affecting the Borrower or, to the best
knowledge of the Borrower after reasonable investigation, relating to any
injunction or similar action against the Project that, if decided adversely
to the interests of the Borrower or, to the best knowledge of the Borrower
after reasonable investigation, the Project, could result in a liability to
the Borrower or the Project in an amount in excess of U.S.$250,000;
(viii) within five (5) Business Days after receipt by the
Borrower, copies of any EHS Notice;
(ix) contemporaneously with delivery or receipt of the same,
copies of any and all material notices, correspondence, reports, demands,
certificates or other documents given or received under any Project
Document, including a copy of each Monthly Report delivered to CFE pursuant
to the Public Works Contract and all certifications or other responses
thereto received from CFE and all PWC Change Orders;
(x) promptly but in any event within five (5) Business Days of
obtaining knowledge thereof, written notice of any other event that could
reasonably be expected to have a Material Adverse Effect;
(xi) promptly (but in any event within five (5) Business Days)
following entering into the same, written notice (together with sufficient
copies for each Secured Party) of any Additional Project Contract entered
into by the Borrower in accordance with Section 6.02(s);
(xii) promptly (but in any event within five (5) Business Days)
after requested, such other information respecting the business,
properties, condition or operations, financial or otherwise, of the
Borrower or the Project as the Intercreditor Agent may from time to time
reasonably request in writing;
(xiii) within five (5) Business Days after receipt by the
Borrower, copies of all bank statements in respect of the Peso Operating
Account;
64
(xiv) promptly (but in any event within five (5) Business Days)
following the granting thereof, copies of all powers of attorney (or
similar powers, documents or instruments) to any Person;
(xv) not fewer than thirty (30) days prior to the proposed
signature thereof, copies of any proposed amendment or modification of the
organizational documents of the Borrower or of the Consortium Agreement;
(xvi) promptly but in any event within five (5) days of obtaining
knowledge thereof, written notice of any Event of Force Majeure under the
Public Works Contract or any event of force majeure (or similar event of
circumstance) under any other Project Document;
(xvii) promptly but in any event within five (5) days of
obtaining knowledge thereof, written notice of any breach by any Project
Party of any obligation in any Project Document or any Sponsor Guarantee or
of the termination of any Project Document or any Sponsor Guarantee;
(xviii) promptly (but in any event within five (5) Business Days)
upon obtaining knowledge thereof, written notice of any change in senior
management of any Sponsor;
(xix) promptly (but in any event within five (5) days) upon
obtaining knowledge thereof, written notice of any Lien upon or with
respect to any of its assets or properties of any character other than
Liens created in favor of the applicable Collateral Agent pursuant to the
Financing Documents; and
(xx) promptly (but in any event within five (5) Business Days)
upon issuance thereof, a copy of any Performance Guarantee issued following
the Signing Date (together with evidence of the rating by S&P on the
long-term senior unsecured indebtedness of the issuer or, if applicable,
confirming institution, thereof).
(b) Consultants' Reports. Permit each of the Independent Engineer, the
Environmental Consultant, the Insurance Consultant and any other consultant or
advisor to the Secured Parties with respect to the Project to inspect the
Project, to examine and make copies of the Borrower's records concerning the
Project and to discuss the affairs, finances and accounts of the Borrower and
the Project with the Borrower, the Shareholders, the Sponsors and their
respective officers, and provide any other information that the Intercreditor
Agent may reasonably request, in order for the Independent Engineer, the
Environmental Consultant, the Insurance Consultant or such other consultant or
advisor, as the case may be, to timely furnish to the Intercreditor Agent such
reports relating to the Project as the Intercreditor Agent shall from time to
time reasonably request in light of the circumstances then prevailing.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default. Each of the following events shall
constitute an "Event of Default":
65
(a) The Borrower shall fail to pay or prepay any principal of any Loan
when the same becomes due and payable, whether by scheduled maturity or required
prepayment or by acceleration or otherwise; or
(b) The Borrower shall fail to pay any interest on any Loan, Fees,
Non-Excluded Taxes or any other amount payable hereunder or under any other
Financing Document when the same shall become due and payable; or
(c) (i) any representation or warranty made by any Project Party
(other than the Borrower and any other Credit Party), in any Transaction
Document or in any document or certificate delivered pursuant thereto shall
prove to have been untrue or incorrect in any material respect when made or
deemed made and the failure of such representation or warranty to be true and
correct could reasonably be expected to have a Material Adverse Effect, or (ii)
any representation or warranty made by the Borrower or any other Credit Party in
any Transaction Document or by the Borrower or any other Credit Party (or any of
their respective officers) in any document or certificate delivered pursuant
thereto shall prove to have been untrue or incorrect in any material respect
when made or deemed made, and in each case, if the conditions giving rise to the
failure of such representation or warranty to be true and correct are in the
reasonable opinion of the Intercreditor Agent susceptible of cure, such
conditions shall continue uncured for a period of thirty (30) days from the time
the Borrower or such Person, as applicable, obtains knowledge thereof; or
(d) The Borrower shall fail to perform or observe any covenant or
agreement contained in subsection (a), (d), (e), (f), (j), (k), (m), (o), (p) or
(u) of Section 6.01 or in Section 6.02; or
(e) The Borrower shall fail to perform or observe any covenant or
agreement contained in this Common Agreement (other than any covenant or
agreement referred to in subsection (d) above) or any Financing Document or the
Borrower or Power Machines shall fail to perform or observe in any material
respect any other covenant or agreement on its part to be performed or observed
contained in the Electromechanical Contract, and such failure shall remain
unremedied for a period of thirty (30) days after the earlier of (i) the date
the Borrower or such other Project Party, as applicable, obtains knowledge of
such failure or (ii) the receipt by the Borrower or such other Project Party, as
applicable, of notice of such failure from the Intercreditor Agent or, in the
event such failure is incapable of being cured within such thirty (30) day
period and provided that (A) the Borrower or such other Project Party, as
applicable, is diligently proceeding to remedy such failure and (B) no event or
circumstance that in the reasonable opinion of the Intercreditor Agent could be
expected to have a Material Adverse Effect shall have occurred and be
continuing, for a period of sixty (60) days; or
(f) The Borrower, any Sponsor or any other Project Party (other than
CHLY or Power Machines) shall fail to pay any of its Debt that is outstanding in
a principal amount equal to or greater than U.S.$1,500,000 in the aggregate in
the case of the Borrower, a principal amount equal to or greater than
U.S.$100,000,000 in the case of CFE, or an amount equal to or greater than 10%
of the Debt of such Person, in the case of any other applicable Project Party or
any Sponsor (including any interest or premium thereon but excluding
Obligations), when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and
66
such failure shall continue after the applicable grace period, if any, specified
in any agreement or instrument relating to such Debt; or any other default under
any agreement or instrument relating to any such Debt, or any other event, shall
occur and shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such default or event is to cause
or to entitle the holder thereof, or a representative or agent on behalf of such
holder, to accelerate the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required repayment) prior to the stated maturity thereof; or
(g) The Borrower, any Sponsor or any other Project Party shall (i)
become insolvent or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, debts as they become due; (ii) apply for,
consent to, or acquiesce in, the appointment of a trustee, receiver,
sequestrator, liquidator, custodian or other similar official for itself or any
substantial part of the property of any thereof, or make a general assignment
for the benefit of creditors; (iii) in the absence of such application, consent
or acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator, liquidator, custodian or other similar official for it
or for a substantial part of the property of any thereof, and such trustee,
receiver, sequestrator, liquidator, custodian, or other similar official shall
not be permanently discharged within sixty (60) days of appointment; (iv) cause,
permit or suffer to exist the commencement of any bankruptcy, reorganization,
debt arrangement, liquidation, composition, dissolution, adjustment or similar
proceeding, case or relief under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or seeking the entry of an order for relief, and, in the case
of a proceeding instituted against, and without the consent or acquiescence of,
the Borrower or such Sponsor or other Project Party, an order for relief shall
have been entered or such proceeding shall not have been dismissed or stayed on
the date sixty (60) days after the commencement of such proceeding; or (v) shall
take any corporate action authorizing, or in furtherance of, any of the
foregoing; or
(h) Any Contractor PWC Event of Default or Commission PWC Event of
Default shall have occurred and be continuing; or
(i) The Public Works Contract is repudiated, becomes unenforceable
against any Person or is terminated prior to its stated termination date or
pursuant to the terms thereof (x) the Scheduled Provisional Acceptance Date
of the First Unit ceases to be a date on or before January 2, 2012 (as
extended not more than two hundred seventy (270) days for Permissible
Provisional Acceptance Delays) or the Scheduled Project Completion Date
ceases to be a date on or before June 11, 2012 (as extended not more than
two hundred seventy (270) days for Permissible Project Completion Delays);
or
(j) Any Project Document (other than the Public Works Contract) is
repudiated, becomes unenforceable against any Person or is terminated prior to
its stated termination date, and such repudiation, unenforceability or
termination is not cured or waived within a period of thirty (30) days after the
occurrence thereof, or if such repudiation, unenforceability or termination is
not capable of cure or waiver within thirty (30) days, the Borrower shall have
entered into a replacement agreement in form and substance satisfactory to the
Intercreditor Agent within sixty (60) days after the occurrence thereof; or
67
(k) Any material provision of any Transaction Document, after
execution and delivery thereof, shall for any reason other than the express
terms thereof cease to be valid and binding on any party thereto or any party to
such Transaction Document shall so assert in writing; or
(l) The Security Documents, once signed, shall for any reason, except
to the extent permitted by the terms hereof or thereof, cease to create a valid
and perfected first priority Lien (to the extent purported to be granted by such
documents), subject to Permitted Liens, in any portion of the Collateral or any
Power of Attorney shall terminate or otherwise cease to be in full force and
effect or the issuer thereof shall purport to terminate, revoke or rescind such
Power of Attorney; or
(m)Any final judgment or order for the payment of money for any reason
shall be rendered against the Borrower or the Project, in an amount in excess of
U.S.$1,500,000, against CFE in an amount in excess of U.S.$100,000,000 or
against any Sponsor or Project Party (other than CHLY or Power Machines) in an
amount equal to or greater than 10% of the Debt of such Person, and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order, or (ii) there shall be any period of thirty (30) consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(n) Any Sponsor shall fail to perform or observe any material covenant
or agreement contained in any Sponsor Guarantee and such failure shall remain
unremedied or unexcused beyond the period of grace, if any, extended to such
Sponsor with respect to such failure, as specified in such Sponsor Guarantee or
any Sponsor shall at any time fail to have all Governmental Approvals (on terms
and conditions satisfactory to the Intercreditor Agent) required for its
execution, delivery or performance (including any contingent and/or future
performance) by it of its obligations under the Sponsor Guarantee to which it is
a party, including any such Governmental Approval required in connection with
the obtaining of U.S. Dollars to make payment under such Sponsor Guarantee to
Persons or accounts resident or located in the United States of America; or
(o) An Event of Loss shall have occurred; or
(p) The Consortium shall at any time abandon, or voluntarily cease all
or substantially all activities in connection with, the Project; provided, that
the suspension of the Works pursuant to the terms of the Public Works Contract
upon the occurrence and during the continuance of any Event of Force Majeure
duly notified to CFE shall not constitute an Event of Default hereunder unless
any such suspensions cause any Provisional Acceptance Date or the Project
Completion Date under the Public Works Contract to be extended by more than
sixty (60) days (in the case of any Governmental Force Majeure) or two hundred
seventy (270) days (in the case of any other Event of Force Majeure) beyond the
date set forth in the Construction Schedule delivered on the Signing Date; or
(q) At any time there shall be a transfer of any equity interest in
the Borrower; or
68
(r) Any Principal Subcontractor shall fail to pay any material
subcontractor thereof in accordance with the terms of any material subcontract
entered into by it in connection with the Project (except for any amount that is
the subject of a Good Faith Contest by such Principal Subcontractor) and (except
with respect to any such payments that are set forth in any Notice of Borrowing
delivered by the Borrower hereunder and in respect of which any Working Capital
Facility Borrowing or Construction Facility Borrowing has been effected) such
failure shall continue unremedied for a period of thirty (30) days; or
(s) CFE shall fail to comply in all material respects with any
Requirement of Law or EHS Requirement, in each case with respect to the Project,
and such failure shall continue unremedied for a period of sixty (60) days; or
(t) Any event or circumstance that in the reasonable opinion of the
Intercreditor Agent (acting at the direction of each of the Working Capital
Facility Majority Lenders and the Construction Facility Majority Lenders) could
be expected to have a Material Adverse Effect shall have occurred and be
continuing; or
(u) Any Sponsor Guarantee is repudiated, becomes unenforceable against
any applicable Sponsor or is terminated or expires prior to its stated
termination or expiry date, and such repudiation, unenforceability or
termination is not cured within a period of fifteen (15) days after the
occurrence thereof.
(v) The Construction Facility Closing Date shall not have occurred by
the date that is no later than one hundred twenty (120) days following the
Signing Date.
Section 7.02. Acceleration.
(a) Upon the occurrence and during the continuance of any Event of
Default, either Facility Administrative Agent shall, if so directed pursuant to
the terms of the Credit Agreement to which it is party in such capacity and in
respect only of the Credit Facility created pursuant thereto: (i) declare, upon
notice to the Borrower and, as applicable, each Working Capital Facility Lender
or each Construction Facility Lender, the applicable Commitments and the
obligation of each such Lender to make Working Capital Loans or Construction
Loans (as applicable) to be terminated, whereupon the same shall forthwith
terminate, (ii) direct the Offshore Collateral Agent to draw upon, and exercise
any rights and remedies under, any Sponsor Guarantee and (iii) declare, upon
notice to the Borrower and, as applicable, each Working Capital Facility Lender
or each Construction Facility Lender, all interest and all Working Capital
Facility Obligations or all Construction Facility Obligations, as applicable, to
be forthwith due and payable, whereupon all such interest and all Working
Capital Facility Obligations or all Construction Facility Obligations, as
applicable, shall become and be forthwith due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by the Borrower.
(b) Upon the occurrence and during the continuance of any Event of
Default, the Intercreditor Agent shall, if so directed pursuant to the terms of
the Intercreditor Agreement (once executed) (i) direct the applicable Collateral
Agent to exercise in respect of the Collateral (except for any Working Capital
Facility Collateral), in addition to the other rights and remedies
69
provided for herein and in the Security Documents or otherwise available to the
Secured Parties, any or all of the rights and remedies of a secured party under
the Uniform Commercial Code in effect in the State of New York and in effect in
any other jurisdiction in which Collateral (except for any Working Capital
Facility Collateral) is located at that time and/or (ii) direct the applicable
Collateral Agent to exercise any or all of the other rights and remedies
provided for under the Financing Documents.
(c) Upon the occurrence and during the continuance of any Event of
Default, the Working Capital Facility Administrative Agent shall, if so directed
pursuant to the terms of the Working Capital Facility Credit Agreement (i)
direct the Offshore Collateral Agent to direct the Offshore Depositary Bank to
liquidate and withdraw (and the Offshore Depositary Bank shall liquidate and
withdraw) from all available Working Capital Facility Collateral (whether in the
form of any demand deposit, Permitted Investment or otherwise) and transfer such
amounts to the Working Capital Facility Administrative Agent and/or (ii) deliver
a withdrawal certificate to the full extent then permitted in the full amount
available to then be drawn under all Disbursement LCs to each Disbursement LC
Provider.
(d) Notwithstanding anything in this Section 7.02 to the contrary, in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under applicable bankruptcy, insolvency, reorganization, concurso
mercantil, conciliacion or other similar law, or in the event of any other
proceeding or event that has the effect of staying the Intercreditor Agent,
either Facility Administrative Agent or any other Secured Party, in each case as
applicable, from taking any of the actions specified in sub-sections (a), (b) or
(c) above or delivering any notice under this Section 7.02, (A) the Commitments
and the obligation of each Lender to make Loans shall automatically be
terminated, and (B) all interest, all Obligations and all other amounts payable
hereunder and under the other Financing Documents shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrower.
Section 7.03. Other Remedies. Upon the occurrence and during the
continuance of any Event of Default, subject to the Intercreditor Agreement
(once executed), the Secured Parties shall be entitled to exercise any of the
remedies specified below:
(a) Enforcement of Remedies Generally. The Secured Parties, subject to
the Intercreditor Agreement (once executed), may proceed to protect and enforce
the rights, privileges and remedies granted to them by this Common Agreement and
the other Financing Documents by instituting such judicial or other proceedings,
filing proofs of claim or other documents establishing their claim in any
proceedings with respect to the Borrower and by taking all such other actions as
the requisite Lenders may determine, subject to the Intercreditor Agreement
(once executed), either at law, in equity, in bankruptcy or otherwise, whether
for specific enforcement of any covenant or agreement contained in this Common
Agreement or any other Financing Document, or in aid of the exercise of any
right, power, privilege or remedy granted herein or therein, or for any
foreclosure upon the Collateral and sale thereof under any order, judgment or
decree in any judicial proceeding, or to enforce any other legal or equitable
right or remedy granted or otherwise available to the Secured Parties, subject
to the Intercreditor Agreement (once executed), under this Common Agreement or
under any other Financing Document. The remedies hereunder are cumulative and
are in addition to and not in substitution
70
for any other rights or remedies provided by applicable laws or by any of the
Financing Documents. In addition to any other rights, privileges and remedies
which they may have, the Secured Parties, subject to the Intercreditor Agreement
(once executed), shall have and may exercise in respect of the Collateral any
and all rights and remedies granted to a secured party upon default under
Article 9 of the Uniform Commercial Code as in effect in the State of New York
from time to time and the rights and remedies of a secured party under any other
applicable Law, in each case with respect to the Collateral subject to the laws
of such jurisdiction.
(b) Specific Remedies. Without limiting the generality of the
provisions of Section 7.03(a), the Secured Parties, subject to the Intercreditor
Agreement (once executed), shall have and may exercise any and all of the
following rights, privileges and remedies to the extent permitted by law, none
of which is intended to be exclusive and each of which shall be in addition to
any other right, privilege or remedy otherwise available to the Secured Parties,
subject to the Intercreditor Agreement (once executed), hereunder or under any
other Financing Document or at law or in equity:
(i) The Secured Parties, subject to the Intercreditor Agreement
(once executed), may require the Borrower, at the Borrower's expense, to
assemble the Collateral at a place or places designated by notice in
writing given to the Borrower or require the Borrower, by notice in
writing, to disclose the location or locations of all or any part of the
Collateral.
(ii) The Secured Parties, subject to the Intercreditor Agreement
(once executed), may immediately take possession of the Collateral by
force, summary proceeding, ejectment or otherwise and may remove any and
all such Collateral therefrom and may sell, assign, transfer or otherwise
dispose thereof and receive all proceeds with respect thereto as provided
in this Section 7.03.
(iii) Upon any such taking of possession of any Collateral, the
Secured Parties, subject to the Intercreditor Agreement (once executed),
may, from time to time, at the expense of the relevant Borrower, make all
such expenditures for maintenance, insurance, repairs, replacements,
alterations, additions and improvements to and of such Collateral as it may
deem reasonably necessary to effectuate a sale thereof pursuant to clause
(ii) of this Section 7.03(b). In each such case, the Secured Parties,
subject to the Intercreditor Agreement (once executed), shall have the
right to use, operate, repair, process, modify, complete, maintain,
preserve, replace, store, control or manage such Collateral and to exercise
all rights and powers of the Borrower relating to such Collateral in such
manner as the Secured Parties, subject to the Intercreditor Agreement (once
executed), may determine, including the right to enter into any and all
such agreements with respect to the maintenance, operation, repair,
processing, modification, completion, preservation, replacement, leasing,
storage or disposition of the Collateral or any part thereof.
(iv) Whether or not the Secured Parties, subject to the
Intercreditor Agreement (once executed), have taken possession of the
Collateral or any part of it, the Secured Parties, subject to the
Intercreditor Agreement (once executed), may take any action or proceedings
to enforce the performance of any covenant in favor of the
71
Borrower contained in any Transaction Document or any other agreement respecting
the Collateral.
(v) The Secured Parties, subject to the Intercreditor Agreement
(once executed), may, upon no less than fourteen (14) days' notice to the
Borrower of the date, time and place of any proposed sale, sell or cause
the sale of, for such price or prices, either for cash, credit or both and
on such terms as the Secured Parties, subject to the Intercreditor
Agreement (once executed), in their sole reasonable discretion may
determine or as may be required by law, and at the sole expense of the
Borrower, all or any part of the Collateral at one or more public auctions
or venues (at which the Borrower, the Offshore Collateral Agent, the
Onshore Collateral Agent or any other Secured Party may be a bidder) or by
private sale, pursuant to all applicable Requirements of Law, to convey all
or any part of the Collateral to the purchaser at such sale or sales,
whether or not either Collateral Agent has possession thereof at the time
of such sale, to rescind or vary any contract for sale, lease or other
disposition that may have been entered into pursuant hereto and resell,
release or redispose of all or any part of the Collateral with or under any
of the powers conferred herein, and to stop, suspend or adjourn any sale,
lease or other disposition from time to time and to hold the same as
adjourned without further notice.
(vi) The Secured Parties, subject to the Intercreditor Agreement
(once executed), may take such steps pursuant to the Security Documents as
may be required to complete construction of the Project and/or start-up,
test, operate and maintain the Project and, to the exclusion of all others
including the Borrower, enter upon, occupy and use all or any of the
premises, buildings, plant, undertaking and other property of or used by
the Borrower for such time as the Secured Parties, subject to the
Intercreditor Agreement (once executed), see fit, free of charge, and the
Secured Parties, subject to the Intercreditor Agreement (once executed),
shall not be liable to the Borrower for any act, omission or negligence in
so doing or for any rent, charges, depreciation or damages incurred in
connection therewith or resulting therefrom, except as set forth in Section
8.04.
(vii) The Secured Parties, subject to the Intercreditor Agreement
(once executed), may refuse, and any Lenders shall not be obligated, to
make any Working Capital Facility Borrowings or Construction Facility
Borrowings or make any payments from any Account or other funds held by
either Collateral Agent and the Lenders may suspend or terminate the
Commitments.
(viii) The Secured Parties, subject to the Intercreditor
Agreement (once executed), may set off and apply all monies on deposit in
any Account or any other moneys of the Borrower on deposit with the
Collateral Agents or the Offshore Depositary Bank to the satisfaction of
the Obligations under all of the Financing Documents.
(ix) The Secured Parties, subject to the Intercreditor Agreement
(once executed), may cure any defaults and exercise any and all other
rights and remedies available to them under any of the Transaction
Documents.
72
(x) The Borrower shall permit (A) the Intercreditor Agent and the
Collateral Agents to communicate directly with the Borrower's auditors
concerning such Borrower's financial condition and (B) copies or extracts
of relevant books and records of the Borrower to be made available to the
Intercreditor Agent and the Collateral Agents.
(c) Effect of Exercise of Remedies. The taking of such actions by the
Secured Parties, subject to the Intercreditor Agreement (once executed), shall
not cure or waive any Event of Default theretofore or thereafter occurring or
affect any notice or Event of Default hereunder or invalidate any act done
pursuant to any such Event of Default or notice, and, notwithstanding such
actions, the Secured Parties, subject to the Intercreditor Agreement (once
executed), shall be entitled to exercise every right provided for herein or in
any other Financing Document or by law or in equity upon or after the occurrence
of an Event of Default, including the right to exercise the power of sale. Any
of the actions referred to in this Section 7.03(c) may be taken by the Secured
Parties, subject to the Intercreditor Agreement (once executed), irrespective of
whether any notice of election to sell has been given hereunder and without
regard to the adequacy of the security for the indebtedness and obligations
secured by any Security Document.
(d) Waiver of Appraisement, Valuation, etc. To the full extent it may
lawfully do so, the Borrower, both for itself and for any other Person who may
claim through or under it, hereby (i) agrees that neither it nor any such Person
will set up, plead, claim or in any manner whatsoever take advantage of, any
appraisal, valuation, stay, extension or redemption laws, now or hereafter in
force, or any rights of marshalling in the event of any sale of the Collateral
or any part thereof or any interest therein, (ii) waives all benefit or
advantage of any such laws and waives and releases any and all such rights,
(iii) consents and agrees that the Collateral may be sold by the Secured
Parties, subject to the Intercreditor Agreement (once executed), in its entirety
or in parts, and (iv) agrees that neither it nor any such Person will claim,
demand or otherwise be entitled to any credit against or deduction from the
principal, interest, fees or any other sums which may become payable under the
terms of any Financing Document by reason of the payment of any tax, assessment
or other municipal or governmental charge or imposition on or relating to the
Collateral or any part thereof, nor will it claim or otherwise be entitled to
any deduction from the taxable or assessed value of the Collateral or any part
thereof by reason of this Common Agreement or any other Transaction Document.
Section 7.04. Additional Rights of Secured Parties.
(a) No Possession of Promissory Notes Required. All proofs of claim,
rights of action and rights to assert claims under this Common Agreement or
under any other Financing Document may be enforced by the Secured Parties,
subject to the Intercreditor Agreement (once executed), without the possession
of any promissory notes at any trial or other proceedings instituted by the
Secured Parties (or any of them), subject to the Intercreditor Agreement (once
executed), and any such trial or other proceedings may be brought by the
applicable Collateral Agent or the Intercreditor Agent, as applicable, in its
own name as trustee of an express trust, and any recovery or judgment shall be
for the benefit of the Secured Parties. In any proceedings brought by either
Collateral Agent or the Intercreditor Agent, as applicable (and also any
proceedings involving the interpretation of any provision of any Financing
Document to which either Collateral Agent or the Intercreditor Agent shall be a
party) such Collateral Agent or the
73
Intercreditor Agent, as applicable, shall be deemed to represent all the Secured
Parties, and it shall not be necessary to make any such other Secured Parties
party to such proceedings.
(b) Right to Perform Covenants, etc. If the Borrower shall fail to
make any payment required to be made or perform any act required to be performed
by it hereunder or under any other Transaction Document, the Intercreditor
Agent, either Collateral Agent or their designees, subject to the Intercreditor
Agreement (once executed), upon reasonable notice to the Borrower but without
waiving or releasing any obligation or default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of the Borrower. All sums so paid and all costs
and expenses (including, without limitation, reasonable fees and expenses of
legal counsel and other professionals) so incurred, together with interest
thereon from the date of payment or occurrence, shall constitute Obligations
secured by the Security Documents and shall be paid from the Collateral to the
applicable Collateral Agent on demand.
(c) Action by Collateral Agents. Whenever in this Article VII either
Collateral Agent is authorized or empowered to take any action or refrain from
taking any action, such Collateral Agent shall so act or refrain from acting on
the basis of a direction from the Intercreditor Agent, upon which it may rely
conclusively. In the absence of such direction, the Collateral Agents shall not
be required to take any action and neither Collateral Agent shall in any way be
liable to any Secured Party for the failure to take any action in the absence of
such direction or for taking any action in accordance therewith.
Section 7.05. Notice to Borrower. Without prejudice to any rights and
remedies of the Secured Parties, the Intercreditor Agent shall provide to the
Borrower notice of any meeting held pursuant to the Intercreditor Agreement
(once executed); provided, however, that the Borrower shall have no right to be
present at or otherwise to vote or participate in the same. Notwithstanding the
foregoing, the Borrower and each other party hereto hereby agrees that any delay
in giving or any failure to give the notice referenced in this Section 7.05
shall not affect the rights of any Secured Party under this Common Agreement or
any other Transaction Document or the validity of any poll, approval or other
action taken or approved at any such meeting.
ARTICLE VIII
THE COLLATERAL AGENTS
Section 8.01. Appointment and Duties of Collateral Agents. Each of the
Secured Parties (other than the Offshore Collateral Agent) hereby designates and
appoints Citibank, N.A. to act as the Offshore Collateral Agent hereunder and
under the other Financing Documents to which it is a party, and the Secured
Parties hereby authorize Citibank, N.A., as the Offshore Collateral Agent, to
take such actions on their behalf at the direction of the Intercreditor Agent in
accordance with the applicable Financing Documents to which the Offshore
Collateral Agent is a party and to exercise such powers and perform such duties
as are expressly delegated to the Offshore Collateral Agent by the express terms
thereof, together with such other powers as are reasonably incidental thereto.
The Intercreditor Agent on behalf of each of the Secured Parties (other than the
Onshore Collateral Agent) hereby designates and appoints Banco Nacional de
Mexico, S.A., Integrante del Grupo Financiero Banamex to act as the Onshore
Collateral Agent hereunder and under the other Financing Documents to which it
is a party, and the Intercreditor
74
Agent hereby authorizes and appoints the Onshore Collateral Agent and as an
agent (comisionista) pursuant to Articles 273 and 274 of the Mexican Commerce
Code (Codigo de Comercio), to execute the Mexican Security Documents and the
other Financing Documents to which it is (or is to become) a party, on behalf of
and for the benefit of the Secured Parties, and to take such actions on their
behalf at the direction of the Intercreditor Agent in accordance with the
applicable Financing Documents to which the Onshore Collateral Agent is a party
and to exercise such powers and perform such duties as are expressly delegated
to the Onshore Collateral Agent by the express terms thereof, together with such
other powers as are reasonably incidental thereto. Each of the parties hereto
hereby acknowledges that it is aware of the content of Section XIX of Article
106 of the Credit Institutions Law (Ley de Instituciones de Credito) of Mexico
and of Official Letter 1/2005 of the Central Bank of Mexico with respect to the
Onshore Collateral Agent's appointment and duties hereunder. Notwithstanding any
provision to the contrary elsewhere in the Financing Documents, neither of the
Collateral Agents shall have any duties or responsibilities, except those
expressly set forth in the Financing Documents to which it is a party, or any
fiduciary relationship with any Secured Party regardless of whether a Default or
Event of Default has occurred and is continuing under any Financing Document,
and no implied covenants, functions or responsibilities shall be read into this
Common Agreement or the other Financing Documents or otherwise exist against
either Collateral Agent. Without limiting the generality of the foregoing,
neither Collateral Agent shall be called upon to advise any party as to the
wisdom in taking or refraining to take any action with respect to the
Collateral. Each of the Collateral Agents may execute any of its duties under
the Security Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties
and shall not be responsible for the acts or omissions of any such agents,
attorneys-in-fact and counsel selected by them in good faith without gross
negligence, bad faith or willful misconduct on their part. Each of the
Collateral Agents may also from time to time, when either Collateral Agent deems
it to be necessary or desirable, appoint one or more custodians, collateral
co-agents, collateral subagents or attorneys-in-fact with respect to all or any
part of the Collateral; provided, however, that, no such person shall be
authorized to take any action with respect to any Collateral unless and except
to the extent expressly authorized in writing by the respective Collateral
Agent. An opinion of counsel may be based, insofar as it relates to factual
matters of which the Borrower has knowledge, upon the certificate or opinion of
or representation by an officer or officers of the Borrower unless such counsel
knows the certificate, opinion or representation upon which such counsel's
opinion may be based is erroneous, or in the exercise of reasonable care should
have known the same was erroneous. Neither of the Collateral Agents shall be
under any obligation to exercise any of the rights or powers vested in it by
this Common Agreement in any manner that would be contrary to applicable Law.
Section 8.02. Direction of Collateral Agents by Intercreditor Agent; Action
by Collateral Agents.
(a) Neither Collateral Agent shall be required to exercise (and shall
refrain from exercising) any rights or remedies under any of the Financing
Documents or give any consent under any of the Financing Documents or enter into
any agreement amending, modifying, supplementing or waiving any provision of any
Financing Document unless it shall have been directed to do so by the
Intercreditor Agent. No direction given to either Collateral Agent which
imposes, or purports to impose, upon such Collateral Agent any obligation not
set forth in or
75
arising under this Common Agreement shall be binding upon such Collateral Agent
unless the Collateral Agent elects, at its sole option, to accept such
direction.
(b) Each Collateral Agent shall act only on the instructions of,
following the execution of the Intercreditor Agreement, the Enforcing Required
Lenders (or, if such action is not subject to the Intercreditor Agreement, on
the instructions of each of the Working Capital Facility Majority Lenders and
the Construction Facility Majority Lenders) so directing the Intercreditor
Agent. Each Collateral Agent shall in all cases be fully protected in acting, or
in refraining from acting, under any Financing Document in accordance with a
request of the relevant Persons in accordance with terms of this Common
Agreement and of the Intercreditor Agreement, and such request and any action
taken or failure to act pursuant hereto or thereto shall be binding upon all of
the Secured Parties.
(c) Any Person which shall be designated as a duly authorized
representative of any or all of the Secured Parties to act in connection with
any matters pertaining to this Common Agreement or the Collateral shall present
to the relevant Collateral Agent such documents, including opinions of counsel,
as such Collateral Agent may reasonably request, in order to demonstrate to such
Collateral Agent the authority of such Person to so act.
Section 8.03. Administration of Collateral. Each of the Secured Parties
hereby acknowledges and agrees that each Collateral Agent shall administer the
Collateral or its part to be administered in the manner contemplated by this
Common Agreement and the Financing Documents and each Collateral Agent shall
exercise such rights and remedies with respect to the Collateral as are granted
to it under the Financing Documents and applicable Law. No Secured Party and no
class or classes of Secured Parties shall have any right (i) to direct either
Collateral Agent to take any action in respect of the Collateral other than as
provided in this Common Agreement or the Intercreditor Agreement or (ii) to take
any action with respect to the Collateral (A) independently of the applicable
Collateral Agent or (B) other than to direct the applicable Collateral Agent to
take action in accordance with this Common Agreement or the Intercreditor
Agreement.
Section 8.04. Collateral Agent Reliance, Etc. Neither of the Collateral
Agents nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with any Financing Document, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, each Collateral Agent: (i) may employ, retain and consult with legal
counsel (including counsel for the Borrower) and other experts and advisers
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel, experts
or advisers; (ii) makes no warranty or representation to any Secured Party and
shall not be responsible to any Secured Party for any statements, warranties or
representations made in or in connection with any Financing Document; (iii)
makes no representations as to the nature of title or value of any of the
Accounts nor as to the title thereto, nor as to the rights and interests granted
or the security afforded by this Common Agreement, the Security Documents or any
other Transaction Documents nor as to the validity, execution (except by
itself), enforceability, legality or sufficiency of this Common Agreement, the
Security Documents or any other Transaction Documents; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any
76
Financing Document on the part of the Borrower or any other Person party thereto
or to inspect the Project or any other property (including the books and
records) of the Borrower; (v) shall not be responsible to any Secured Party for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Financing Document or any other instrument or document furnished
pursuant thereto; (vi) shall not be liable for any error of judgment made in
good faith by an officer or officers of such Collateral Agent, unless it shall
be conclusively determined by a court of competent jurisdiction that such error
resulted from such Collateral Agent's gross negligence; (vii) shall not be bound
to make any investigation into the facts stated in any resolution, certificate,
statement, instrument, opinion, report, consent, order, approval, bond or other
document or have any responsibility for filing or recording any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder; (viii) shall not be responsible for the accuracy or content of any
certificate, statement, direction or opinion furnished to it in connection with
this Common Agreement; (ix) shall not be responsible for any mistake, omission
or error of judgment with respect to the value or valuation, genuineness,
enforceability, existence, perfection or priority of any of the Collateral, the
determination of the fair market value of any Collateral, or any other matters
determined hereunder or under the other Financing Documents, unless, in each
case, it shall be conclusively determined by a court of competent jurisdiction
that such mistake, omission or error resulted from such Collateral Agent's gross
negligence or willful misconduct; and (x) shall incur no liability under or in
respect of any Financing Document and may conclusively rely and act upon any
notice, consent, certificate or other instrument or writing (which may be
personally delivered, sent by overnight courier or by facsimile transmission)
believed by it to be genuine and signed or sent by the proper party or parties.
Each Collateral Agent shall be fully justified in failing or refusing to take
any action under any Financing Document (x) if such action would, in the opinion
of such Collateral Agent, be contrary to law or the terms of such Financing
Document, (y) if such action is not specifically provided for in such Financing
Document or, if such Collateral Agent shall determine in good faith that the
provisions of such Financing Document relating to the functions or
responsibilities or discretionary powers of such Collateral Agent are or may be
ambiguous or inconsistent, it shall not have received any such advice or
concurrence of the Working Capital Facility Majority Lenders and the
Construction Facility Majority Lenders or, following execution of the
Intercreditor Agreement, the Enforcing Required Lenders, as it deems
appropriate, or (z) if, in connection with the taking of any such action that
would constitute an exercise of remedies under such Financing Document, it shall
not first be indemnified to its satisfaction by the Borrower or the Secured
Parties against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action.
Section 8.05. Knowledge of Event of Default. Neither of the Collateral
Agents shall be deemed to have actual, constructive, direct or indirect
knowledge or notice of the occurrence of any Default or Event of Default unless
and until such Collateral Agent has received written notice or a certificate
from another Secured Party or the Borrower in the manner and at the address set
forth in Section 10.02 stating that a Default or Event of Default has occurred,
and such notice or certificate references the Borrower and this Common
Agreement. Neither of the Collateral Agents shall have any obligation whatsoever
either prior to or after receiving such notice or certificate to inquire whether
a Default or Event of Default has in fact occurred and shall be entitled to rely
conclusively, and shall be fully protected in so relying, on any notice or
certificate so furnished to it. No provision of this Common Agreement or any
Security
77
Document shall require either Collateral Agent to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties thereunder or in the exercise of any of its rights or powers if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it. In the
event that either Collateral Agent receives such a notice of the occurrence of
any Default or Event of Default, such Collateral Agent shall give notice thereof
to the Secured Parties, but notwithstanding the foregoing, each party hereto
hereby agrees that any delay in giving or any failure to give the notice
referenced in this Section 8.05 shall not affect the rights of any Secured Party
under this Common Agreement or any other Transaction Document or the validity of
any poll, approval or other action taken or approved at any meeting. Thereafter,
subject to this Article VIII, the respective Collateral Agent shall act, or
decline to act, as directed in writing by the Intercreditor Agent or the Working
Capital Facility Administrative Agent, as applicable, in the exercise and
enforcement of such Collateral Agent's interests, rights, powers and remedies in
respect of the Collateral or under the Financing Documents or applicable law
and, following the initiation of such exercise of remedies, such Collateral
Agent will act, or decline to act, with respect to the manner of such exercise
of remedies as directed in writing by the Intercreditor Agent or the Working
Capital Facility Administrative Agent, as applicable.
Section 8.06. Successor Collateral Agents.
(a) Each Collateral Agent may resign as Offshore Collateral Agent or
Onshore Collateral Agent, as applicable, upon thirty (30) days' notice to the
Intercreditor Agent and, so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower and may be removed at any time with or
without cause by the decision of each of the Working Capital Facility Required
Lenders and the Construction Facility Required Lenders, with any such
resignation or removal to become effective only upon the appointment of a
successor Offshore Collateral Agent or Onshore Collateral Agent, as applicable,
under this Section 8.06(a). If the applicable Collateral Agent shall resign or
be removed as Offshore Collateral Agent or Onshore Collateral Agent, as
applicable, then the Working Capital Facility Required Lenders and the
Construction Facility Required Lenders shall (and if no such successor shall
have been appointed within thirty (30) days of such Collateral Agent's
resignation or removal, such Collateral Agent may) appoint a successor agent for
the Secured Parties, which successor agent shall, unless an Event of Default has
occurred and is continuing, be acceptable to the Borrower, acting reasonably or,
in the case of the Offshore Collateral Agent, petition a court of competent
jurisdiction for a replacement agent for the Secured Parties.
(b) Without limiting anything set forth in Section 8.06(a), if at any
time the Collateral Agents and the Offshore Depositary Bank cease to be
Affiliates of each other, the Intercreditor Agent shall have the right to remove
the Onshore Collateral Agent and/or the Offshore Collateral Agent upon thirty
(30) days' prior written notice to the Borrower, the Offshore Collateral Agent
and the Onshore Collateral Agent, with any such removals to become effective
only upon the appointment of a successor Offshore Collateral Agent and/or a
successor Onshore Collateral Agent. Upon any removal of any Collateral Agent
under this Section 8.06(b), the Intercreditor Agent may appoint a successor
agent for the Secured Parties, which successor agent shall, unless an Event of
Default has occurred and is continuing, be acceptable to the Borrower, acting
reasonably.
78
(c) Upon the appointment of any successor agent under this Section
8.06, such successor agent shall succeed to the rights, powers and duties of the
"Offshore Collateral Agent" or "Onshore Collateral Agent", as applicable, and
the term "Offshore Collateral Agent" or "Onshore Collateral Agent" shall mean
such successor agent effective upon its appointment, and the rights, powers and
duties of the former Offshore Collateral Agent or Onshore Collateral Agent, as
applicable, shall be terminated, without any other or further act or deed on the
part of such former Collateral Agent (except that the applicable Collateral
Agent that is resigning or being removed shall deliver all Collateral then in
its possession to the successor Offshore Collateral Agent or Onshore Collateral
Agent, as applicable) or any of the other Secured Parties. After any Collateral
Agent's resignation or removal hereunder as Offshore Collateral Agent or Onshore
Collateral Agent, as applicable, the provisions of this Article VIII shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Offshore Collateral Agent or Onshore Collateral Agent, as applicable.
Section 8.07. Damages. Anything in this Common Agreement to the contrary
notwithstanding, in no event shall the Offshore Collateral Agent be liable under
or in connection with this Common Agreement or any Financing Document for
indirect, special, incidental, punitive or consequential losses or damages of
any kind whatsoever, including but not limited to lost profits, whether or not
foreseeable, even if the Offshore Collateral Agent has been advised of the
possibility thereof and regardless of the form of action in which such damages
are sought.
Section 8.08. Relating to the Collateral Agents.
(a) The Borrower will pay upon demand to either Collateral Agent the
amount of any and all out-of-pocket expenses, including the fees and expenses of
its counsel (and any local counsel) and of any experts and agents, which such
Collateral Agent may incur in connection with (i) the administration of this
Common Agreement and the other Financing Documents, (ii) the exercise or
enforcement (whether through negotiations, legal proceedings or otherwise) of
any of the rights of such Collateral Agent or the Secured Parties hereunder or
under the other Financing Documents or (iii) the failure by the Borrower to
perform or observe any of the provisions hereof or of any of the other Financing
Documents.
(b) The Lenders agree to indemnify each Collateral Agent (to the
extent not reimbursed by the Borrower), ratably, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against either Collateral Agent in any way
relating to or arising out of this Common Agreement or any Financing Document or
any action taken or omitted by either Collateral Agent under any Financing
Document; provided, that none of the Lenders shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Collateral Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse either Collateral Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by such Collateral Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, any Financing Document to the
extent that such Collateral Agent is entitled to reimbursement for
79
such expenses pursuant to Section 10.04 but is not reimbursed for such expenses
by the Borrower. The provisions of this Section 8.08(b) shall survive the
resignation or removal of either Collateral Agent, the payment and performance
of the Obligations and the satisfaction and discharge or other termination of
this Common Agreement. Anything in this Common Agreement to the contrary
notwithstanding, in no event shall either Collateral Agent be liable under or in
connection with this Common Agreement for indirect, special, incidental,
punitive or consequential losses or damages of any kind whatsoever, including
but not limited to lost profits, whether or not foreseeable, even if such
Collateral Agent has been advised of the possibility thereof and regardless of
the form of action in which such damages are sought.
(c) Each of the Secured Parties expressly acknowledges that neither
the Collateral Agents nor any of their respective officers, directors,
employees, agents or attorneys-in-fact has made any representations or
warranties to it and that no act by either of the Collateral Agents hereinafter
taken, including, without limitation, any review of the Project or of the
affairs of the Borrower, shall be deemed to constitute any representation or
warranty by either Collateral Agent to any Secured Party. Each Secured Party
represents that it will, independently and without reliance upon either
Collateral Agent or any other Secured Party, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Common Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Project and the Borrower.
(d) Beyond the exercise of reasonable care in the custody of
Collateral in its possession and the accounting for moneys actually received by
it hereunder, neither Collateral Agent shall have any duty as to any Collateral,
as to ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Collateral,
whether or not any Secured Party has or is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to any Collateral. Each Collateral
Agent will be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which it accords similar property, and neither
Collateral Agent will be liable or responsible for any loss or diminution in the
value of any of the Collateral by reason of the act or omission of any carrier,
forwarding agency or other agent or bailee selected by such Collateral Agent in
good faith and in the absence of gross negligence or willful misconduct.
(e) Whenever in the administration of the provisions of this Common
Agreement either Collateral Agent shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering any action to be
taken, such matter may, in the absence of gross negligence or bad faith on the
part of such Collateral Agent, be deemed to be conclusively proved and
established by an officer's certificate or an opinion of counsel, which shall be
full warrant to such Collateral Agent for any action taken, suffered or omitted
by it under the provisions of this Common Agreement upon the faith thereof.
(f) In the event that either Collateral Agent is required to acquire
title to an asset for any reason, or take any managerial action of any kind in
regard thereto which in such Collateral Agent's sole discretion may cause such
Collateral Agent to be considered an "owner
80
or operator" under any environmental laws or otherwise cause such Collateral
Agent to incur, or be exposed to, any environmental liability or any liability
under any other federal, state or local law, such Collateral Agent reserves the
right, instead of taking such action, either to resign as Collateral Agent or to
arrange for the transfer of the title or control of the asset to one of the
Facility Administrative Agents or, if a Facility Administrative Agent so
directs, to a designee or a court appointed receiver. Neither Collateral Agent
shall be liable to any person or entity for any environmental liability or any
environmental claims or contribution actions under any federal, state or local
law, rule or regulation by reason of such Collateral Agent's actions and conduct
as authorized, empowered and directed hereunder or relating to any kind of
discharge or release or threatened discharge or release of any hazardous
materials into the environment.
(g) In the event of any conflict between any terms and provisions set
forth in this Agreement and those set forth in any other Financing Document, the
applicable Collateral Agent shall seek written instruction from the
Intercreditor Agent regarding how to proceed with respect to such conflict. In
the event there is any bona fide, good faith disagreement between the other
parties to this Common Agreement or any of the other Financing Documents
resulting in adverse claims being made in connection with Collateral held by
either Collateral Agent and the terms of this Common Agreement or any of the
other Financing Documents do not unambiguously mandate the action such
Collateral Agent is to take or not to take in connection therewith under the
circumstances then existing, or such Collateral Agent is in doubt as to what
action it is required to take or not to take hereunder or under the other
Financing Documents, it will be entitled to refrain from taking any action (and
will incur no liability for doing so) until directed otherwise in writing by the
Intercreditor Agent or by order of a court of competent jurisdiction.
(h) Notwithstanding anything to the contrary herein, any and all
communications (both text and attachments) by or from the Offshore Collateral
Agent that the Offshore Collateral Agent in its sole discretion deems to contain
confidential, proprietary, and/or sensitive information and sent by electronic
mail will be encrypted. The recipient of the email communication will be
required to complete a one-time registration process. Information and assistance
on registering and using the email encryption technology can be found at the
Offshore Collateral Agent's secure website
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇ or by calling (866)
535-2504 (in the U.S.) or (▇▇▇) ▇▇▇-▇▇▇▇ at any time.
(i) Whether or not therein expressly so provided, every provision of
this Common Agreement and any other Financing Document to which it is a party
relating to the conduct or affecting the liability of or affording protection to
either Collateral Agent shall be subject to the provisions of this Article VIII.
ARTICLE IX
THE INTERCREDITOR AGENT
Section 9.01. Appointment and Duties of Intercreditor Agent.
(a) Appointment and Duties of Intercreditor Agent. Each of the Secured
Parties (other than the Intercreditor Agent) hereby designates and appoints
WestLB AG, New York Branch to act as the initial Intercreditor Agent hereunder
and under the other Financing Documents to which it is a party, and each of the
Secured Parties hereby authorizes ▇▇▇▇▇▇ ▇▇,
▇▇
▇▇▇ ▇▇▇▇ Branch, as the Intercreditor Agent, to take such actions on its behalf
under the provisions of the applicable Financing Documents to which it is a
party and to exercise such powers and perform such duties as are expressly
delegated to the Intercreditor Agent by the terms thereof, together with such
other powers as are reasonably incidental thereto, including, without
limitation, the delegation of such authority by the Intercreditor Agent to the
Onshore Collateral Agent pursuant to Section 8.01. Each of the Secured Parties
(other than the Intercreditor Agent) hereby authorizes and directs the
Intercreditor Agent, on behalf of the Secured Parties, to appoint the Onshore
Collateral Agent and acknowledges the Intercreditor Agent's appointment thereof
pursuant to Section 8.01. Notwithstanding any provision to the contrary
elsewhere in the Financing Documents, the Intercreditor Agent shall not have any
duties or responsibilities, except those expressly set forth in the Financing
Documents to which it is a party, or any fiduciary relationship with any Secured
Party, and no implied covenants, functions or responsibilities shall be read
into this Common Agreement or the other Financing Documents or otherwise exist
against the Intercreditor Agent. The Intercreditor Agent shall not be liable for
any action taken or omitted to be taken by it hereunder or under the Financing
Documents, or in connection herewith or therewith, or in connection with the
Collateral, unless caused by its gross negligence or willful misconduct.
(b) Rights of Intercreditor Agent.
(i) The Intercreditor Agent may execute any of its duties
hereunder and under the Financing Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties and shall not be responsible for the acts
or omissions of any such agents, attorneys-in-fact and counsel selected by
it in good faith without gross negligence, bad faith or willful misconduct
on its part. An opinion of counsel may be based, insofar as it relates to
factual matters of which the Borrower has knowledge, upon the certificate
or opinion of or representation by an officer or officers of the Borrower
unless such counsel knows the certificate, opinion or representation upon
which such counsel's opinion may be based is erroneous, or in the exercise
of reasonable care should have known the same was erroneous.
(ii) Neither the Intercreditor Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (A)
liable for any action lawfully taken or omitted to be taken by it under or
in connection with any Financing Document (except for its gross negligence
or willful misconduct), or (B) responsible in any manner to any of the
Secured Parties for any recitals, statements, representations or warranties
made by the Borrower or any representative of either of them contained in
any Financing Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Intercreditor
Agent under or in connection with, any Financing Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of the
Financing Documents or for any failure of the Borrower to perform its
obligations thereunder. Except as expressly otherwise provided hereunder or
under any Financing Document, the Intercreditor Agent shall not be under
any obligation to any Secured Party to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, any Financing Document, or to inspect the properties, books
or records of the Borrower or to exercise any of the rights or powers
82
vested in it by this Common Agreement in any manner that would be contrary
to applicable Law.
(iii) The Intercreditor Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram,
electronic mail, telecopy, telex or teletype message, statement, order or
other document reasonably believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to the Borrower), independent accountants and other experts
selected by the Intercreditor Agent. The Intercreditor Agent shall be fully
justified in failing or refusing to take any action under any Financing
Document (A) if such action would, in the opinion of the Intercreditor
Agent, be contrary to law or the terms of any Financing Document or (B) if
such action is not specifically provided for in a Financing Document.
(iv) The Intercreditor Agent shall not be deemed to have actual,
constructive, direct or indirect knowledge or notice of the occurrence of
any Default or Event of Default unless and until the Intercreditor Agent
has received a written notice or a certificate from a Secured Party or the
Borrower in a manner and at the address set forth in Section 10.02 stating
that a Default or Event of Default has occurred, and such notice or
certificate references the Borrower and this Common Agreement. The
Intercreditor Agent shall have no obligation whatsoever either prior to or
after receiving such notice or certificate to inquire whether an Event of
Default has in fact occurred and shall be entitled to rely conclusively,
and shall be fully protected in so relying, on any notice or certificate so
furnished to it. No provision of this Common Agreement or any other
Financing Document shall require the Intercreditor Agent to expend or risk
its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or under any Financing Document or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. In the
event that the Intercreditor Agent receives such a notice of the occurrence
of any Default or Event of Default, the Intercreditor Agent shall promptly
but no later than three (3) Business Days thereafter give notice thereof to
the other Secured Parties. Notwithstanding the foregoing, each party hereto
hereby agrees that any delay in giving or any failure to give the notice
referenced in this Section 9.01(b)(iv) shall not affect the rights of any
Secured Party under this Common Agreement or any other Transaction Document
or the validity of any poll, approval or other action taken or approved at
any meeting.
(v) The Borrower will pay upon demand to the Intercreditor Agent
the amount of any and all out-of-pocket expenses, including the fees and
expenses of its counsel (and any local counsel) and of any experts and
agents, which the Intercreditor Agent may incur in connection with (A) the
administration of this Common Agreement and the other Financing Documents,
(B) the exercise or enforcement (whether through negotiations, legal
proceedings or otherwise) of any of the rights of the Intercreditor Agent
or the Secured Parties hereunder or under the other Financing Documents or
(C) the failure by the Borrower to perform or observe any of the provisions
hereof or of any of the other Financing Documents.
83
(vi) Whenever in the administration of the provisions of this
Common Agreement the Intercreditor Agent shall deem it necessary or
desirable that a matter be proved or established prior to taking or
suffering any action to be taken, such matter may, in the absence of gross
negligence or bad faith on the part of the Intercreditor Agent, be deemed
to be conclusively proved and established by an officer's certificate or an
opinion of counsel, which shall be full warrant to the Intercreditor Agent
for any action taken, suffered or omitted by it under the provisions of
this Common Agreement upon the faith thereof.
(vii) Whether or not therein expressly so provided, every
provision of this Common Agreement and any other Financing Document to
which it is a party relating to the conduct or affecting the liability of
or affording protection to the Intercreditor Agent shall be subject to the
provisions of this Article IX.
(c) Lack of Reliance on the Intercreditor Agent. Each of the Secured
Parties expressly acknowledges that neither the Intercreditor Agent nor any of
its officers, directors, employees, agents or attorneys-in-fact has made any
representations or warranties to it and that no act by the Intercreditor Agent
hereinafter taken, including, without limitation, any review of the Project or
of the affairs of the Borrower, shall be deemed to constitute any representation
or warranty by the Intercreditor Agent to any Secured Party. Each Secured Party
represents that it will, independently and without reliance upon the
Intercreditor Agent or any other Secured Party, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Common Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Project and the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Secured Parties by the Intercreditor Agent hereunder and under the other
Financing Documents to which it is a party, including, without limitation, its
obligations set forth in the immediately succeeding sentence, the Intercreditor
Agent shall not have any duty or responsibility to provide any Secured Party
with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Project and
the Borrower which may come into the possession of the Intercreditor Agent or
any of its officers, directors, employees, agents or attorneys-in-fact. The
Intercreditor Agent shall have the obligation to deliver, promptly upon its
receipt thereof, to all Lender Representatives copies of any notice, report,
certificate, letter or other document furnished to it by any Borrower
counterparty (other than a Secured Party) to any Project Document, the Insurance
Consultant or the Independent Engineer in connection with the transactions
contemplated by the Financing Documents.
(d) Resignation or Removal of the Intercreditor Agent. The
Intercreditor Agent may resign as Intercreditor Agent upon sixty (60) days'
notice to the Secured Parties and may be removed at any time with or without
cause by the decision of each of the Working Capital Facility Required Lenders
and the Construction Facility Required Lenders, with any such resignation or
removal to become effective only upon the appointment of a successor
Intercreditor Agent under this Section 9.01(d). If the Intercreditor Agent shall
resign or be removed as Intercreditor Agent, then the Working Capital Facility
Required Lenders and the Construction Facility Required Lenders shall (and if no
such successor shall have been appointed
84
within sixty (60) days of the Intercreditor Agent's resignation or removal, the
Intercreditor Agent may) appoint a successor agent for the Secured Parties which
successor shall, unless a Default or an Event of Default has occurred and is
continuing, be acceptable to the Borrower, acting reasonably, whereupon such
successor agent shall succeed to the rights, powers and duties of the
"Intercreditor Agent", and the term "Intercreditor Agent" shall mean such
successor agent effective upon its appointment, and the former Intercreditor
Agent's rights, powers and duties as Intercreditor Agent shall be terminated,
without any other or further act or deed on the part of such former
Intercreditor Agent (except that the Intercreditor Agent that is resigning or
being removed shall deliver all written information then in its possession which
it deems to be material to the successor Intercreditor Agent) or any of the
other Secured Parties. Notwithstanding anything herein to the contrary, in the
event that (i) no Affiliate of the Intercreditor Agent is a Lender hereunder and
(ii) the Intercreditor Agent has given sixty (60) days' notice in accordance
with this Section 9.01(d), no approval of the Borrower or any Secured Party
shall be required in order for the Intercreditor Agent to exercise its right to
resign hereunder. After any Intercreditor Agent's resignation or removal
hereunder as Intercreditor Agent, the provisions of this Common Agreement shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Intercreditor Agent.
(e) Intercreditor Agent Reliance; Etc. Neither the Intercreditor Agent
nor any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
any Financing Document, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Intercreditor Agent: (i) may employ, retain and consult with legal counsel
(including counsel for the Borrower) and other experts and advisers selected by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, experts or advisers;
(ii) makes no warranty or representation to any Secured Party and shall not be
responsible to any Secured Party for any statements, warranties or
representations made in or in connection with any Financing Document; (iii)
makes no representations as to the nature of title or value of any of the
Accounts nor as to the title thereto, nor as to the rights and interests granted
or the security afforded by this Common Agreement, the Security Documents or any
other Transaction Documents nor as to the validity, execution (except by
itself), enforceability, legality or sufficiency of this Common Agreement, the
Security Documents or any other Transaction Documents; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Financing Document on the part of the
Borrower or any other Person party thereto or to inspect the Project or any
other property (including the books and records) of the Borrower; (v) shall not
be responsible to any Secured Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Financing Document or
any other instrument or document furnished pursuant thereto; (vi) shall not be
liable for any error of judgment made in good faith by an officer or officers of
the Intercreditor Agent, unless it shall be conclusively determined by a court
of competent jurisdiction that such error resulted from the Intercreditor
Agent's gross negligence; (vii) shall not be bound to make any investigation
into the facts stated in any resolution, certificate, statement, instrument,
opinion, report, consent, order, approval, bond or other document or have any
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder; (viii)
shall not be responsible for the accuracy or content of any certificate,
statement, direction or opinion furnished to it in
85
connection with this Common Agreement; (ix) shall not be responsible for any
mistake, omission or error of judgment with respect to the value or valuation,
genuineness, enforceability, existence, perfection or priority of any of the
Collateral, the determination of the fair market value of any Collateral, or any
other matters determined hereunder or under the other Financing Documents,
unless, in each case, it shall be conclusively determined by a court of
competent jurisdiction that such mistake, omission or error resulted from the
Intercreditor Agent's gross negligence or willful misconduct; and (x) shall
incur no liability under or in respect of any Financing Document and may
conclusively rely and act upon any notice, consent, certificate or other
instrument or writing (which may be personally delivered, sent by overnight
courier or by facsimile transmission) believed by it to be genuine and signed or
sent by the proper party or parties. The Intercreditor Agent shall be fully
justified in failing or refusing to take any action under any Financing Document
(x) if such action would, in the opinion of the Intercreditor Agent, be contrary
to law or the terms of such Financing Document, (y) if such action is not
specifically provided for in such Financing Document or, if the Intercreditor
Agent shall determine in good faith that the provisions of such Financing
Document relating to the functions or responsibilities or discretionary powers
of the Intercreditor Agent are or may be ambiguous or inconsistent, it shall not
have received any such advice or concurrence of the Working Capital Facility
Majority Lenders and the Construction Facility Majority Lenders or, following
execution of the Intercreditor Agreement, the Enforcing Required Lenders, as it
deems appropriate, or (z) if, in connection with the taking of any such action
that would constitute an exercise of remedies under such Financing Document, it
shall not first be indemnified to its satisfaction by the Borrower or the
Secured Parties against any and all liability and expense that may be incurred
by it by reason of taking or continuing to take any such action.
(f) Indemnification. The Lenders agree to indemnify the Intercreditor
Agent (to the extent not reimbursed by the Borrower), ratably, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the
Intercreditor Agent in any way relating to or arising out of this Common
Agreement or any Financing Document or any action taken or omitted by the
Intercreditor Agent under any Financing Document; provided, that none of the
Lenders shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Intercreditor Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Intercreditor Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including counsel fees) incurred by the
Intercreditor Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, any Financing Document to the extent that the
Intercreditor Agent is entitled to reimbursement for such expenses pursuant to
Section 10.04 but is not reimbursed for such expenses by the Borrower. The
provisions of this Section 9.01 shall survive the resignation or removal of the
Intercreditor Agent, the payment and performance of the Obligations and the
satisfaction and discharge or other termination of this Common Agreement.
Anything in this Common Agreement to the contrary notwithstanding, in no event
shall the Intercreditor Agent be liable under or in connection with this Common
Agreement or any Financing Document for indirect, special, incidental, punitive
or consequential losses or damages of any kind whatsoever, including but not
limited to lost profits, whether or not foreseeable, even if the Intercreditor
86
Agent has been advised of the possibility thereof and regardless of the form of
action in which such damages are sought.
(g) Authority. Any person which shall be designated as a duly
authorized representative to act in connection with any matters pertaining to
this Common Agreement, the Intercreditor Agreement or any other Financing
Document shall present to the Intercreditor Agent such documents, including
opinions of counsel, as the Intercreditor Agent may reasonable request, in order
to demonstrate to the Intercreditor Agent the authority of such person to so
act.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments, Etc.
(a) Neither the Common Agreement nor any other Financing Document, nor
any terms hereof or thereof, may be amended, supplemented, modified, waived or
cancelled and no consent or approval required hereunder shall be effected except
in accordance with the provisions of this Section 10.01.
(b) Subject to paragraph (c) below:
(i) the Common Agreement and each Security Document may only be
amended or cancelled with the agreement of the Working Capital Facility
Majority Lenders, the Construction Facility Majority Lenders and the
Borrower;
(ii) the provisions of the Common Agreement and any Security
Document may only be waived with the agreement of, and for such period of
time as determined by, the Working Capital Facility Majority Lenders, the
Construction Facility Majority Lenders and the Borrower and any other
Person (other than a Secured Party) party thereto; provided, that, the
provisions set forth in Section 4.05 of this Common Agreement may be waived
in respect of (A) any Working Capital Facility Borrowing, by the Working
Capital Facility Majority Lenders and (B) any Construction Facility
Borrowing, by the Construction Facility Majority Lenders;
(iii) the Working Capital Facility Credit Agreement may only be
amended and any of its provisions may only be waived with the agreement of
that percentage of the Working Capital Facility Lenders specified in the
Working Capital Facility Credit Agreement and the Borrower;
(iv) the Construction Facility Credit Agreement may only be
amended and any of its provisions may only be waived with the agreement of
that percentage of the Construction Facility Lenders specified in the
Construction Facility Credit Agreement and the Borrower; and
(v) no amendment to a Financing Document that adversely affects
the rights, duties or obligations of a Lender Representative shall be made
without the consent of such Lender Representative.
87
(c) Notwithstanding the provisions of paragraph (b) above,
(i) no amendment, supplement, modification, determination,
waiver, cancellation, consent or approval which is or effects a Fundamental
Decision shall be effective without the consent of each Lender;
(ii) any amendment, supplement, modification, determination,
waiver, cancellation, consent or approval which is or effects an
Administrative Decision may be effected by the Intercreditor Agent;
(iii) any amendment, supplement, modification, determination,
waiver, cancellation, consent or approval which is or effects (A) a
Material Decision may not be effected without the consent of each of the
Working Capital Facility Majority Lenders and the Construction Facility
Majority Lenders or (B) an EHS Decision may not be effected without the
consent of each of the Working Capital Facility Majority Lenders and the
Construction Facility Majority Lenders, including, if one or more Lenders
individually holding Commitments and Loans in an aggregate amount not less
than $15,000,000 at the time shall then be a signatory to the Equator
Principles, each such signatory Lender individually holding Commitments and
Loans in an aggregate amount not less than $15,000,000 at the time;
provided, however, that if such Material Decision, or EHS Decision shall
relate to an Enforcement Action (other than with respect to a Bankruptcy
Event of Default), such Material Decision or EHS Decision may not be
affected without the consent of, following execution of the Intercreditor
Agreement, the Enforcing Required Lenders under the Intercreditor
Agreement; and
(iv) any amendment, supplement, modification, determination,
cancellation, consent or approval that would have the effect of causing the
Scheduled Provisional Acceptance Date to be later than the date set forth
therefor in the Construction Schedule (as such date may be extended not
more than two hundred seventy (270) days for Permissible Provisional
Acceptance Delays) or causing the Scheduled Project Completion Date to be
later than the date set forth therefor in the Construction Schedule (as
such date may be extended not more than two hundred seventy (270) days for
Permissible Project Completion Delays) shall only be affected if the
Working Capital Facility Required Lenders and the Construction Facility
Required Lenders shall have each given their consent.
(d) Any such amendment, supplement, modification, determination,
waiver, cancellation, consent or approval provided in accordance with the
foregoing shall apply equally to each of the Secured Parties and shall be
binding upon the Borrower, the Secured Parties and all other Persons party to
the Financing Documents. In the case of any waiver, the Borrower, the Secured
Parties and the other Persons party to the Financing Documents shall be restored
to their former positions and rights hereunder and under the other Financing
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; provided that no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon. Any amendment, supplement, modification, consent or approval of any
Financing Document which has the effect of waiving any continuing Default or
Event if
88
Default shall be subject to the same Lender consent requirements as the waiver
of such Default or Event of Default, as applicable.
(e) No amendment to any of the Financing Documents shall be effective
unless the requisite consent of such number or percentage of the Secured Parties
as is provided herein shall have been obtained. Upon any amendment to any
Financing Document, including the Intercreditor Agreement, becoming effective,
the Intercreditor Agent, if party thereto, or the relevant Facility
Administrative Agent shall provide copies thereof to each of the Lender
Representatives and the Borrower.
(f) The Borrower will not directly or indirectly pay or cause to be
paid any remuneration in any manner whatsoever to any Secured Party within a
given Credit Facility as consideration for or as an inducement to the entering
into by any Secured Party of any waiver or amendment of any of the terms and
provisions of the Transaction Documents unless such remuneration is concurrently
paid ratably to each Lender in such Credit Facility even if any such Secured
Party is not required to or did not consent to such waiver or amendment.
(g) The Intercreditor Agent shall promptly conduct polls of the
affected Lenders in respect of the foregoing decisions and shall advise the
Lenders and the Borrower on a timely basis as to the results of each such
determination. Notwithstanding the foregoing and without limiting the generality
of any other provision set forth herein, the Borrower and each other party
hereto hereby agrees that any delay in conducting any such poll or advising any
Lender or the Borrower of the result of any such poll or determination shall not
affect the rights of any Secured Party under this Common Agreement or any other
Transaction Document or the validity of any poll, approval or other action taken
or approved.
Section 10.02. Notices, Etc. All notices and other communications provided
for hereunder and under the other Financing Documents required or permitted to
be given to a party hereto shall be in writing and shall be personally
delivered, sent by an overnight courier or by facsimile transmission, as
follows: (i) if to the Borrower, at the address specified under its name on the
signature pages hereto; (ii) if to any Lender, at the address specified under
its name on the signature pages hereto or specified in the Assignment or other
transfer or assignment documentation pursuant to which it became a Lender; and
(iii) if to any other Lender or any Lender Representative, at the address
specified under its name on the signature pages hereto; or, as to each party, at
such other address as shall be designated by such party in a written notice to
the other parties. Notices that are delivered by hand or overnight courier shall
be deemed received upon delivery. Notices that are delivered by facsimile shall
be deemed delivered upon receipt. Notwithstanding the preceding provisions of
this Section 10.02, notices and communications to the Facility Administrative
Agents pursuant to this Common Agreement shall not be effective until actually
received by the relevant Facility Administrative Agent.
Section 10.03. No Waiver of Remedies. No failure on the part of any Lender
or Lender Representative to exercise, and no delay in exercising, any right
hereunder or under any other Financing Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
89
Section 10.04. Costs, Expenses and Indemnification.
(a) All statements, reports, certificates, opinions and other
documents or information required to be furnished by the Borrower to any Secured
Party under this Common Agreement or any other Financing Document shall be
supplied without cost to such Secured Party. The Borrower shall pay, within five
(5) Business Days after receipt of an invoice by the Borrower, (i) all
reasonable out-of-pocket costs and expenses of each Lender Representative
(including the reasonable fees and disbursements of its counsel), incurred in
connection with (1) the negotiation, preparation, execution and delivery of the
Transaction Documents or any waiver or amendment of, or supplement or
modification to, the Transaction Documents, (2) the review of any of the other
agreements, instruments or documents referred to in this Common Agreement or any
other Financing Document or relating to the transactions contemplated hereby or
thereby, and (3) the filing or recording of any Financing Document and of any
other document or instrument required to be filed in connection therewith; (ii)
the reasonable fees and disbursements of the Independent Engineer, the
Environmental Consultant and the Insurance Consultant for their services
rendered to the Secured Parties from time to time; (iii) all reasonable
out-of-pocket costs and expenses of the Lender Representatives incurred in
connection with the ongoing administration of the transactions contemplated
hereby; and (iv) all costs and expenses (including the fees and disbursements of
counsel, including in-house counsel) of any Lender Representative incident to
(x) the investigation of any Default or Event of Default, (y) the enforcement,
collection, protection or preservation of any right or claim under the
Transaction Documents or the custody or preservation of, the sale of, collection
from, or other realization upon, any of the Collateral (whether through
negotiations, legal proceedings or otherwise), or (z) any workout or
restructuring of the transactions contemplated by the Financing Documents. In
the event that any Secured Party incurs any costs or expenses or renders any
services in connection with a Bankruptcy Event of Default, such costs and
expenses (including the reasonable charges and expenses of counsel) and the
compensation for such services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
(b) The Borrower hereby agrees to indemnify and hold each Secured
Party and their respective officers, directors, employees, agents, professional
advisors and affiliates (each an "Indemnified Person") harmless from and against
any and all claims, damages, losses, liabilities, costs or expenses (including
reasonable attorney's fees and expenses) that any of them may incur or that may
be claimed against any of them by any Person by reason of or in connection with
any Loan or other Obligation, any Transaction Document or any investigation,
litigation or other proceeding relating to the Project (each, a "Project
Matter"), initiated by a Person other than the parties hereto, other than as a
result of the Indemnified Person's gross negligence or willful misconduct.
(c) To the fullest extent permitted by applicable law, the Borrower
hereby agrees to defend, indemnify, and hold harmless each Indemnified Person
from and against any and all loss, cost, expense, claim, liability, or asserted
liability incurred in connection with any and all claims or proceedings for
bodily injury, death, property damage, abatement or remediation, or any other
injury or damage resulting from or relating, directly or indirectly, to (i) any
Contaminant currently located or that came to be located upon the Property
(whether or not such Release was caused by the Borrower, a tenant, subtenant, or
a prior owner or tenant of the
90
Property and whether or not the alleged liability is attributable to the
handling, storage, generation, transportation, or disposal of such Contaminants
or the mere presence of such Contaminants on the Property), (ii) any Contaminant
that has migrated, leached, or traveled on to or off of the Property, from any
source or (iii) the breach or alleged breach of any EHS Requirements by the
Borrower, or any EHS Damages (each, an "Environmental Matter").
(d) The agreements of the Borrower in subsections (b) and (c) above
shall be in addition to any liabilities that the Borrower may otherwise have and
shall apply whether or not a Secured Party or any other Indemnified Party is a
formal party to any lawsuit, claim or other proceeding. Solely for purposes of
enforcing the agreements set forth in subsections (b) and (c) above, the
Borrower hereby consents, to the extent permitted by law, to personal
jurisdiction, service and venue in any court in which any claim or proceeding
that relates to a Project Matter or an Environmental Matter is brought against
an Indemnified Party.
(e) The Borrower's obligations under this Section 10.04 shall survive
the payment or satisfaction in full of the Obligations. If and to the extent
that the obligations of the Borrower under this Section 10.04 are unenforceable
for any reason, the Borrower agrees to make the maximum contribution to the
payment and satisfaction thereof that is permissible under applicable law.
(f) To the maximum extent permitted by law, the Borrower agrees not to
assert, and hereby waives, any claim against the Indemnified Parties, on any
theory of liability, for special, indirect, consequential, or punitive damages
of any kind whatsoever and whether or not foreseeable, even if the Indemnified
Parties have been advised of the possibility thereof and regardless of the form
of action in which such damages are sought, arising out of or otherwise relating
to the Transaction Documents, any of the transactions contemplated herein or
therein or the actual or proposed use of the proceeds of the Loans.
Section 10.05. Right of Set-off.
(a) In addition to any rights and remedies of the Secured Parties
provided by law or otherwise, upon (i) the occurrence and during the continuance
of any Event of Default and (ii) the delivery by the Intercreditor Agent of the
notices specified in Section 7.02 to authorize the Facility Administrative
Agents to declare all interest, all Obligations and all other amounts payable
under this Common Agreement and the other Financing Documents due and payable
pursuant to the provisions of Section 7.02 (provided, that in the case of any
Event of Default specified in Section 7.01(g), no such consent shall be
necessary), each Secured Party is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Secured Party to or for
the credit or the account of the Borrower against any and all of the obligations
of the Borrower now or hereafter existing under this Common Agreement or any
other Financing Document held by such Secured Party, irrespective of whether or
not such Secured Party shall have made any demand under this Common Agreement or
any other Financing Document and although such obligations may be unmatured;
provided, however, that any amounts obtained by any Secured Party through its
right of set-off shall be shared by the Secured Parties in accordance with the
terms of the Intercreditor Agreement. Each Secured Party agrees promptly to
notify the Borrower after any such set-off
91
and application made by such Secured Party; provided, that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Secured Party under this Section 10.05 are in addition to other
rights and remedies (including other rights of set-off) that such Secured Party
may have.
(b) The Borrower agrees that, to the extent permitted by applicable
law, it shall have no right of set-off, deduction or counterclaim in respect of
its obligations hereunder, and that the obligations of the Secured Parties
hereunder are several and not joint.
Section 10.06. Binding Effect. This Common Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto and shall inure to the benefit of the Secured
Parties; provided, however, that, the Borrower shall not have the right to
assign its rights or obligations hereunder or any interest herein without the
prior written consent of all of the Lenders.
Section 10.07. Use of Name. The Borrower shall not use the name of any
Secured Party in any advertisement without the express written consent of such
party.
Section 10.08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS COMMON AGREEMENT OR ANY OTHER
FINANCING DOCUMENT, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR
THEREUNDER.
Section 10.09. GOVERNING LAW, SUBMISSION TO JURISDICTION, ETC.
(a) THIS COMMON AGREEMENT AND EACH OF THE OTHER FINANCING DOCUMENTS
(UNLESS SUCH FINANCING DOCUMENT EXPRESSLY STATES OTHERWISE THEREIN) SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(b) Each of the parties hereto hereby (i) expressly and irrevocably
submits and consents to the jurisdiction of any State or Federal court located
in the Borough of Manhattan, and any appellate court having jurisdiction over
appeals from any of such courts, in any action to resolve any controversy or
claim arising out of this Common Agreement or any other Financing Document, (ii)
agrees that all claims in such action may be decided in any such court, (iii)
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum, (iv) irrevocably and unconditionally waives, to the
fullest extent it may effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Common Agreement or any other Financing Document in
any such court, (v) to the extent the Borrower has or hereafter may acquire any
immunity (sovereignty or otherwise) from any legal action, suit or proceeding,
from jurisdiction of any court or from set-off or any legal process (whether
service or notice, attachment in aid or otherwise) with respect to itself or any
of its property, the Borrower irrevocably waives and agrees not to plead or
claim such immunity in respect of its Obligations under this Common Agreement
and the other Financing Documents, and (vi) consents to the service of process
by registered or certified mail (or any substantially similar form of mail),
postage prepaid and return
92
receipt requested, or by personal service within or without the State of New
York, at the address for notices referred to in Section 10.02. A final judgment
in any such action shall be conclusive and may be enforced in other
jurisdictions. Furthermore, each party hereby submits to the competent courts of
its corporate domicile in any action or proceeding against it in connection with
this Common Agreement or any other Financing Document. Nothing herein shall
affect the right of any party to bring legal action or proceedings in any other
competent jurisdiction.
(c) The Borrower hereby irrevocably appoints CT Corporation System
(the "Process Agent"), with an office on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on its behalf and on behalf of
its properties, service of process that may be served in any such action.
Service upon the Process Agent shall be deemed to be personal service on the
Borrower and shall be legal and binding upon the Borrower for all purposes
notwithstanding any failure to mail copies of such legal process to the
Borrower, or any failure on the part of the Borrower to receive the same. The
Borrower agrees that it shall at all times continuously maintain an agent to
receive service of process in the State of New York on behalf of itself and its
properties, and, in the event that for any reason the Process Agent shall not
serve as agent for the Borrower to receive service of process in the State of
New York on its behalf, the Borrower shall promptly appoint a successor
satisfactory to the Facility Administrative Agents so to serve, advise the
Facility Administrative Agents thereof, and deliver to the Facility
Administrative Agents evidence in writing of the successor agent's acceptance of
such appointment. Nothing herein shall affect the right of any party to effect
service of process in any other manner permitted by applicable Law.
(d) To the extent the Borrower may, in any action or proceeding
arising out of or relating to any of the Financing Documents brought in Mexico
or elsewhere, be entitled under applicable Law to require or claim that any
Secured Party post security for costs or take similar action, the Borrower
hereby irrevocably waives and agrees not to claim the benefit of such
entitlement.
Section 10.10. Relation of the Parties; No Beneficiary. No term, provision
or requirement, whether express or implied, of any Financing Document, or
actions taken or to be taken by any party thereunder, shall be construed to
create a partnership, association, or joint venture between such parties or any
of them. No term or provision of any Financing Document shall be construed to
confer a benefit upon, or grant a right or privilege to, any Person other than
the parties thereto.
Section 10.11. Execution in Counterparts. This Common Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
Section 10.12. Severability. Any provision of this Common Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
93
Section 10.13. Waiver of Immunity. To the extent that the Borrower may be
entitled, in any jurisdiction in which judicial proceedings may at any time be
commenced with respect to this Common Agreement or any other Financing Document,
to claim for itself or its revenues, assets or properties any immunity from
suit, the jurisdiction of any court, attachment prior to judgment, attachment in
aid of execution of judgment, set-off, execution of a judgment or any other
legal process, and to the extent that in any such jurisdiction there may be
attributed to the Borrower such an immunity (whether or not claimed), the
Borrower hereby irrevocably agrees not to claim and hereby irrevocably waives
such immunity to the fullest extent permitted by the Law of the applicable
jurisdiction.
Section 10.14. English Language. This Common Agreement and the other
Financing Documents shall be in the English language, except as required by the
laws of Mexico (in which event English translations, certified by the Borrower
to be true, correct and complete, thereof shall be provided by the Borrower to
the Intercreditor Agent). All documents, certificates, reports or notices to be
delivered or communications to be given or made by any party hereto pursuant to
the terms of this Common Agreement or any other Financing Document shall be in
the English language or, if originally written in another language, shall be
accompanied by an accurate English translation upon which the parties hereto
shall have the right to rely for all purposes of this Common Agreement and the
other Financing Documents; provided, however, that (i) each Principal
Subcontract, (ii) all financial statements (other than the audited annual
financial statements of each of ICA and CFE) delivered as a condition to the
initial Working Capital Facility Borrowing, (iii) the organizational documents,
all copies of resolutions or other appropriate actions of the Borrower, each
Shareholder and each Sponsor and all powers of attorney delivered as a condition
to the initial Working Capital Facility Borrowing and (iv) all insurance
policies, binders and endorsements delivered as a condition to the initial
Working Capital Facility Borrowing may be delivered in Spanish or Russian, as
applicable, provided that the Borrower shall, no later than the date that is
sixty (60) days after the Signing Date, deliver to the Intercreditor Agent
English translations thereof, certified by the Borrower as being a true, correct
and complete. Notwithstanding the foregoing, (i) the Annexes to the Public Works
Contract (other than annex 14), the Bid and the RFP and (ii) copies of any
notices, documents or reports delivered or received by the Borrower pursuant to
the Public Works Contract may be provided in Spanish; provided, that the
Borrower shall deliver to the Intercreditor Agent an accurate English
translation thereof within ten (10) days of its request therefor.
Section 10.15. Judgment Currency. This is an international transaction in
which the specification of U.S. Dollars and payment in New York City is of the
essence, and the obligations of the Borrower under this Common Agreement and
under the other Financing Documents to make payment to (or for the account of)
each Secured Party in U.S. Dollars shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
other currency or in another place except to the extent that such tender or
recovery results in the effective receipt by such Secured Party in New York City
of the full amount of U.S. Dollars payable to such Secured Party under the
Financing Documents to which such Secured Party is party. If for the purpose of
obtaining or enforcing judgment in any court it is necessary to convert a sum
due hereunder in U.S. Dollars into another currency (for the purposes of this
Section 10.15, hereinafter the "judgment currency"), the rate of exchange that
shall be applied shall be that at which in accordance with normal banking
procedures such Secured Party could purchase such U.S. Dollars in New York with
the judgment currency on the
94
Business Day next preceding the day on which such judgment is rendered. The
obligation of the Borrower in respect of any such sum due from it to such
Secured Party hereunder (in this Section 10.15 called an "Entitled Person")
shall, notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that, on the Business Day following
the receipt by such Entitled Person of any sum adjudged to be due hereunder in
the judgment currency, such Entitled Person may in accordance with normal
banking procedures purchase and transfer U.S. Dollars to New York City with the
amount of the judgment currency so adjudged to be due; and the Borrower hereby,
as a separate obligation and notwithstanding any such judgment, agrees to
indemnify such Entitled Person on demand, in U.S. Dollars, for the amount (if
any) by which the sum originally due to such Entitled Person in U.S. Dollars
hereunder exceeds the amount of the Dollars so purchased and transferred.
Section 10.16. Execution of Other Documents; Conflicts. Simultaneously with
the execution and delivery of this Common Agreement, each Facility
Administrative Agent shall enter into the Intercreditor Agreement on behalf of
itself and its respective Lenders. Each of the Lenders acknowledges solely for
the benefit of the other Lenders that it shall be bound by the terms of the
Intercreditor Agreement and that all rights, powers and remedies available to
each of the Lenders with respect to the Collateral, or otherwise pursuant to the
Security Documents, shall be subject to the Intercreditor Agreement. In the
event of any conflict or inconsistency between the terms and provisions of this
Common Agreement and the terms and provisions of the Intercreditor Agreement,
the terms and provisions of the Intercreditor Agreement shall, solely as among
the Lenders, and not with respect to the Borrower, govern and control.
Section 10.17. Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Common Agreement and the other Financing Documents;
(b) neither any Lender Representative nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Common Agreement or any of the other Financing Documents, and the
relationship between the Lender Representatives and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Financing
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
95
Section 10.18. Disclosures. Without in any manner limiting the rights of
any Secured Party hereunder, the Borrower hereby acknowledges the right of each
Secured Party to disclose any and all information relating to this Common
Agreement and the transactions contemplated hereunder to any of its Affiliates
and the officers, employees, directors and agents of such Affiliates in
connection with such Secured Party's exercise of rights and remedies or
performance of obligations pursuant to this Common Agreement or the other
Financing Documents.
Section 10.19. USA Patriot Act Notice. The Secured Parties hereby notify
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is, and
the Secured Parties may be, required to obtain, verify and record information
that identifies the Borrower and one or more of the Project Parties, which
information includes the name and address of the Borrower and other information
that will allow the Secured Parties to identify the Borrower and one or more of
such Persons in accordance with the Act.
96
IN WITNESS WHEREOF, the parties hereto have caused this Common
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE BORROWER:
CONSTRUCTORA DE PROYECTOS
HIDROELECTRICOS, S.A. DE C.V.,
as the Borrower
By: /s/ ▇▇▇▇▇▇▇ DE ▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ DE ▇▇ ▇▇▇▇▇▇
Title: LEGAL REPRESENTATIVE
Address for Notices:
Constructor de Proyectos
Hidroele'ctricos, S.A. de C.V.
c/o Empresas ICA, S.A.B. de ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, D.F., Mexico
Attention: Ing. ▇▇▇▇▇▇▇ de ▇▇ ▇▇▇▇▇▇
Telephone: (5255) 5272-9991 ext. 3670
Telecopier: (5255) 5227-5046
[Signature Page to Common Agreement]
THE INTERCREDITOR AGENT:
WESTLB AG, NEW YORK BRANCH,
as Intercreditor Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇ Deutsch
------------------------------------
Name: ▇▇▇▇▇ Deutsch
Title: Executive Director
Address for Notices:
WestLB AG, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇(▇▇▇)▇▇▇-▇▇▇▇
Telecopier: ▇▇(▇▇▇)▇▇▇-▇▇▇▇
[Signature Page to Common Agreement]
THE WORKING CAPITAL FACILITY LENDERS:
WESTLB AG, NEW YORK BRANCH, as a Working
Capital Facility Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇ Deutsch
------------------------------------
Name: ▇▇▇▇▇ Deutsch
Title: Executive Director
Address for Notices:
WestLB AG, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Jarcd ▇▇▇▇▇▇▇
Telephone: ▇▇(▇▇▇)▇▇▇-▇▇▇▇
Telecopier: ▇▇(▇▇▇)▇▇▇-▇▇▇▇
[Signature Page to Common Agreement]
THE CONSTRUCTION FACILITY LENDERS
BANCO BILBAO VIZCAYA ARGENTARIA S.A,
GRAND CAYMAN BRANCH, as a Construction
Facility Lender.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
International Corporate Banking
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
International Corporate Banking
Address for Notices:
Banco Bilbao Vizcaya Argentaria S.A
1345 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(Signature Page to Common Agreement)
CITIBANK N.A. NASSAU BAHAMAS BRANCH,
as a Construction Facility Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
Citibank N.A.
Nassau, Bahamas Branch
By:
---------------------------------
Name:
Title:
Address for Notices:
Citibank N.A, Nassau Bahamas Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇.▇. ▇▇▇ ▇▇▇▇▇
Nassau Bahamas
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
[Signature Page to Common Agreement]
HSBC MEXICO S.A., INSTITUCION DE BANCA
MULTIPLE, GRUPO FINANCIERO HSBC, CAYMAN
BRANCH, as a Construction Facility
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ G.
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ G.
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ M.
------------------------------------
Nmae: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ M.
Title: Executive Director
Address for Notices:
HSBC Mexico, S.A.
Reforma #347, Del. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇ (▇▇) ▇▇▇▇-▇▇▇▇
Telecopier: ▇▇▇ (▇▇) ▇▇▇▇-▇▇▇▇ / +52
(▇▇) ▇▇▇▇-▇▇▇▇
[Signature Page to Common Agreement]
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as a Construction
Facility Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Address for Notices:
Norddeutsche Landesbank Girozentrale,
New York Branch
1114 Avenue of the ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ /+1 (212)
812-6809
Telecopier: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇/+1 (212)
812-6860
[Signature Page to Common Agreement]
BANCO SANTANDER S.A., NEW YORK BRANCH,
as a Construction Facility Lender
By: /s/ ▇▇▇▇▇ ▇. ENGLISH, IV
------------------------------------
Name: ▇▇▇▇▇ ▇. ENGLISH, IV
Title: Managing Director
Global Corporate-Banking
By: /s/ ▇▇▇▇▇▇ ▇. DE ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. DE ▇▇▇▇▇
Title: EXECUTIVE DIRECTOR
GRUPO SANTANDER
Address for Notices:
Banco Santander S.A., New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Common Agreement]
WESTLB AG, NEW YORK BRANCH, as a
Construction Facility Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇ Deutsch
------------------------------------
Name: ▇▇▇▇▇ Deutsch
Title: Executive Director
Address for Notices:
WestLB AG, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: ▇▇(▇▇▇)▇▇▇-▇▇▇▇
[Signature Page to Common Agreement]
THE WORING CAPITAL FACILITY
ADMINISTRATIVE AGENT:
WESTLB AG, NEW YORK BRANCH, as Working
Capital Facility Administrative Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive-Director
By: /s/ ▇▇▇▇▇ Deutsch
------------------------------------
Name: ▇▇▇▇▇ Deutsch
Title: Executive Director
Address for Notices:
WestLB AG, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: ▇▇(▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Common Agreement]
THE CONSTRUCTION FACILITY ADMINISTRATIVE
AGENT:
WESTLB AG, NEW YORK BRANCH, as
Construction Facility Administrative
Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇ Deutsch
------------------------------------
Name: ▇▇▇▇▇ Deutsch
Title: Executive Director
Address for Notices:
WestLB AG, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: ▇▇(▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Common Agreement]
THE OFFSHORE COLLATERAL AGENT:
CITIBANK, N.A.,
as Offshore Collateral Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By:
------------------------------------
Name:
Title:
Addresp for Notices:
Citibank,N.A.
Agency and Trust Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Tetephooe: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Common Agreement]
THE ONSHORE COLLATERAL AGENT:
BANCO NACIONAL DE MEXICO, S.A.,
INTEGRANTE DEL GRUPO FINANCIERO BANAMEX
as Onshore Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney in fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
Address for Notices:
Banco Nacional de Mexico, S.A.,
Integrante del Grupo Financiero Banamex
Bosque de Duraznos 75 P.H.
Col. Bosques de las ▇▇▇▇▇
▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, D.F.
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇ (▇▇) ▇▇▇▇▇▇▇▇ / 18
Telecopier: ▇▇▇ (▇▇) ▇▇▇▇▇▇▇▇ /30 /50
[Signature Page to Common Agreement]
SCHEDULE 1.01A
ADMINISTRATIVE DECISIONS
The following are the Administrative Decisions in respect of which the
Intercreditor Agent has discretion:
Common Agreement
1. Section 6.01(d) (Maintenance of Insurance): in cooperating with the
Insurance Consultant and the Facility Administrative Agents, opining
as to availability of insurance coverages and reasonableness of
premiums and policies and establishing of financial requirements for
insurance carriers if S&P investment grade ratings cease to be
published generally;
2. Section 6.02(l) (Amendments to Project Documents; PWC Change Orders):
granting consents, waivers and approvals in respect of PWC Change
Orders and Principal Subcontracts;
3. Section 6.02(d) (Modification of Construction Budget or Construction
Schedule): approving adjustments, modifications and reallocations with
respect to the Construction Budget;
4. Section 6.02(m) (Transactions with Affiliates): approving certain
Affiliate transactions requested by the Borrower after consultation
with appropriate third party consultants;
5. Section 7.03(b)(x) (Remedies): communicating with the Borrower's
auditors during the continuance of any Event of Default;
6. Article III (Prepayments; Taxes): calculations of all payments under
Article III;
7. Section 9.01 (Appointment and Duties of Intercreditor Agent):
exercising the rights and performing the duties of the Intercreditor
Agent set forth in this Section;
8. Section 6.02(v) (Senior Managers): accepting the replacement to any
senior manager removed or replaced thereunder;
9. Section 8.06 (Successor Agents): removal of any Collateral Agent and
appointment of any successor pursuant to Section 8.06(b);
10. Definition of Permissible Project Completion Delay and Permissible
Provisional Acceptance Delay: approving the form and substance of
CFE's written recognition of its obligation to pay all documented
financial costs incurred by the Borrower as a result of the applicable
delay;
11. Definition of Subordinated Debt: directing the Borrower to establish a
perfected, first priority Lien in favor of the Onshore Collateral
Agent or the Onshore Collateral Agent;
12. Sections 4.01(j) and 4.03(e) (Opinions): determining whether the date
as of which any of the legal opinions required thereunder is dated is
acceptable, determining whether special New York counsel to the
Onshore Collateral Agent, the Onshore Collateral Agent and the
Offshore Depositary Bank is acceptable for purposes of providing the
legal opinion set forth in Section 4.03(e)(vi), determining whether
special New York counsel to the Onshore Collateral Agent is acceptable
for purposes of providing the legal opinion set forth in Section
4.03(e)(vii), and determining whether special Mexican counsel to the
Onshore Collateral Agent is acceptable for purposes of providing the
legal opinion set forth in Section 4.03(e)(viii); and
13. Section 6.01(v) (Report on Electromechanical Equipment): determining
whether the report of the Independent Engineer referred to in Section
6.01(v) is in form and substance satisfactory to the Intercreditor
Agent.
General Provision
All other routine, administrative or ministerial matters under the
Financing Documents, the decision (i) with respect to which matters could not
reasonably be expected to result in an Event of Default or have a material
adverse effect on the interests of any Secured Party and (ii) which does not
constitute a Fundamental Decision and is not a decision with respect to which
the Common Agreement or the Intercreditor Agreement requires the instruction or
direction of the Intercreditor Agent by any Lender or Lenders or any Facility
Administrative Agent or the Facility Administrative Agents (or the approval or
consent of any of the foregoing).
SCHEDULE 4.01(o)
SENIOR MANAGERS
(FLOW CHART)
SCHEDULE 5.01(c)
GOVERNMENTAL APPROVALS
PART A OF SCHEDULE 5.01(c)
Governmental Approvals that are either required to be obtained on or before the
Initial Closing Date or are required to be obtained at any time and are
obtainable on the Initial Closing Date
APPROVAL AUTHORITY ADDRESSEE DATE OF APPROVAL
-------- ------------ --------- -----------------------
A.1 Authorization for construction in a federal CNA CFE March 13, 2007
zone (Autorizacion para la construccion en zona
federal).
A.2 Permit for Land Use- Hostotipaquillo CFE
Municipality (Permiso de uso de suelo) Municipality Borrower December 14, 2006
A.3 Construction License - Hostotipaquillo CFE
Municipality (Licencia de Construccion) Municipality Borrower December 14, 2006
A.4 Authorization to occupy a federal zone CNA CFE March 13, 2007
(Autorizacion para la ocupacion de zona
federal)
A.5. Operating License regarding the April 25, 2007
Hydroelectric Plant (Licencia de Funcionamiento CNA CFE
de Central Hidroelectrica) Operation License with
respect to the
builder's power plants
is pending filing
A.6 Assignment for use of national waters April 13, 2007
(Asignacion para el uso o aprovechamiento de CFE 2, 955,520,000.00
aguas nacionales) - CNA m3/per year
A.7 Non-objection Official Communication from INAH CFE Official Communication,
the Instituto INAH dated March
APPROVAL AUTHORITY ADDRESSEE DATE OF APPROVAL
-------- ------------ --------- -----------------------
Nacional de Antropologia e Historia- 6, 2006
Official Communication
INAH, September
18, 2006
A.8 Non-objection Official Communication from INAH CFE Official Communication,
the Instituto Nacional de Antropologia e INAH, May 21, 2007
Historia- Project
A.9 Certificates of Non-interference of the
Works corresponding to the Project with works
in construction or planned by other Federal,
State or Municipal entities (Certificados de no
interferencia de los trabajos del proyecto y el
camino de acceso con obras y planes:
Comision Nacional del Agua CNA CFE November 14, 2005
State of Jalisco:
November 7, 2005
Secretaria de la Reforma Agraria SRA CFE State of Nayarit:
November 28, 2005
Secretaria de Desarrollo SEDEUR CFE January 5, 2006
▇▇▇▇▇▇ de Jalisco
Petroleos Mexicanos PEMEX CFE November 9, 2005
State of Jalisco:
November 14, 2005
Secretaria de Comunicaciones y Transportes SCT CFE
State of Nayarit:
December 22, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ January 13, 2006
Desarrollo Rural, Pesca y Alimentacion (State of Jalisco)
December 6, 2005
(State of Nayarit)
Secretaria de Turismo Nayarit SECTUR CFE January 6, 2006
APPROVAL AUTHORITY ADDRESSEE DATE OF APPROVAL
-------- ------------ --------- -----------------------
Secretaria de Desarrollo SEDECO CFE December 7, 2005
Economico de Nayarit
Secretaria de Obras Publicas SOP CFE November 28, 2005
Nayarit
A.10 Permit for the Extraction of Materials CNA Borrower Twenty (20) approvals
(Permisos para la Extraccion de Materiales) for extraction (see
attached list)
A.11 Environmental Impact Authorization for the SEMARNAT CFE February 27, 2007
construction operation and maintenance of the
Access Road (Autorizacion en Materia de Impacto
Ambiental para la construccion del Camino de
Acceso)
A.12 Environmental Impact Authorization for the SEMARNAT CFE July 10,, 2006
construction operation and maintenance of the
Project (Autorizacion en Materia de Impacto
Ambiental para la construccion del Proyecto )
A.13 Authorization to modify the use of forest SEMARNAT CFE September 19, ▇▇▇▇
▇▇▇▇▇--▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇▇ para el cambio
de utilizacion de terrenos forestales para el
Camino de Acceso)
A.14 Authorization to modify the use of forest SEMARNAT CFE June 6, 2007
lands--Project (Autorizacion para el cambio de
utilizacion de terrenos forestales para el
Proyecto)
SCHEDULE 5.01(c)
Attachment to Part A - See A.8.
LIST OF AUTHORIZATIONS REQUIRED AND OBTAINED IN CONNECTION WITH
THE EXTRACTION OF MATERIALS IN FEDERAL AREAS
The National Waters Commission ("CNA") has authorized the extraction of
materials at 20 different areas ("bancos"). As of the Initial Closing Date, CFE
has retrieved from CNA all 20 permits, which are listed below. The permits are
effective for four years and make reference to the authorized volumes of
materials to be extracted. Duties for the obtaining of the relevant concession
must be, and have been, paid before initiating the extraction. Duties must also
be paid regarding volume of materials extracted. The authorizations provide for
the prohibition to keep materials in Federal areas.
DATE OF
APPROVAL APPROVAL
-------- --------------
1. 08JAL200262/12EAOC07 March 2, 2007
2. 08JAL200263/12EAOC07 March 2, 2007
3. 08JAL200264/12EAOC07 March 2, 2007
4. 08JAL200265/12EAOC07 March 2, 2007
5. 08JAL200266/12EAOC07 March 2, 2007
6. 08JAL200267/12EAOC07 March 2, 2007
7. 08JAL200268/12EAOC07 March 2, 2007
8. 08JAL200269/12EAOC07 March 2, 2007
9. 08JAL200270/12EAOC07 March 2, 2007
10. 08JAL200272/12EAOC07 March 2, 2007
11. 08JAL200273/12EAOC07 March 2, 2007
12. 08JAL200274/12EAOC07 March 2, 2007
13. 08JAL200276/12EAOC07 March 2, 2007
14. 08JAL200277/12EAOC07 March 2, 2007
15. 08JAL200278/12EAOC07 March 2, 2007
16. 08JAL200280/12EAOC07 March 2, 2007
17. 08JAL200281/12EAOC07 March 2, 2007
18. 08JAL200275/12EAOC07 August 3, 2007
19. 08JAL200279/12EAOC07 August 3, 2007
20. 08JAL200271/12EAOC07 August 3, 2007
SCHEDULE 5.01(c)
GOVERNMENTAL APPROVALS
PART B OF SCHEDULE 5.01(c)
GOVERNMENTAL APPROVALS THAT ARE NEITHER REQUIRED TO BE OBTAINED NOR ARE
OBTAINABLE ON OR PRIOR TO THE INITIAL CLOSING DATE
STAGE WHEN
APPROVAL/ISSUING AUTHORITY REQUIRED (1) RESPONSIBLE COMMENTS
-------------------------- ------------ -------------- ---------------------------------
B.1 Authorization for the use of national Applicable for the water used in
waters (Autorizacion para la explotacion, uso o the construction activities.
aprovechamiento de las aguas nacionales) - CNA Borrower
Authorization for builder's
plants pending January 2008
B.2 Authorization for the purchase, Borrower
transportation, storage and use of explosive
materials (Autorizacion para la compra
transporte, almacenamiento y uso de
explosivos). SEDENA(1)
B.3 Environmental Impact authorization for the Borrower Project filed by CFE with the
final disposal of municipal solid residues. Municipality of Hostotipaquillo
(Autorizacion en material de impacto ambiental pending filing of application
para la disposicion final de residuos solidos with SEMADES (Secretaria de Medio
municipales) - STATE OF JALISCO, LAND OWNERS Ambiente para el Desarrollo
Sustentable--Estado de Jalisco)
B.4 Authorization for temporary storage of Borrower File for application is being
hazardous waste (Autorizacion como generador de integrated.
residuos peligrosos) - SEMARNAT
B.5 Authorization for the discharge of waste Borrower File for applicatiis being
water (Autorizacion para integrated while plaproject
----------
(1) All those approvals of which the "Stage when required" is not determined
herein, will be required at more advanced construction or operation stages,
when the natural resource/activity they refer to is either used, disposed
of, exploited, operated, generated, disposed of or as applicable. The
Borrower has filed or will file the corresponding applications in due
course; in the event a relevant approval is required for a resource nearly
to be used or exploited or an activity near to start without the approval
having been obtained, then the Borrower will contract the services of an
acceptable and duly authorized service provider. (1) While the respective
authorization is issued CPH, will subcontract the services of Explosivos y
Servicios para la Construccion, S.A. de C.V. which has the corresponding
authorizations for the purchase, transportation, storage and use of
explosive materials issued by SEDENA's representative offices for the State
of Jalisco on June 19, 2007 and for the State of Nayarit on December 15,
2006.
STAGE WHEN
APPROVAL/ISSUING AUTHORITY REQUIRED (1) RESPONSIBLE COMMENTS
-------------------------- ------------ -------------- ---------------------------------
descarga de aguas residuales) - CNA, STATE OF and final location is being
NAYARIT, MUNICIPALITY determined.
B.6 Delimitation of Federal area and area to be CFE Currently pending, reservoir area
protected - CNA (area de) has been embalse
marked.
B.7 Construction of new towns CFE In process for the reservoir area
(area de embalse).
B.8 Payment of rights for material extractions Borrower
from ejido lands or private property lands
(Pago de derechos por la extraccion de material
de terrenos ejidales o particulares) - LAND
OWNERS
B.9 Registration of concession with the Public Upon Borrower
Registry of Rights to Use Waters (Inscripcion obtaining the
del titulo de concesion de uso de aguas en el concession
Registro Publico de Derechos de Agua) - RPDA
B.10 Registration as Hazardous Waste Generator Borrower
and Authorization for Temporary Storage of
Hazardous Waste (Inscripcion como Generador de
Residuos Peligrosos--Registro Ambiental) -
SEMARNAT (2)
B.11 Authorization for the final disposal of Borrower
non-hazardous solid waste (Autorizacion
municipal para deposito de residuos solidos) -
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇.▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Discharge Sani Movil
Authorization--Movable Sanitary Cabinets 2000
(Autorizacion para descarga de aguas negras
----------
(2) Due to the nature of the hazardous waste that will be generated at the
Site, and such hazardous waste will not be finally disposed of at the site
nor stored there for long periods, the Borrower must obtain registration as
generator of hazardous waste, which it will obtain and will need to
supplemented each time the generated waste (either in type volume and other
characteristics) changes. Such registration includes the permit to
temporarily store such waste. As of the date hereof, the Borrower reports
no generation of hazardous waste. The Borrower has contracted and will
contract as required, the services of persons that have been granted with
permits for the transportation, storage and final disposal of such
hazardous waste.
STAGE WHEN
APPROVAL/ISSUING AUTHORITY REQUIRED (1) RESPONSIBLE COMMENTS
-------------------------- ------------ -------------- ---------------------------------
provenientes de casetas sanitarias portatiles)
- MUNICIPALITY(3)
B.13 Semiannual report on monitored wastewater Borrower This report is included in the
(Reporte semestral de descargas de aguas Annual Operating License B.15(ii)
residuales) - SEMARNAT (Cedula de Operacion Annual) with
respect of the hydroelectric
power plant.
Once the permits for the
discharge of waste waters are
obtained, the Borrower will start
submitting these reports
B.14 Control of emissions to the atmosphere Borrower This report is included in the
program (Programa de control de emisiones a la Annual Operating License B.15(ii)
atmosfera) - SEMARNAT (Cedula de Operacion Annual)
B.15 (I) Sole Environmental License (Licencia CFE
ambiental unica) SEMARNAT (II) Anual Operating
License (Cedula de Operacion Anual) SEMARNAT
B.16 Annual Operating License (Cedula de Borrower Borrower must submit the Annual
Operacion Anual) - SEMARNAT Operating License to report
hazardous wastes generated during
construction activities
B.17 Authorization for the use of land and Compania
installation of the campground settlements Hidroelectrica
currently known as "Mesa ▇▇ ▇▇▇▇▇▇" and La Yesca
"Agaves" (CHLY)
B.18 Filing of Training Programs with the Borrower
Ministry of Labor and adhesion to Training
Programs of such Ministry (Presentacion de
Programas de Capacitacion y Adiestramiento ante
la Secretaria del Trabajo y Prevision Social
para su aprobacion o adhesion a los sistemas de
la Secretaria) - STPS
----------
(3) On June 8, ▇▇▇▇, ▇▇▇ filed with the CNA, the corresponding services request
and application for permit of wastewaters discharge; for current discharge
of wastewaters from temporary sanitary cabinets; Sani Movil 2000, S.A. de
C.V., a service provider hired by CPH for such purpose, has been obtaining
the corresponding monthly permits.
STAGE WHEN
APPROVAL/ISSUING AUTHORITY REQUIRED (1) RESPONSIBLE COMMENTS
-------------------------- ------------ -------------- ---------------------------------
B.19 General Compliance with all other CFE
conditions, programs, monitoring and reporting
requirements provided in the RIAs (Resolutivo
de Impacto Ambiental del Proyecto) as well as
other obligations provided in the environmental
laws, regulations and official rules - RELEVANT
AUTHORITY
B.20 Operating License for the builder's power Borrower
plants. STATE OF JALISCO
SCHEDULE 5.01(j)
ENVIRONMENTAL NON-COMPLIANCE
NONE
SCHEDULE 5.01(r)
EASEMENTS, ETC
The two expropriation processes of the lands to become federal areas related to
1) the area of principal structures and basic infrastructure and 2) Access Road,
have been completed. CFE previously entered into advanced occupation agreements
(convenios de ocupacion anticipada) with the owners, holder of legal title,
ejidatarios, comuneros, agrarian communities or ejidos of the required lands for
the construction of the Access Road and the early stages of the construction of
the Project.
In a later stage of the Project, the reservoir area (area de embalse) will
affect the Ejido El Llano de los ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ y Sayulimita, Municipality
of Hostotipaquillo, the Municipality of La Yesca and the Ejido El Escalon, San
▇▇▇▇▇▇ de las ▇▇▇▇▇ y el ▇▇▇▇▇▇▇, Municipality of Tequila. The files
corresponding to the expropriation process of these lands were integrated. The
reservoir area will also affect approximately 85 owners of the so called
"pequena propiedad". The respective files are being prepared in order for CFE to
acquire legal title of those lands.
In any case, CFE has obtained consent of the owners, holders of legal title,
ejidatarios, comuneros, ejidos and agrarian communities for the construction of
the Project and Access Road.
SCHEDULE 5.01(hh)
POWERS OF ATTORNEY
As of the Execution Date, the Borrower has granted the following powers of
attorney:
I. Pursuant to the Borrower's articles of incorporation as evidenced by public
deed number 164,965 granted before ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, notary public
number 38 of Mexico, Federal District, on October 9, 2006:
1. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Kawage;
2. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
3. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
4. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇;
5. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
6. Prospero ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇;
7. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
8. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇;
9. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
10. ▇▇▇▇▇▇▇ de la ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
11. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇; and
12. ▇▇▇▇ de ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Such powers of attorney confer authority for lawsuits and collections and
acts of administration. In case of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the powers include the authority to grant and
revoke powers of attorney.
II. Pursuant to the resolution by the shareholders of the Borrower as evidenced
by public deed number 166,019 granted before ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
notary public number 38 of Mexico, Federal District, on October 8, 2007:
1. ▇▇▇▇▇▇▇ de la ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
2. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Kawage;
3. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and
4. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.
Such special powers of attorney confer authority to carry out all necessary
actions for the negotiation, execution and fulfillment of the Common
Agreement, the Public Works Contract, the Working Capital Facility Credit
Agreement, the Construction Facility Credit Agreement, the PWC Pledge
Agreement, the Borrower Pledge Agreement, the Subordination Agreement and
any other documents related thereto.
III. Pursuant to the resolution of the shareholders of the Borrower as evidenced
by public deed number 166,019 granted before ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
notary public number 38 of Mexico, Federal District, dated October 8, 2007,
the shareholders granted a power of attorney in favor of Banco Nacional de
Mexico, S.A. Institucion de Banca Multiple, Grupo Financiero Banamex as
Onshore Collateral Agent for the benefit of the Secured Parties to be
exercised only if and when an Event of Default would occur under the terms
of the Common Agreement.
IV. Pursuant to the resolution of the shareholders of the Borrower as evidenced
by public deed number 166,019 granted before ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
notary public number 38 of Mexico, Federal District, dated October 8, 2007,
the shareholders granted special power of attorney in favor of CT
Corporation System to receive on behalf of the Borrower, in any
jurisdiction, all kinds of notifications in relation to any judicial,
administrative, or arbitration proceeding derived from or related to the
Common Agreement, the Working Capital Facility Credit Agreement, the
Construction Facility Credit Agreement, the Subordination Agreement and any
other documents related thereto.
SCHEDULE 5.01(jj)
CAPITAL STOCK
CAPITAL STRUCTURE
CONSTRUCTORA DE PROYECTOS HIDROELECTRICOS, S.A. DE C.V.
PERCENTAGE
NO. OF OF SHARES OF
SHARES OF CAPITAL STOCK CAPITAL
STOCK ISSUED AND CERTIFICATE STOCK
SHAREHOLDER OUTSTANDING CAPITAL NO. VALUE OWNED
----------- ----------------- ------- ----------- ---------- ------------
Promotora e Inversora
ADISA, S.A. de C.V.
("Piadisa") 32,500.00 Fixed 1 $32,500.00 65%
Ingenieros Civiles
Asociados, S.A. de C.V.
("ICASA") 5,000.00 Fixed 2 $ 5,000.00 10%
La Peninsular Compania
Constructora, S.A. de C.V.
("Peninsular") 12,500.00 Fixed 3 $12,500.00 25%
--------- ---------- ---
TOTAL 50,000.00 N/A N/A $50,000.00 100%
========= ========== ===
EQUITY OWNERS OF ICASA:
SHAREHOLDER PARTICIPATION %
----------- ---------------
Constructoras ICA, S.A. de C.V 99.99999940%
Grupo ICA, S.A. de C.V. 0.00000037007%
Empresas ICA, S.A.B de C.V 0.00000003083%
Asesoria Tecnica y Gestion
Administrativa, S.A. de C.V. 0.00000019737%
-------------
TOTAL 100%
=============
EQUITY OWNERS OF PIADISA:
SHAREHOLDER PARTICIPATION %
----------- ---------------
Constructoras ICA, S.A. de C.V. 99.9999999744%
Grupo ICA S.A. de C.V. 0.000000025506%
--------------
TOTAL 100%
==============
EQUITY OWNERS OF PENINSULAR:
SHAREHOLDER PARTICIPATION %
----------- ---------------
Alcance Total, S.A. de C.V. 99.7104413%
Corporacion Coin, S.A. de C.V. 0.▇▇▇▇▇▇▇▇%
HSBC ▇▇▇▇ ▇▇▇▇▇▇, S.A. 0.28444941%
----------
TOTAL 100.00%
==========
EQUITY OWNERS OF ALCANCE TOTAL S.A. DE C.V.:
SHAREHOLDER PARTICIPATION %
----------- ---------------
Controladora de Proyectos y
Construcciones, S.A. de C.V. 99.9843795
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 0.0148047
Controladora de Proyectos y
Construcciones, S.A. de C.V. and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (as co-owners of one
share) 0.0011157
----------
TOTAL 100.00
==========
EQUITY OWNERS OF
LA NACIONAL COMPANIA CONSTRUCTORA, S.A. DE C.V.
SHAREHOLDER PARTICIPATION %
----------- ---------------
Alcance Total, S.A. de C.V. 95.692479
Corporacion Coin, S.A. de C.V. 3.87679716
HSBC Mexico, S.A., Institucion de Banca 0.4307238
Multiple, Grupo Financiero HSBC.
----------
TOTAL 100.00
==========
SCHEDULE 6.01(d)
INSURANCE REQUIREMENTS
(a) Insurance Maintained by the Principal Subcontractors. The Borrower
shall cause each Principal Subcontractor to maintain in full force and effect at
all times on and after the Initial Closing Date and continuing until the Project
Completion Date insurance policies as specified in, and otherwise complying with
the insurance requirements set forth in, the Principal Subcontract to which such
Principal Subcontractor is a party. The insurance policies required by this
clause (a) of this Schedule 6.01(d) shall be amended, except in the case of
Workers' Compensation Insurance, to waive any rights by the insurer to subrogate
against all subcontractors, the Borrower, the Secured Parties and their
respective officers and employees and to include as additional insureds all
sub-contractors, the Borrower, the Secured Parties and their respective officers
and employees.
(b) Insurance Maintained by the Borrower.
The Borrower shall procure at its own expense and maintain in full
force and effect at all times on and following the Initial Closing Date (except,
with respect to the transit insurance described in Clause (b)(G)(iii) of this
Schedule 6.01(d), as noted in Clause (b)(G) below) and continuing so long as any
Loan shall remain unpaid, any Lender shall have any Commitment under any Credit
Agreement or any Obligation shall remain unpaid or unperformed, insurance
policies with insurance carriers meeting the requirements set forth in Section
6.01(d)(ii)(A) of the Common Agreement, with limits and coverage provisions
sufficient to satisfy the requirements set forth in each of the Project
Documents, but in no event less than the limits and coverage provisions set
forth below:
A. Workers' Compensation Insurance: On or prior to the date on which
the Borrower first employs any personnel, workers' compensation insurance as
required by applicable Mexican laws and, to the extent exposure exists for
ex-patriots, US Longshoremen & Harbor Workers and the ▇▇▇▇▇ Act.
B. Employer's Liability Insurance: On or prior to the date on which
the Borrower first employs any personnel, employer's liability insurance
(including Occupational Disease) as required by applicable Mexican laws and, to
the extent exposure exists for ex-patriots, such employer's liability will be in
a limit of not less than U.S.$1,000,000 per accident. A maximum deductible or
self-insured retention of U.S.$25,000 shall be allowed.
C. General Liability Insurance: Liability insurance on an occurrence
basis, unless otherwise approved by the Administrative Agent, against claims for
personal injury (including bodily injury and death) and property damage. Such
insurance shall provide coverage for products-completed operations, blanket
contractual, premises/operation, explosion, collapse and underground hazards
coverage, broad form property damage, broad form contractual liability, personal
injury insurance, independent contractors liability and hostile fire liability
with a U.S.$1,000,000 minimum limit per occurrence and U.S.$1,000,000 in the
aggregate, for combined bodily injury and property damage; provided that policy
aggregates, if any, shall apply separately to claims occurring with respect to
the Project. A maximum deductible or self-insured
retention of U.S.$5,000 shall be allowed. Unless carried by the Contractor,
pollution liability shall be covered under the general liability policy or
separate pollution liability policy.
D. Automobile Liability Insurance: Automobile liability insurance
against claims for personal injury (including bodily injury and death) and
property damage covering all owned, leased non-owned and hired motor vehicles,
as applicable, including loading and unloading, with a U.S.$1,000,000 minimum
limit per occurrence for combined bodily injury and property damage and
containing appropriate Mexican insurance provisions wherever applicable.
E. Umbrella Excess Liability Insurance: Umbrella Excess Liability
Insurance of not less than U.S.$100,000,000 per occurrence and in the aggregate.
Such coverages shall be over and above coverage provided by the policies
described in paragraphs (B), (C) and (D) above whose limits shall apply toward
the U.S.$100,000,000 limits set forth in this section. The umbrella and/or
excess policies shall not contain endorsements which restrict coverages as set
forth in paragraphs (B), (C) and (D) above, and which are provided in the
underlying policies. If the policy or policies provided under this paragraph (E)
contain(s) aggregate limits applying to other operations of Borrower other than
the Project, and such limits are diminished below U.S.$50,000,000 by any
incident, occurrence, claim, settlement or judgment against such insurance which
has caused the carrier to establish a reserve, the Borrower shall take immediate
steps to restore such aggregate limits or shall provide other equivalent
insurance protection for such aggregate limits.
F. Aircraft/Watercraft Insurance: If the performance of any of the
Project Documents requires the use of any aircraft or watercraft that is owned,
leased or chartered by the Borrower, aircraft, marine or charterer's liability
insurance, as the case may be, with a U.S.$50,000,000 minimum limit per
occurrence for combined property damage and bodily injury, including passengers
and crew.
G. Builder's Risk Insurance: From the point of groundbreaking (except,
with respect to the transit insurance described in Clause (b)(G)(iii) of this
Schedule 6.01(d), as noted in Clause (b)(G) below) and through the Project
Completion Date, or until such time as cover is provided under an operational
insurance coverage, builder's risk insurance on an "all risk basis" on a
completed value form with "extended coverage" (including earthquake (subject to
the next paragraph), flood, collapse, sinkhole and mine subsidence) and "soft
cost coverage" on an "agreed amount" basis and providing (i) coverage for the
Project, including removal of debris, insuring the buildings, structures,
machinery, equipment, facilities, fixtures and other properties constituting a
part of the Project in a minimum aggregate amount not less than full replacement
value of the Project, subject to an annual aggregate limit of U.S.$100,000,000
for earthquake, flood and windstorm coverage; (ii) off-site coverage with a per
occurrence limit of U.S.$2,500,000 or such higher amount as is sufficient to
cover off-site equipment for which there have been progress payments; (iii)
transit coverage (including ocean cargo where ocean transit will be required)
with a per occurrence limit sufficient to cover the full insurable value of any
machinery, equipment or other properties constituting a part of the Project or
that is anticipated to become a part of the Project (from the time that the same
is ready to be shipped or otherwise transported from the premises of its
manufacturer and continuing until the same is delivered to the Site and is
covered by builder's risk insurance on an "all risk basis", including each
loading and unloading of the same); (iv) coverage for operational testing and
start-up with the same
dollar coverage and modifications as set out in (G)(i) above; (v) either under
the builders risk policy or by separate policy, terrorism insurance in an amount
not less than the maximum foreseeable loss as certified by the Borrower and
acceptable to the Intercreditor Agent; and (vi) business interruption insurance
(of a "delay", "delay in start-up" or "alop" nature) in a minimum aggregate
amount no less than the sum of fifteen (15) months debt service, profits, fixed
costs and other continuing expenses on an "all risk" basis, as set forth in
(G)(i) through (G)(v) above. The builders risk policy shall also provide
extended maintenance coverage of post completion warranty work and site visits
for the duration of the guarantee period. All such policies may have deductibles
of not greater than U.S.$100,000 per loss and business interruption/delay in
start-up coverage shall have a deductible not greater than forty-five (45) days
for all perils other than testing and commissioning and machinery breakdown
which shall have no greater than a sixty (60) day waiting period; operational
testing, machinery breakdown and Acts of God shall have a deductible of not
greater than U.S.$500,000 for physical damage. Notwithstanding the foregoing,
the Borrower shall be required to procure and maintain in full force the transit
insurance in described in subclause (iii) of this Clause (b)(G) commencing on
the date that is not fewer than thirty (30) days prior to any actual shipment of
property described in such subclause (iii).
H. Earthquake Coverage: Earthquake coverage shall include coverage for
movement, earthquakes, shocks, tremors, landslides, mine subsidence, volcanic
activity, sinkhole coverage, or any other earth movement, all whether direct or
indirect, approximate or remote or in whole or in part caused by, contributed to
or aggravated by any physical damage insured against by such policy regardless
of any other cause or event that contributes, concurrently or in sequence, to
the loss.
I. Flood Coverage: Flood coverage shall include, but not be limited
to, coverage for waves, tide or tidal water, of lakes, ponds, reservoirs,
rivers, harbors, streams, or other bodies of water, whether or not driven by
wind.
J. Endorsements: All policies of liability, physical damage and
business interruption insurance to be maintained by the Borrower shall provide
for waivers of subrogation in favor of the Secured Parties and their respective
Affiliates, officers, agents and employees (and such other Persons as may be
required by the Project Documents). All policies of liability insurance required
to be maintained by the Borrower under this clause (b) shall be endorsed as
follows:
(i) To provide a severability of interest and cross liability
clause if more than one party is an insured.
(ii) That the insurance shall be primary and not excess to or
contributing with any insurance or self-insurance maintained by the Secured
Parties.
(iii) To name the Secured Parties and their respective
Affiliates, officers, employees and agents (and such other Persons as may
be required by the Project Documents) as additional insureds (except in the
case of workers' compensation).
(c) Waiver of Subrogation. The Borrower hereby waives any and every
claim for recovery from the Secured Parties for any and all loss or damage
covered by any of the insurance policies to be maintained under this Common
Agreement to the extent that such loss or damage is recovered under any such
policy. Inasmuch as the foregoing waiver will preclude the assignment of any
such claim to the extent of such recovery, by subrogation (or otherwise), to an
insurance company (or other person), the Borrower shall give written notice of
the terms of such waiver to each insurance company which has issued, or which
may issue in the future, any such policy of insurance (if such notice is
required by the insurance policy) and shall cause each such insurance policy to
be properly endorsed by the issuer thereof to, or to otherwise contain one or
more provisions that, prevent the invalidation of the insurance coverage
provided thereby by reason of such waiver.
In the event any insurance (including the limits or deductibles
thereof) hereby required to be maintained shall not be reasonably available and
commercially feasible in the commercial insurance market, the Intercreditor
Agent shall not unreasonably withhold its agreement to waive such requirement to
the extent the maintenance thereof is not so available; provided, however, that
(i) the Borrower shall first request any such waiver in writing, which request
shall be accompanied by written reports provided to each of the Intercreditor
Agent and the Insurance Consultant and prepared by an insurance broker
acceptable to the Intercreditor Agent certifying that such insurance is not
reasonably available and commercially feasible in the commercial insurance
market for hydroelectric facilities of similar type, location and capacity (and,
in any case where the required amount is not so available, certifying as to the
maximum amount which is so available) and explaining in detail the basis for
such conclusions; (ii) the Insurance Consultant shall have, after reviewing such
written reports, provided a written statement to the Intercreditor Agent in form
and substance reasonably acceptable to the Intercreditor Agent agreeing with
such conclusions; (iii) at any time after the granting of any such waiver, but
not more often than once every three (3) months, the Intercreditor Agent may
request, and the Borrower shall furnish to the Intercreditor Agent and the
Insurance Consultant within thirty (30) days after such request, supplemental
reports reasonably acceptable to the Intercreditor Agent from such acceptable
insurance broker updating its prior reports and reaffirming such conclusions;
and (iv) any such waiver shall be effective only so long as such insurance shall
not be reasonably available and commercially feasible in the commercial
insurance market, it being understood that the failure of the Borrower to timely
furnish any such supplemental report shall be evidence that such waiver is no
longer effective because such condition no longer exists, but that such failure
is not the only way to establish such nonexistence.
(d) Application of Loss Proceeds. Each policy for property damage
insurance may provide for all amounts payable by the insurer with respect to any
property damage or losses of less than U.S.$2,500,000 per occurrence, so long as
the Intercreditor Agent has not notified the payor under any such insurance
policy that a Default or an Event of Default has occurred and is continuing, to
be paid in U.S. Dollars by the local insurer and reinsurer on or following the
Construction Facility Closing Date directly to the Offshore Depositary Bank for
deposit into the Dollar Loss Proceeds Deposit Account pursuant to a standard
first mortgage endorsement substantially equivalent to Lenders Loss Payable
Endorsement 438 BFU of ISO CF 1218, without contribution. Each policy insuring
business interruption (of a "delay", "delay in startup" or "alop" nature) shall
provide for (i) all amounts payable on or following the Construction
Facility Closing Date by the insurer in respect of Debt Service with respect to
any such business interruption to be paid in U.S. Dollars directly to the
Offshore Depositary Bank for deposit into the Dollar DSU Account and (ii) all
amounts payable by the insurer in respect of fixed costs with respect to any
such business interruption to be paid in U.S. Dollars on or following the
Construction Facility Closing Date directly to the Offshore Depositary Bank for
deposit into the Dollar Construction Account, in each case pursuant to a
standard first mortgage endorsement substantially equivalent to Lenders Loss
Payable Endorsement 438 BFU of ISO CF 1218, without contribution.
Subject to the terms of the Depositary Agreement (once executed), (A)
in case of any loss not exceeding U.S.$2,500,000 involving damage to or loss of
any Works, the Borrower shall make or cause to be made the necessary repairs to
or replacements of such Works; and (B) in case of any loss in excess of
U.S.$2,500,000 but not greater than U.S.$25,000,000 involving damage to or loss
of any Works, the Borrower shall be entitled to receive from the Offshore
Depositary Bank, pursuant to the terms of the Depositary Agreement (once
executed), insurance proceeds in respect of such loss as reimbursement for, or
payment of, the costs of repair and replacement of such Works if, and only if,
prior to application of such insurance proceeds, the Borrower shall have
provided the following to the Intercreditor Agent and the Independent Engineer
for their prior written approval (which approval shall be in their sole but
reasonable discretion): (1) contracts for such repair or replacement
demonstrating the Borrower's ability to effect such repair or replacement at a
cost not greater than such insurance proceeds (or, if such cost is greater,
accompanied by an explanation of the source of funds for such excess amounts
satisfactory to the Intercreditor Agent) and within a time frame that is in
accordance with the terms of the Public Works Contract and acceptable to the
Intercreditor Agent, (2) cash-flow projections generated through an annual
budgeting and financial pro forma updating process and other assurances
satisfactory to the Intercreditor Agent demonstrating the Borrower's ability to
meet its Obligations under the Financing Documents during and after such
reconstruction or repair, (3) assurances that all Project Documents and
Governmental Approvals shall remain in full force and effect during such period
and thereafter to the satisfaction of the Intercreditor Agent and that the
Borrower and the Project are in compliance with all material Requirements of Law
and all EHS Requirements, and (4) assurances that during and at the completion
of such repair or reconstruction, no Default or Event of Default will exist.
EXHIBIT A TO COMMON
AGREEMENT
[FORM OF ADDITIONAL PROJECT CONTRACT CONSENT]
ACKNOWLEDGMENT AND CONSENT AGREEMENT
ACKNOWLEDGMENT AND CONSENT AGREEMENT (this "Consent"), dated as of
[___________ ___, _____] between [INSERT NAME OF APPLICABLE PERSON] organized
under the laws of the United Mexican States (together with its successors and
permitted assigns, the "Company"), Citibank, N.A., not in its individual
capacity but solely as offshore collateral agent (together with its successors
and permitted assigns in such capacity, the "Offshore Collateral Agent") for the
Secured Parties (as defined in the Common Agreement referred to below) and Banco
Nacional de Mexico, Integrante del Grupo Financiero Banamex, not in its
individual capacity but solely as onshore collateral agent (together with its
successors and assigns in such capacity, the "Onshore Collateral Agent" and,
together with the Offshore Collateral Agent, the "Collateral Agents") for the
Secured Parties (as defined in the Common Agreement referred to below) and
consented to by CONSTRUCTORA DE PROYECTOS HIDROELECTRICOS, S.A. DE C.V., a
sociedad anonima de capital variable organized under the laws of the United
Mexican States (the "Borrower"). The Company, the Collateral Agents and the
Borrower are collectively referred to herein as the "Parties".
PRELIMINARY STATEMENTS
1. Pursuant to the International Public Bid (Licitacion Internacional
Publica) No. 18164093-001-07 (the "RFP"), the Borrower has been awarded a
contract to develop and construct a hydroelectric generating plant to be located
in the Hostotipaquillo municipality of the States of Jalisco and Nayarit,
Mexico, which construction shall be in accordance with the terms, conditions and
specifications set forth in the Bid (as hereinafter defined) for the Project (as
hereinafter defined) and the Mixed Financed Public Works Contract (Contrato
Mixto de Obra Publica Financiada), dated September 21, 2007, entered into by the
Consortium (as defined in the Common Agreement referred to below) and the
Comision Federal de Electricidad ("CFE").
2. The Borrower has entered into a Common Agreement, dated as of October
19, 2007 (as the same may be amended, supplemented or otherwise modified from
time to time, the "Common Agreement"), with WestLB AG, New York Branch as
Intercreditor Agent, as Working Capital Facility Administrative Agent and as
Construction Facility Administrative Agent, the Working Capital Facility Lenders
from time to time party thereto, the Construction Facility Lenders from time to
time party thereto, the Offshore Collateral Agent, the Onshore Collateral Agent
and the other Lenders and Lender Representatives from time to time party
thereto. Pursuant to the Common Agreement, the Lenders have agreed to make
available to the Borrower financing for the Project (as defined in the Common
Agreement) subject to, and in accordance with, the terms and conditions thereof
(the "Financing"). All capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Common Agreement.
3. The Company and the Borrower have entered into the [INSERT NAME OF
ADDITIONAL PROJECT CONTRACT] dated [__________ __, ____] for the performance of
[INSERT DESCRIPTION OF SCOPE OF RELEVANT ADDITIONAL PROJECT CONTRACT] the
Project (as it may be amended, modified or supplemented from time to time, the
"Services Agreement").
4. As security for the Borrower's Obligations, the Borrower has entered
into the U.S. Security Agreement and the Borrower Pledge Agreement, providing,
among other things, for the pledge by the Borrower to, [in the case of the U.S.
Security Agreement, the Offshore Collateral Agent, [and], in the case of the
Borrower Pledge Agreement, the Onshore Collateral Agent](4), in each case for
the benefit of the Secured Parties, of all of the Borrower's right, title and
interest under the Services Agreement.
5. It is a condition precedent to the Lenders making the Financing
available to the Borrower under the Common Agreement that this Consent shall
have been executed and delivered by the Parties. The Intercreditor Agent has
directed the Collateral Agents to execute this Consent.
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
SECTION 1. CONSENT TO PLEDGES, ETC.
The Company hereby (a) acknowledges that the Lenders are making available
the Financing in reliance upon, among other things, the execution, delivery and
performance by the Company of the Services Agreement and this Consent, (b)
irrevocably consents to the pledge by the Borrower of all its rights, title and
interest in and to (but not its obligations, liabilities or duties with respect
to) the Services Agreement as collateral for the Borrower's Obligations, and any
subsequent pledge, transfer and/or assignment by either or both of the
Collateral Agents, on behalf of the Secured Parties, in connection with the
exercise by any Lender of its rights and remedies as a secured creditor,
including, without limitation, the acquisition of all of the Borrower's rights
under the Services Agreement in foreclosure or otherwise, or the development of
the Project pending foreclosure through a receiver or otherwise, (c)
acknowledges the right (but not obligation) of each of the Collateral Agents or
their respective designees or any Third Party Transferee (as defined below), if
the Borrower shall fail to make any payment required to be made or perform any
act required to be performed by it under the Services Agreement, upon reasonable
notice to the Company and without waiving or releasing any obligation or
default, to at any time thereafter make such payment or perform such act for the
account and at the expense of the Borrower, (d) acknowledges, subject to the
provisions of Section 6 below, the right of each of the Collateral Agents or any
Third Party Transferee (as defined below), following an Event of Default under
the Common Agreement to make all demands, give all notices, take all actions and
exercise all rights of the Borrower under the Services Agreement, including
taking any action and exercising any right pursuant to the power of attorney
granted by the Borrower in favor of the Onshore Collateral Agent pursuant to the
Borrower Pledge Agreement, and (e) acknowledges and agrees, notwithstanding
anything to the contrary contained in the Services
----------
(4) insert as applicable, at written direction of Intercreditor Agent
2
Agreement, that none of the following shall constitute in and of itself, as
between the Company and any Secured Party, a default by the Borrower under the
Services Agreement or shall result in and of itself in a termination thereof:
(i) the pledge of all of the Borrower's right, title and interest under the
Services Agreement to each Collateral Agent, on behalf of the Secured Parties,
(ii) the development, construction or operation of the Project by either
Collateral Agent or any nominee(s) acting for either Collateral Agent following
an Event of Default under the Common Agreement, (iii) foreclosure or other
enforcement by any Secured Party of secured creditor remedies, (iv) acquisition
of the rights, title and interest of the Borrower under the Services Agreement
in foreclosure (or acceptance of an absolute assignment of the Services
Agreement in lieu of foreclosure) by any Secured Party or by any other party or
(v) assignment of the Services Agreement by either Collateral Agent, on behalf
of the Secured Parties, following a purchase in foreclosure or following an
absolute assignment thereof in lieu of foreclosure.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company represents and warrants that as of the date hereof:
(a) Organization. The Company is (i) duly organized and validly existing
and, if applicable, in good standing under the laws of the jurisdiction of its
organization, (ii) duly qualified to do business in Mexico and (iii) duly
qualified to do business in every other jurisdiction where the failure to be so
qualified would have a material adverse effect on the Company's ability to
perform its obligations under this Consent or the Services Agreement. The
Company has all requisite corporate power and authority to enter into and to
perform its obligations hereunder and under the Services Agreement, to carry out
the terms hereof and thereof and the transactions contemplated hereby and
thereby and to carry out its business as currently being conducted and as
proposed to be conducted by it.
(b) Authorization. The execution, delivery and performance by the Company
of this Consent and the Services Agreement have been duly authorized by all
necessary action on the part of the Company and do not require any approval or
consent of any equity holder of the Company or any holder (or any trustee for
any holder) of any indebtedness or other obligation of the Company, except as
has been heretofore obtained.
(c) Execution, Delivery; Binding Agreements. Each of this Consent and the
Services Agreement has been duly executed and delivered on behalf of the Company
by the appropriate officers or representatives of the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to bankruptcy, concurso mercantil, insolvency
or any other similar proceedings or laws applicable to creditors' rights
generally and also subject to any limitations on enforceability which may be
imposed by application of equitable principles. The Services Agreement is in
full force and effect and has not been assigned or pledged by the Company.
Except for the pledge referred to herein, the Company has not received any
notice of pledge, transfer or assignment of the Services Agreement by the
Borrower.
(d) Litigation. There is no action, suit, proceeding or investigation,
pending, or, to the best of the Company's knowledge, threatened, before or by
any governmental or regulatory authority, court, arbitrator or any other body
which may have a material adverse effect on the
3
Company's property, business, prospects, profits or condition (financial or
otherwise) or the Company's ability to perform its obligations hereunder or
under the Services Agreement, or which questions the validity, binding effect or
enforceability hereof or of the Services Agreement, any action taken or to be
taken pursuant hereto or thereto or any of the transactions contemplated hereby
or thereby, and the Company is not in default with respect to any order of any
court, governmental authority, arbitration board or tribunal.
(e) Compliance with Other Instruments, etc. The execution, delivery and
performance by the Company of this Consent or of the Services Agreement, and the
consummation of the transactions contemplated hereby or thereby, including the
incurrence by the Company of its financial obligations hereunder or thereunder,
did not, do not and will not conflict with, result in any breach of the terms,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any lien,
security interest, charge or encumbrance upon any of the properties or assets of
the Company pursuant to the provisions of, or result in any violation of, any
term of its articles of incorporation or by-laws, other organizational
documents, any resolution of the board of directors, shareholder or other
governing body of the Company or of any agreement, lease or instrument or of any
judgment, writ, injunction, decree, law, rule, regulation or order presently
applicable to it or any of its properties or by which it or its properties may
be bound or affected.
(f) Government Consent. No consent, permit, license or approval of, or
other action by or any notice to or filing or exemption with, any court or
administrative or governmental body was required pursuant to applicable Law in
connection with the execution and delivery of the Services Agreement or was or
is required pursuant to applicable Law in effect as of the date hereof in
connection with the execution and delivery of this Consent or the Services
Agreement or the performance by the Company of its obligations hereunder or
thereunder.
(g) No Default or Amendment. After giving effect to the pledge and any
assignment and/or transfer referred to in Section 1 and after giving effect to
the consent by the Company to such pledge, assignment and/or transfer, there
exists no Evento de Incumplimiento de El Cliente or Evento de Incumplimiento del
Contratista (each, as defined in the Services Agreement) or default or event of
default and no event or condition which, with the passage of time or the giving
of notice, or both, would constitute an Evento de Incumplimiento de El Cliente
or Evento de Incumplimiento del Contratista or default or event of default under
the Services Agreement and no event or condition which, either immediately or
with the passage of time or the giving of notice or both, would entitle the
Company or the Borrower to terminate or suspend all or any portion of its
obligations under the Services Agreement or to rescind all or any portion of the
Services Agreement (any such Evento de Incumplimiento de El Cliente or Evento de
Incumplimiento del Contratista, default or event of default or event or
condition, a "Default"). The Company has no existing claims, counterclaims,
offsets or defenses against the Borrower in respect of the Services Agreement
except for routine claims for payment under the Services Agreement which are not
overdue as of the date hereof. [Except for any amendments referred to herein,]
[t]he Services Agreement has not been amended, modified or supplemented in any
manner.
SECTION 3. COVENANTS OF COMPANY
4
The Company covenants that:
(a) The Services Agreement. Without the prior written consent of each of
the Collateral Agents (acting solely at the direction of the Intercreditor
Agent), the Company shall not (i) assign, sell, pledge or transfer in any other
manner any of its rights, duties or obligations under the Services Agreement or
consent or agree to take any action causing any of the foregoing, (ii) except as
specifically permitted pursuant to Section 6.02(l) of the Common Agreement,
enter into any amendment, supplement or other modification of the Services
Agreement or (iii) terminate, rescind or suspend or consent or agree to take any
action causing the termination, suspension, rescission or assignment of the
Services Agreement (except as expressly permitted by the terms hereof).
(b) Further Assurances. The Company shall execute and deliver such further
documents and do such other acts and things as either Collateral Agent or the
Intercreditor Agent may reasonably request in order to fully effectuate the
purposes of this Consent.
(c) Payments otherwise payable to the Borrower. Unless otherwise instructed
by either of the Collateral Agents (acting solely at the direction of the
Intercreditor Agent), the Company shall pay any and all amounts in whatever form
and whatever nature payable to the Borrower pursuant to or in respect of the
Services Agreement by wire transfer directly to the Offshore Depositary Bank in
U.S. Dollars for deposit into the account specified in Schedule 3(c) hereto, or
as may otherwise be provided in writing by either of the Collateral Agents to
the Company from time to time, and the Borrower hereby irrevocably consents to
any and all such payments and deposits being made in such manner.
SECTION 4. RIGHTS OF SECURED PARTIES
The Company agrees that the Secured Parties, any purchaser or transferee in
foreclosure of all or any portion of the Project (or any transferee of a deed in
lieu of foreclosure), and their successors and assigns, shall have the following
rights with respect to the Services Agreement:
(a) Notwithstanding anything to the contrary contained in the Services
Agreement, the Company hereby agrees that it will not terminate or rescind the
Services Agreement or suspend all or any portion of its obligations under the
Services Agreement due to a Default until (i) the Company provides written
notice (hereinafter called a "Default Notice") of such Default by the Borrower
to each of the Collateral Agents (on behalf of the Secured Parties) and (ii) the
Secured Parties shall have been given the right (but not the obligation) to cure
the Defaults listed in any Default Notice within one-hundred twenty (120) days
after receipt of the Default Notice by each of the Collateral Agents (or, with
respect to non-monetary Defaults, such longer period of time as may be necessary
under the circumstances to cure such Default, provided that the Secured Parties
are proceeding with diligence to cure such Default); provided, however, that if
the Default is peculiar to the Borrower and not curable by the Secured Parties,
such as the insolvency, concurso mercantil, bankruptcy, general assignment for
the benefit of creditors, or appointment of a receiver, trustee, custodian, or
liquidation of the Borrower or its properties, then notwithstanding the
Company's right to terminate or rescind or suspend all or any portion of its
obligations under the Services Agreement, the Secured Parties shall be entitled
to exercise their rights under this Consent. Once such Defaults are timely cured
by any of the Secured
5
Parties, there shall no longer be deemed to be any Default under the Services
Agreement in respect of such Defaults so cured. No curing of or attempt to cure
any Defaults under the Services Agreement shall be construed as an assumption by
the Secured Parties of any of the obligations, covenants or agreements of the
Borrower under the Services Agreement.
(b) Subject to the provisions of Section 6 below, the Company will accept
performance of the Borrower's obligations under the Services Agreement by any
Collateral Agent, or their respective nominee(s) acting for the Secured Parties,
or any Third Party Transferee (as defined below), in lieu of the Borrower's
performance of such obligations; provided, however, that, nothing herein shall
in any way obligate either Collateral Agent to perform any or all of the
Borrower's obligations under the Services Agreement.
SECTION 5. BANKRUPTCY PROTECTIONS
(a) Notwithstanding any provision in the Services Agreement to the
contrary, in the event of the rejection of the Services Agreement by operation
of law or by a receiver of the Borrower or otherwise pursuant to bankruptcy,
concurso mercantil, insolvency or any other proceedings of similar nature or in
the event the Services Agreement is terminated for any other reason (other than
as a result of a default thereunder which was curable hereunder or thereunder
and which was not appropriately cured as provided herein or therein), at the
request of either Collateral Agent, the Company will enter into a new agreement
with the applicable Collateral Agent(s) or with the nominee(s) thereof, for the
remainder of the originally scheduled term of the Services Agreement, effective
as of the date of such rejection, with the same covenants, agreements, terms,
provisions and limitations as are contained in the Services Agreement.
(b) If either Collateral Agent or its nominee is prohibited by any process
or injunction issued by any court having jurisdiction of any bankruptcy,
concurso mercantil, insolvency or any other proceeding of similar nature
involving the Borrower from continuing the Services Agreement in place or from
otherwise exercising any of its rights or remedies hereunder or under the
[Borrower Pledge Agreement [or] the U.S. Security Agreement](5) in respect of
the Services Agreement, then the times specified herein for the exercise by such
Collateral Agent of any right or benefit granted to it hereunder (including
without limitation the time period for the exercise of any cure rights granted
hereunder) shall be extended for the period of such prohibition; provided, that
such Collateral Agent is diligently pursuing such rights or remedies.
SECTION 6. LIABILITY OF SECURED PARTIES AND THIRD PARTY TRANSFEREES
Upon any transfer of the Borrower's rights under the Services Agreement
pursuant to the exercise of the remedies of the Secured Parties and written
notice thereof to the Company, (i) one or more Secured Parties or any third
party to which such rights are transferred by the Secured Parties (hereinafter a
"Third Party Transferee") shall succeed to all of the Borrower's rights, title
and interest under and in connection with the Services Agreement and shall be
obligated to perform all the terms and conditions of the Services Agreement,
except that, notwithstanding anything to the contrary herein, the Secured
Parties or any Third Party Transferee shall not be personally liable for the
performance of the obligations under the
----------
(5) insert as applicable, at written direction of Intercreditor Agent
6
Services Agreement except to the extent of all of its right, title and interest
in and to the Project and except that the Secured Parties or any Third Party
Transferee shall not be required to perform or cause to be performed any of the
Borrower's obligations under the Services Agreement (other than the Borrower's
obligation for the payment of all amounts due and payable to the Company under
the terms of the Services Agreement) that remain unperformed at the time that
the Borrower's rights under the Services Agreement are transferred to the
Secured Parties or such Third Party Transferee other than continuing
non-monetary defaults under the Services Agreement that are capable of
performance by such Secured Party or Third Party Transferee or be liable for any
prior act or omission of the Borrower, (ii) the Secured Parties, upon the
transfer to a Third Party Transferee, shall have no liabilities, duties or
obligations to the Company under the Services Agreement, except as arose during
the period rights in the Services Agreement were transferred to and held by the
Secured Parties pursuant to clause (i) of this paragraph, provided, however,
that, nothing herein shall in any way obligate either Collateral Agent to
perform any or all of the Borrower's obligations under the Services Agreement
prior to any assumption thereof as described in this paragraph, and (iii) the
Company shall continue to perform its respective obligations under the Services
Agreement in favor of the assuming party as if such party had thereafter been
named as the Borrower under the Services Agreement.
SECTION 7. NOTICES
All notices and other communication hereunder shall be in writing, shall
refer on their face to the Services Agreement (although failure to so refer
shall not render any such notice or communication ineffective), shall be sent by
first class mail, facsimile, telex, by hand or by overnight courier service and
shall be directed:
(a) if to the Borrower, addressed to:
Constructora de Proyectos Hidroelectricos, S.A. de C.V.
c/o Empresas ICA, S.A.B. de ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, D.F., Mexico
Attention: Ing. ▇▇▇▇▇▇▇ de ▇▇ ▇▇▇▇▇▇.
Telephone: (5255) 5272-9991 ext. 3670
Telecopier: (5255) 5227-5046
(b) if to the Company, addressed to,
[_________________]
(c) if to the Offshore Collateral Agent or any other Secured Party (other
than the Onshore Collateral Agent), addressed to:
Citibank, N.A.
Agency and Trust Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [________]
Telephone: [_______]
Telecopier: [______]
7
(d) if to the Onshore Collateral Agent or any other Secured Party (other
than the Offshore Collateral Agent), addressed to:
Banco Nacional de Mexico, Integrante del Grupo Financiero Banamex
Bosque de Duraznos 75 P.H.
Col. Bosques de las ▇▇▇▇▇
▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, D.F.
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇ (▇▇) ▇▇▇▇▇▇▇▇ / 18
Telecopier: ▇▇ (▇▇) ▇▇▇▇▇▇▇▇ /30 /40
(e) to such other address as the Company, the Borrower or the applicable
Collateral Agent may designate by prior written notice to the other Parties
given pursuant hereto.
A copy of any notice or other communication hereunder shall be sent to the
Borrower in accordance with this Section 7; provided, however, that the failure
to provide such notice shall not affect the validity of any communication sent
or action taken pursuant to this Consent.
SECTION 8. GOVERNING LAW; SUBMISSION TO JURISDICTION
(a) THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
(b) Each of the Parties hereto hereby (i) expressly and irrevocably submits
and consents to the jurisdiction of the courts of the United States located in
the Borough of Manhattan, and any appellate court having jurisdiction over
appeals from any such courts, in any action to resolve any controversy or claim
arising out of this Consent, (ii) agrees that all claims in such action may be
decided in any such court, (iii) waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum and (iv) consents to the
service of process by registered or certified mail (or any substantially similar
form of mail), postage prepaid and return receipt requested, or by personal
service within or without the State of New York, at the address for notices
referred to in Section 7. A final judgment in any such action shall be
conclusive and may be enforced in other jurisdictions. Furthermore each Party
hereby submits to the competent courts of its corporate domicile in any action
or proceeding against it in connection with this Consent. Nothing herein shall
affect the right of any Party to bring legal action or proceedings in any other
competent jurisdiction.
(c) Each of the Borrower and the Company hereby irrevocably appoints CT
Corporation System (the "Process Agent"), with an office on the date hereof at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on its
behalf and on behalf of its properties, service of process that may be served in
any such action. Service upon the Process Agent shall be deemed to be personal
service on the Borrower and/or the Company, as the case may be, and shall be
legal and binding upon the Borrower and/or the Company, as the case may
8
be, for all purposes notwithstanding any failure to mail copies of such legal
process to the Borrower and/or the Company, or any failure on the part of the
Borrower and/or the Company to receive the same. Each of the Borrower and the
Company agrees that it shall at all times continuously maintain an agent to
receive service of process in the State of New York on behalf of itself and its
properties, and, in the event that for any reason the Process Agent shall not
serve as agent for the Borrower or the Company, as the case may be, to receive
service of process in the State of New York on its behalf, the Borrower or the
Company, shall promptly appoint a successor satisfactory to the Offshore
Collateral Agent (acting at the written direction of the Intercreditor Agent) so
to serve, advise the Offshore Collateral Agent thereof, and deliver to the
Offshore Collateral Agent evidence in writing of the successor agent's
acceptance of such appointment. Nothing herein shall affect the right of any
Party to effect service of process in any other manner permitted by applicable
law. The Company has attached hereto a duly notarized irrevocable special power
of attorney which shall be sufficient for purposes of [INSERT APPLICABLE
NATIONAL LAW] and each other document or action necessary or appropriate to
validate the appointment of the Process Agent on the terms set forth in this
Consent and has attached hereto opinion[s] of counsel as to the due organization
and existence of the Company, the due authorization and execution of the
Services Agreement and this Consent and the legality, validity and
enforceability of the Services Agreement and this Consent and such other matters
as either Collateral Agent has requested.
(d) No Security. To the extent the Borrower or the Company may, in any
action or proceeding arising out of or relating to this Consent and any of the
other Financing Documents, be entitled under applicable Law to require or claim
that any Secured Party post security for costs or take similar action, the
Borrower and the Company hereby irrevocably waive and agree not to claim the
benefit of such entitlement.
SECTION 9. WAIVER OF JURY TRIAL
THE BORROWER, THE COMPANY AND EACH OF THE COLLATERAL AGENTS EACH HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CONSENT, OR ANY OTHER INSTRUMENT
OR DOCUMENT DELIVERED HEREUNDER.
SECTION 10. MISCELLANEOUS
(a) Separate Counterparts; Amendments, Waiver. This Consent may be executed
in separate counterparts, each of which when so executed and delivered shall be
an original but all such counterparts shall constitute one and the same
instrument. Neither this Consent nor any of the terms hereof may be terminated,
amended, supplemented, waived or modified except by an instrument in writing
signed by each of the Company, the Borrower and each of the Collateral Agents.
(b) Severability. Any provision of this Consent that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition
9
or enforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(c) Successors and Assigns. This Consent shall be binding upon and inure to
the benefit of the Company and its successors and permitted transferees and
assigns, and the Secured Parties and the respective successors, transferees and
assigns of the Secured Parties. The Company shall not, without the prior written
consent of each of the Collateral Agents, assign or transfer any of its rights,
duties or obligations hereunder or consent or agree to take any action causing
any of the foregoing.
10
IN WITNESS WHEREOF, the Parties have executed this Consent as of the day
and year first-above written.
[INSERT NAME OF APPLICABLE PARTY]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CITIBANK, N.A.,
not in its individual capacity but
solely as Offshore Collateral Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANCO NACIONAL DE MEXICO,
INTEGRANTE DEL GRUPO FINANCIERO BANAMEX,
not in its individual capacity but
solely as Onshore Collateral Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CONSENTED TO BY:
CONSTRUCTORA DE PROYECTOS
HIDROELECTRICOS, S.A. DE C.V.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE 3(C)
ACCOUNT DEPOSIT INFORMATION
For deposits into the Dollar Revenue Account:
Bank: [_______________________]
Account Name: [_______________________]
Account #: [_______________________]
ABA #: [_______________________]
Attention: [_______________________]
Ref: [_______________________]
EXHIBIT B TO COMMON
AGREEMENT
SEE FOLLOWING PAGE FOR
FORM OF INTERCREDITOR AGREEMENT
EXHIBIT B TO THE
COMMON AGREEMENT
================================================================================
INTERCREDITOR AGREEMENT
dated as of ________________, 2007
among
WESTLB AG, NEW YORK BRANCH,
as Working Capital Facility Administrative Agent,
CITIBANK, N.A.,
as Offshore Collateral Agent,
BANCO NACIONAL DE MEXICO, S.A., INTEGRANTE DEL GRUPO FINANCIERO
BANAMEX,
as Onshore Collateral Agent
WESTLB AG, NEW YORK BRANCH,
as Construction Facility Administrative Agent
and
WESTLB AG, NEW YORK BRANCH,
as Intercreditor Agent
for and on behalf of each of the Secured Parties
================================================================================
Table of Contents
Page
----
ARTICLE 1 - DEFINITIONS 1
1.1 Definitions 1
1.2 Rules of Construction 4
ARTICLE 2 - INFORMATION; MEETINGS; NOTICES 4
2.1 Provision of Information; Meetings 4
2.2 Notice of Amounts Owed 5
2.3 Notice of Defaults 5
2.4 Notice of Non-Pro Rata Payments 5
2.5 Notice of Termination or Reduction of Commitments 6
2.6 Reports of the Independent Engineer 6
2.7 No Reliance 6
ARTICLE 3 - PAYMENTS; SHARING; APPLICATION 6
3.1 Payments Received by Intercreditor Agent or any Collateral Agent 6
3.2 Payments Received by Any Other Secured Party 6
3.3 Sharing of Payments within a Credit Facility 7
3.4 Amounts Not Subject to Sharing 7
3.5 Payments under the Sponsor Guarantees 7
3.6 Presumption Regarding Payments 8
3.7 No Separate Security 8
ARTICLE 4 - ACTIONS; BINDING EFFECT 8
4.1 Actions Subject to Common Agreement and Intercreditor Agreement 8
4.2 Binding Effect 9
ARTICLE 5 - REMEDIES; ENFORCEMENT ACTION 9
5.1 Coordination 9
5.2 Election Following Event of Default 9
5.3 Exercise of Remedies; Enforcement Action 11
5.4 Cooperation 13
ARTICLE 6 - APPLICATION OF PROCEEDS 13
6.1 General Application 13
6.2 Sponsor Guarantees 15
6.3 Working Capital Facility Collateral and Disbursement LCs 16
6.4 Order of Certain Actions 17
ARTICLE 7 - AMENDMENTS; WAIVERS 18
7.1 Amendments to This Agreement 18
7.2 Amendments to, Waivers Under, and Instructions with Respect to
the Other Financing Documents 18
7.3 Effect of Amendment on Intercreditor Agent and Collateral Agents 18
i
ARTICLE 8 - MISCELLANEOUS 18
8.1 Addresses 18
8.2 Entire Agreement 18
8.3 Governing Law 18
8.4 Submission to Jurisdiction 19
8.5 Waiver Of Jury Trial 19
8.6 Severability 19
8.7 Headings 19
8.8 Successors and Assigns 19
8.9 Counterparts 19
8.10 No Partnership 19
8.11 Third-Party Beneficiaries 19
8.12 Obligations of Borrower Unaffected 20
8.13 Regarding the Collateral Agents and the Intercreditor Agent 20
ii
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT, dated as of [____________ __], 2007 (this
"Agreement"), is by and among WestLB AG, New York Branch, as Working Capital
Facility Administrative Agent (the "Working Capital Facility Administrative
Agent"), Citibank, N.A., as Offshore Collateral Agent (the "Offshore Collateral
Agent"), Banco Nacional de Mexico, S.A., Integrante del Grupo Financiero
Banamex, as Onshore Collateral Agent (the "Onshore Collateral Agent"), WestLB
AG, New York Branch, as Construction Facility Administrative Agent (the
"Construction Facility Administrative Agent"), and WestLB AG, New York Branch,
as Intercreditor Agent for and on behalf of each of the Secured Parties (the
"Intercreditor Agent"). Capitalized terms used herein shall be defined as
provided in Article 1 herein.
RECITALS
A. Each of: (i) Constructora de Proyectos Hidroelectricos, S.A. de
C.V., a sociedad anonima de capital variable organized under the laws of Mexico
(the "Borrower"); (ii) the Intercreditor Agent; (iii) the Working Capital
Facility Lenders and the Construction Facility Lenders from time to time party
thereto; (iv) the Working Capital Facility Administrative Agent; (v) the
Construction Facility Administrative Agent; (vi) the Offshore Collateral Agent;
(vii) the Onshore Collateral Agent; and (viii) the other Secured Parties from
time to time party thereto have entered into the Common Agreement, dated as of
October 19, 2007 (as amended, supplemented or otherwise modified from time to
time, the "Common Agreement").
B. The Financing Documents contemplate the execution, delivery and
implementation of this Agreement and it is a condition precedent to certain of
the obligations of the Secured Parties under the Financing Documents that this
Agreement shall have been executed and delivered by the parties hereto and shall
have become unconditionally and fully effective in accordance with its terms.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual agreements herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 Definitions. Except as otherwise expressly provided herein
(including the recitals hereto), capitalized terms used in this Agreement shall
have the meanings provided in the Common Agreement. The following terms used in
this Agreement shall have the respective meanings given such terms in this
Section 1.1:
"Acceleration Notice" has the meaning set forth in Section 5.3.4.
"Agreement" has the meaning set forth in the introductory paragraph
hereof.
1
"Bankruptcy Event of Default" means any Event of Default described in
Section 7.01(g) of the Common Agreement with respect to the Borrower.
"Bankruptcy Proceeding" means, with respect to any Person, any
insolvency or bankruptcy proceeding, or any receivership, liquidation,
reorganization or other similar proceeding in connection therewith relative to
such Person, or any proceeding for voluntary liquidation, dissolution or other
winding up of such Person, whether or not involved in insolvency or bankruptcy
"Borrower" has the meaning set forth in the recitals hereto.
"Common Agreement" has the meaning set forth in the recitals hereto.
"Construction Facility Administrative Agent" has the meaning set forth
in the introductory paragraph hereof.
"Construction Facility Administrative Agent Claims" means all
obligations of the Borrower, now or hereafter existing, to pay fees, costs,
expenses and other amounts to the Construction Facility Administrative Agent
under the Financing Documents (including pursuant to Section 10.04 of the Common
Agreement) and any agreements, instruments and documents executed and delivered
pursuant thereto.
"Enforcement Action" means, except as otherwise provided in Section
4.1 or 5.2.4, any action or proceeding (including a Bankruptcy Proceeding) by
any Collateral Agent or any other Secured Party for the enforcement of their
respective rights under any or all of the Financing Documents (other than the
Guaranteees) or in respect of the Collateral (including termination of any
Lender's Construction Facility Commitment(s) and/or Working Capital Facility
Commitment(s)).
"Enforcing Required Lenders" means:
(a) with respect to any Event of Default (other than a Payment
Event of Default or a Bankruptcy Event of Default), Construction Facility
Lenders constituting at least the Construction Facility Majority Lenders; and
(b) with respect to any Payment Event of Default, Lenders
constituting a Lender Percentage equal to at least ten percent (10%).
"Intercreditor Agent" has the meaning set forth in the introductory
paragraph hereof.
"Intercreditor Agent Claims" means all obligations of the Borrower,
now or hereafter existing, to pay fees, costs, expenses and other amounts to the
Intercreditor Agent under the Financing Documents (including pursuant to Section
10.04 of the Common Agreement) and any agreements, instruments and documents
executed and delivered pursuant thereto.
2
"Lender Percentage" means, as of any date of determination, with
respect to any vote of the Lenders hereunder, the sum of the Pro Rata Shares of
the Lenders voting in favor of or against the same position, as the case may be.
"Offshore Collateral Agent" has the meaning set forth in the
introductory paragraph hereof.
"Offshore Collateral Agent Claims" means all obligations of the
Borrower, now or hereafter existing, to pay fees, costs, expenses and other
amounts to the Offshore Collateral Agent under the Financing Documents
(including pursuant to Section 10.04 of the Common Agreement) and any
agreements, instruments and documents executed and delivered pursuant thereto.
"Onshore Collateral Agent" has the meaning set forth in the
introductory paragraph hereof.
"Onshore Collateral Agent Claims" means all obligations of the
Borrower, now or hereafter existing, to pay fees, costs, expenses and other
amounts to the Onshore Collateral Agent under the Financing Documents (including
pursuant to Section 10.04 of the Common Agreement) and any agreements,
instruments and documents executed and delivered pursuant thereto.
"Payment Event of Default" means any Event of Default described in
Section 7.01(a) or Section 7.01(b) of the Common Agreement.
"Pro Rata Share" means, as of any date of determination and with
respect to any Lender, a fraction (expressed as a percentage) (a) the numerator
of which is the sum of (i) the aggregate outstanding principal amount of Loans
held by such Lender and (ii) the unutilized portion of the aggregate amount of
Construction Facility Commitments and Working Capital Facility Commitments of
such Lender and (b) the denominator of which is the sum of (i) the aggregate
outstanding principal amount of Loans held by all Lenders and (ii) the aggregate
unutilized Construction Facility Commitments and Working Capital Facility
Commitments of all Lenders.
"Remedies Effective Date" has the meaning set forth in Section 5.3.1.
"Remedies Initiation Notice" has the meaning set forth in Section
5.2.1.
"Remedies Instruction" has the meaning set forth in Section 5.3.1.
"Remedies Notice" has the meaning set forth in Section 5.2.2.
"Standstill Period" has the meaning set forth in Section 5.2.2.
"Third Party Participant" means the collective reference to each
Person other than the Borrower (or any Secured Party) to any Project Document.
3
"Working Capital Facility Administrative Agent" has the meaning set
forth in the introductory paragraph hereof.
"Working Capital Facility Administrative Agent Claims" means all
obligations of the Borrower, now or hereafter existing, to pay fees, costs,
expenses and other amounts to the Working Capital Facility Administrative Agent
under the Financing Documents (including pursuant to Section 10.04 of the Common
Agreement) and any agreements, instruments and documents executed and delivered
pursuant thereto.
"Working Capital Facility Collateral" means (i) any and all accounts
into which the proceeds of any drawing on any Disbursement LC are deposited and
all cash, cash equivalents, financial assets, payments, securities, investments,
investment property, securities entitlements, instruments, other amounts and
other property at any time held, maintained or carried in, or on deposit in or
credited to, such accounts (including any income or gain earned thereon and any
proceeds thereof), (ii) all rights, claims and causes of action, if any, that
the Borrower may have against any Person in respect of the foregoing and (iii)
all products and proceeds of any or all of the foregoing.
1.2 Rules of Construction. Except as otherwise expressly provided
herein, the rules of construction set forth in the Common Agreement shall apply
to this Agreement.
ARTICLE 2 - INFORMATION; MEETINGS; NOTICES
2.1 Provision of Information; Meetings.
2.1.1 Each Secured Party may, from time to time (as it deems
reasonably necessary or appropriate in its sole judgment), consult with the
other Secured Parties with respect to the Project, the Obligations, the
Collateral or the affairs of the Credit Parties in general.
2.1.2 Any Facility Administrative Agent may, at any time following the
occurrence and during the continuation of an Event of Default request that a
meeting or meetings of the Secured Parties, at reasonable times and locations,
and with reasonable frequency, be convened, and upon such request having been
given in accordance herewith, such meetings shall be convened as provided
herein. Such a request for meeting shall be made in a written notice given by
any Facility Administrative Agent to the Intercreditor Agent and by the
Intercreditor Agent to each Secured Party in accordance herewith. Each such
notice shall state the date of such meeting (which shall be not less than
fifteen (15) days after the date of such notice, unless otherwise agreed by each
Facility Administrative Agent) and a general outline of the issues to be
discussed at such meeting. Any Secured Party shall have the right to appoint any
Person (including another Secured Party) to act as its representative at any
such meeting of Secured Parties. No Secured Party shall be obligated to attend
any such meetings, and no votes shall be taken at such meeting unless consented
to by each Facility Administrative Agent.
2.1.3 Each Secured Party shall use reasonable efforts to make
available promptly to each Facility Administrative Agent any material
information received by
4
such Secured Party regarding the occurrence of any Default or Event of Default
or other event requiring joint action by the Secured Parties or regarding any
event or circumstance which would reasonably be expected to result in a Material
Adverse Effect; provided, however, that this Section 2.1.3 shall not require any
Secured Party to make available to any Facility Administrative Agent (a)
information subject to confidentiality restrictions prohibiting such disclosure,
(b) analyses, data or reports prepared solely for internal use or (c)
information that the Borrower is obligated to provide. None of the Secured
Parties shall have any liability to any other Secured Party or any other Person
for any failure to make available to any Facility Administrative Agent or the
Intercreditor Agent such information or any information pursuant to Section
2.1.4 or for any inaccuracy or incompleteness of any such information made
available in good faith.
2.1.4 Each Secured Party further agrees with each of the other Secured
Parties that, subject to Section 2.1.3, it will from time to time provide such
information upon request to the Intercreditor Agent and the respective Facility
Administrative Agents as may be necessary to enable such Persons to make any
calculation required under the Financing Documents.
2.2 Notice of Amounts Owed. In the event that the consent, approval,
waiver, determination or other direction of any percentage or number of the
Lenders is required in accordance with this Agreement, then upon the request of
the Intercreditor Agent, each Facility Administrative Agent shall promptly
notify the Intercreditor Agent in writing, as of any time that the Intercreditor
Agent may specify in such request (but in no event less than three (3) Business
Days from the date of such request), of (i) the aggregate amount of the
respective Obligations owing under any Credit Facility in respect of which such
Facility Administrative Agent serves as agent or representative as of such date,
(ii) the components of such Obligations, (iii) if applicable, any available
Construction Facility Commitments or Working Capital Facility Commitments and
(iv) such other information as the Intercreditor Agent may reasonably request.
2.3 Notice of Defaults. Promptly after any Facility Administrative
Agent obtains knowledge of the occurrence of any Default or Event of Default
under any Credit Agreement or that any Default or Event of Default under any
Credit Agreement has ceased to exist or has been rescinded, such Facility
Administrative Agent shall notify the Intercreditor Agent in writing thereof (a
"Notice of Default") unless the Facility Administrative Agent obtained such
knowledge from the Intercreditor Agent. Each such Notice of Default shall
specifically refer to this Section 2.3 and shall describe such Default or Event
of Default (or its cessation or rescission) in reasonable detail (including the
date of occurrence of the same). Upon receipt by the Intercreditor Agent of any
Notice of Default, it shall promptly send copies thereof to each of the Facility
Administrative Agents and the Offshore Collateral Agent.
2.4 Notice of Non-Pro Rata Payments. Each Lender shall notify the
Intercreditor Agent (who shall promptly thereafter so notify each Facility
Administrative Agent) of any payment received in respect of the Obligations
which is known to such Lender to be in excess of its Pro Rata Share of such
payment.
5
2.5 Notice of Termination or Reduction of Commitments. The relevant
Facility Administrative Agent shall provide notice to the Intercreditor Agent
and the other Facility Administrative Agent of the exercise by the requisite
Working Capital Facility Lenders or Construction Facility Lenders, as
applicable, of any right to terminate or reduce (other than any reduction
occurring pursuant to the Construction Facility Credit Agreement or Working
Capital Facility Credit Agreement, as applicable, due to the making of any
applicable Loan) their Construction Facility Commitments or Working Capital
Facility Commitments, as applicable, under the applicable Credit Agreement.
2.6 Reports of the Independent Engineer. The Intercreditor Agent shall
provide to each Facility Administrative Agent a copy of each report delivered to
the Intercreditor Agent by the Independent Engineer pursuant to Section 6.02(l)
or any other Section of the Common Agreement, promptly upon receipt of each such
report.
2.7 No Reliance. Notwithstanding any other provisions of this
Agreement, no Secured Party has relied or shall rely on any other Secured Party
(i) to inquire into or verify the accuracy or completeness of any information
provided by the Borrower or any Third Party Participant, or made available by a
Secured Party to other Secured Parties on or prior to the date hereof, or
hereafter pursuant to Section 2.1; or (ii) to review or evaluate the condition
of the Borrower, any Third Party Participant or the Project. Each Secured Party
has made its credit decision, and shall take, or refrain from taking, any future
decision or action, on the basis of its own independent judgment, without
reliance on information provided by or expected from, or on views expressed by,
any other Secured Party or the Borrower. Notwithstanding the foregoing, each
Collateral Agent may rely on specific written instructions from the
Intercreditor Agent or any notice or document received as set forth in the
respective agreements to which they are a party and shall not be liable in any
manner for any action taken in accordance therewith or any inaction in the
absence thereof.
ARTICLE 3 - PAYMENTS; SHARING; APPLICATION
3.1 Payments Received by Intercreditor Agent or any Collateral Agent.
Subject to the provisions of Sections 3.4 and 3.5, all amounts paid to the
Intercreditor Agent or to any Collateral Agent with respect to the Obligations
(whether paid before or after the occurrence or commencement of any Default,
Event of Default or Enforcement Action) shall be paid to the Intercreditor Agent
for redistribution to the applicable Facility Administrative Agent and shall be
applied as provided in Section 6.1 hereof, in the Depositary Agreement or in
Section 3.01 of the Common Agreement, as applicable; provided that nothing in
this Article 3 shall affect or modify the allocation or application of amounts
within any Credit Facility (including any amounts in respect of any Disbursement
LC or Working Capital Facility Collateral) as provided in the relevant Credit
Agreement.
3.2 Payments Received by Any Other Secured Party. Subject to the
provisions of Sections 3.4 and 3.5, if any Secured Party shall obtain any amount
in respect of Obligations relating to its Credit Facility, other than amounts
obtained from or through the Intercreditor Agent, a Facility Administrative
Agent, any Collateral Agent or
6
similar Person pursuant to the Financing Documents, whether: (i) by way of
voluntary or involuntary payment; (ii) by virtue of an exercise of any right of
set-off, banker's lien, or counterclaim; (iii) as proceeds of any insurance
policy covering any properties or assets of the Borrower; (iv) from proceeds of
liquidation or dissolution of the Borrower or distribution of its assets among
its creditors (however such liquidation, dissolution or distribution may occur);
(v) as payment of any Obligations following the acceleration of any Credit
Facility; (vi) as consideration for the agreement of such Secured Party, or as
part of any transaction or series of related transactions in which such Secured
Party shall have agreed to waive or amend any provision of any Credit Agreement;
(vii) from any realization on Collateral; (viii) by virtue of the application of
any provision of any of the Financing Documents (other than this Agreement); or
(ix) in any other manner in respect of any Financing Document, such Secured
Party shall forthwith notify the Intercreditor Agent thereof and shall promptly,
and in any event within ten (10) Business Days of its so obtaining the same, pay
such amount (less any reasonable costs and expenses incurred by such Secured
Party in obtaining such amount) to the Intercreditor Agent for the account of,
and for redistribution to, the Secured Parties, to be applied as provided in
Section 6.1.
3.3 Sharing of Payments within a Credit Facility. Sharing of payments
made with respect to a particular Credit Facility shall be subject to the
sharing provisions of such Credit Facility's Credit Agreement, as such
provisions relate to the sharing of payments among Lenders within such Credit
Facility.
3.4 Amounts Not Subject to Sharing. Notwithstanding any other
provision of this Agreement or any other Financing Document, no Secured Party
shall have any obligation to share: (i) any payment made to a Secured Party
pursuant to any provision of any Financing Document that is in the nature of an
indemnity against or reimbursement for (A) additional funding costs and similar
costs incurred by such Secured Party including payments with respect to
increased reserve provisions, capital adequacy provisions, breakage provisions,
or other similar provisions, (B) costs with respect to taxes incurred or payable
by such Secured Party on principal, interest and other payments payable to it
under the Financing Documents and (C) costs, liabilities, claims and other
expenses incurred by such Secured Party that are the subject of any indemnity or
reimbursement provision contained in the Financing Documents; (ii) any payment
of Fees made in accordance with the terms of the Fee Letters; (iii) the proceeds
or other payments made (or payment rights) under or in respect of any insurance
(whether now owned or in the future acquired) covering any Lender's right, title
or interest in, to or under any Loans or other Obligations, including any
insurance related to any default by any Person under any Transaction Document,
(iv) any Working Capital Facility Collateral (with respect to the Working
Capital Facility Administrative Agent or any Working Capital Facility Lender)
and (v) the proceeds of, or rights to draw or receive amounts under, or in
respect of, any Disbursement LCs.
3.5 Payments under the Sponsor Guarantees. The Offshore Collateral
Agent (acting upon the specific written direction of the applicable Facility
Administrative Agent) shall apply amounts received by it pursuant to the Sponsor
Guarantees to Obligations due and payable in accordance with Section 6.2.
7
3.6 Presumption Regarding Payments. For purposes hereof, any payment
received by a Secured Party pursuant to this Article 3 may be presumed by such
Secured Party to have been properly received by such Secured Party in accordance
with this Article 3 unless such Secured Party receives notice from any other
Secured Party that such payment was not made in accordance herewith. If any such
distributed or shared payment is rescinded or must otherwise be restored by the
Secured Party that first obtained it, each other Secured Party that shares the
benefit of such payment shall return to such Secured Party its portion of the
payment so rescinded or required to be restored.
3.7 No Separate Security. Each Secured Party that is a party hereto
(for itself and any Person claiming through it) (a) agrees that all of the
Collateral pledged under the Security Documents (other than the Working Capital
Facility Collateral, which is solely for the benefit of the Working Capital
Facility Lenders and the Working Capital Facility Administrative Agent) is for
the joint and, subject to Section 6.1, pari passu benefit of all the Secured
Parties as security for the payment and performance of the Obligations and (b)
agrees with the other Secured Parties that it will not, without the prior
consent of the other Secured Parties, take or obtain any Lien on any properties
or assets of the Borrower to secure the Obligations under any Financing Document
and shall not enter into any agreement with the Borrower, the Sponsors or the
Shareholders relating in any manner to the Credit Facilities, except for the
benefit of all Secured Parties or, with respect to the Working Capital Facility
Collateral and any and all Disbursement LCs, for the benefit of the Working
Capital Facility Lenders and the Working Capital Facility Administrative Agent.
The parties hereto acknowledge that the Working Capital Facility Collateral is
pledged to the Offshore Collateral Agent solely for the benefit of the Working
Capital Facility Lenders and the Working Capital Facility Administrative Agent.
ARTICLE 4 - ACTIONS; BINDING EFFECT
4.1 Actions Subject to Common Agreement and Intercreditor Agreement.
The Intercreditor Agent, the Collateral Agents, the Facility Administrative
Agents and the other Secured Parties may not exercise or enforce any right,
power or discretion, give any consent or any waiver, or make any determination
under or in respect of any provisions of the Financing Documents except in
accordance with the Common Agreement, the Depositary Agreement and this
Agreement, as the case may be. Where, in accordance with this Agreement or any
other Financing Document, the consent, approval, waiver or other direction of
any percentage or number of the Secured Parties or the Facility Administrative
Agents is required, the determination of whether such consent, approval, waiver
or direction should be granted or withheld shall be determined by the vote of
the relevant Persons as provided in the Common Agreement and this Agreement. To
the extent that this Agreement expressly provides for a different percentage of
Lender votes to approve taking any step with respect to any Enforcement Action
than the Common Agreement, the terms of this Agreement shall prevail.
Notwithstanding any provision hereof or any Financing Document to the contrary,
the Working Capital Facility Administrative Agent may enforce any right, power
or direction (including directing the Offshore Collateral Agent or other
applicable party hereto to apply amounts received or held in connection
therewith in accordance with its written
8
instructions) in respect of the Working Capital Facility Collateral and any and
all Disbursement LCs without (i) any vote hereunder, (ii) any Enforcement Action
hereunder, (iii) any delivery of any Remedies Initiation Notice or Remedies
Notice hereunder or (iv) being subject to any Standstill Period.
4.2 Binding Effect. Each decision made by the Secured Parties (or any
of them) in accordance with the terms of the Common Agreement and this Agreement
shall be binding upon each of the parties to this Agreement and the other
Secured Parties.
ARTICLE 5 - REMEDIES; ENFORCEMENT ACTION
5.1 Coordination. The Collateral is vested in and held by the relevant
Collateral Agent (and, to the extent described in the Depositary Agreement, the
Offshore Depositary Bank (as defined therein)) as provided in the Security
Documents. The Working Capital Facility Collateral shall be subject to the
security interest created therein in favor of the Offshore Collateral Agent and
be subject to the rights of the Offshore Collateral Agent under the Depositary
Agreement and the other Security Documents; provided that the Offshore
Collateral Agent shall hold such security interest, and exercise any such
rights, solely for the benefit of the Working Capital Facility Lenders and the
Working Capital Facility Administrative Agent as, with respect to the exercise
of such rights, instructed by the Working Capital Facility Administrative Agent
pursuant to the Depositary Agreement. Subject to (i) Sections 4.1 and 5.2.4,
(ii) the rights of the Working Capital Facility Administrative Agent hereunder,
under the Depositary Agreement and under the Working Capital Facility Credit
Agreement in respect of any Working Capital Facility Collateral and (iii) the
right of the Working Capital Facility Administrative Agent to make drawings
under any and all Disbursement LCs from time to time in accordance with their
terms and to take Enforcement Action in respect thereof in accordance with the
terms of the Working Capital Facility Credit Agreement, only the relevant
Collateral Agent (or another Person designated by the Intercreditor Agent) or
the Intercreditor Agent, in each case acting in concert with and upon the
specific written direction of the Intercreditor Agent (except in the case of
action taken directly by the Intercreditor Agent) on instructions from the
Enforcing Required Lenders as provided in this Agreement, may undertake
Enforcement Action.
5.2 Election Following Event of Default.
5.2.1 Notice. At any time after the occurrence of an Event of Default
(other than a Bankruptcy Event of Default) and for so long as such Event of
Default shall be continuing, any Facility Administrative Agent may from time to
time serve a notice (each, a "Remedies Initiation Notice") on the Intercreditor
Agent that describes the Event of Default and instructs the Intercreditor Agent
to seek instructions from the applicable Secured Parties as to whether or not
the Intercreditor Agent shall direct any or both Collateral Agents to exercise
any remedies or engage in any Enforcement Action (other than with respect to any
Working Capital Facility Collateral or any Disbursement LC). Upon receipt of a
Remedies Initiation Notice, the Intercreditor Agent shall promptly notify the
other Lender Representatives of such notice (and provide a copy of such notice
to the Lender Representative seeking the initiation of remedies) and request
that the
9
applicable Secured Parties provide instructions within thirty (30) days
after the date on which the Intercreditor Agent shall have delivered the
Remedies Initiation Notice to the Lender Representatives as to which remedies,
rights and Enforcement Action, if any, the Intercreditor Agent shall exercise
pursuant to this Section 5.2. There may be multiple Remedies Initiation Notices
with respect to the same event.
5.2.2 Voting. During the period (the "Standstill Period") from the
date of delivery of a Remedies Initiation Notice to the date of delivery by the
Intercreditor Agent to each Secured Party of written notice that Enforcing
Required Lenders have agreed to cause the exercise of remedies pursuant to
Section 5.3 (a "Remedies Notice"), no Secured Party shall be entitled to
exercise any remedy or engage in any Enforcement Action (other than the Working
Capital Facility Administrative Agent with respect to any and all Disbursement
LCs and the Working Capital Facility Administrative Agent and the Offshore
Collateral Agent in respect of any Working Capital Facility Collateral as set
forth in the Depositary Agreement and the Working Capital Facility Credit
Agreement, as applicable) in connection with such Event of Default (other than a
Bankruptcy Event of Default), nor shall any such Secured Party direct the
Intercreditor Agent to exercise any remedies or engage in any Enforcement
Action. The Standstill Period shall end and the Remedies Notice shall be
effective upon the agreement of the Enforcing Required Lenders. The
Intercreditor Agent shall deliver a copy of the Remedies Notice to each of the
Secured Parties promptly after determining that the Enforcing Required Lenders
agreed to exercise remedies. The Collateral Agents shall not be responsible for
determining if a Standstill Period is in effect and may conclusively rely on any
instruction from the Intercreditor Agent or the Working Capital Facility
Administrative Agent.
5.2.3 Bankruptcy Event of Default. Notwithstanding any provision to
the contrary in this Agreement or any other Transaction Document, upon the
occurrence of a Bankruptcy Event of Default, (a) all unutilized Construction
Facility Commitments and Working Capital Facility Commitments shall forthwith
terminate immediately and (b) all principal and accrued Debt Service in respect
of the Obligations owed to each Secured Party shall be immediately due and
payable without presentment, demand, protest or notice of any kind whatsoever.
Immediately upon receipt of notice (or otherwise having actual knowledge) of the
occurrence of any Bankruptcy Event of Default (and in accordance with any
Remedies Instruction received pursuant to Section 5.3.1 or, with respect to the
Working Capital Facility Collateral, in accordance with any written instruction
received from the Working Capital Facility Administrative Agent pursuant to the
Depositary Agreement), the Collateral Agents (acting solely at the direction of
the Intercreditor Agent) and the Intercreditor Agent, as applicable, shall
engage in Enforcement Action and exercise all available remedies.
5.2.4 No Limitation. Nothing contained herein shall be construed to
restrict: (a) the right of the Lenders, at any time prior to the end of the
Standstill Period, to elect to waive any Event of Default or agree to any
amendment of the Financing Documents in accordance with Section 10.01 of the
Common Agreement; (b) the right of the Working Capital Facility Administrative
Agent, in respect of any Working Capital Facility Collateral, to exercise (or
instruct the Offshore Collateral Agent to exercise) any or all of the rights and
remedies it has in respect of such Working Capital Facility
10
Collateral pursuant to, and in accordance with, the applicable terms of Section
7.02 of the Common Agreement, the Depositary Agreement and the Working Capital
Facility Credit Agreement; or (c) the rights of the Working Capital Facility
Administrative Agent to make drawings under any and all Disbursement LCs from
time to time in accordance with their terms and to take Enforcement Action in
respect thereof in accordance with the terms of Section 7.02 of the Common
Agreement and the Working Capital Facility Credit Agreement.
5.3 Exercise of Remedies; Enforcement Action.
5.3.1 In the event that (x) the Standstill Period ends and the
Intercreditor Agent delivers a Remedies Notice in accordance with a
determination made pursuant to Section 5.2.2 or (y) a notice is delivered with
respect to a Bankruptcy Event of Default in accordance with Section 5.2.3, then,
subject to Section 5.3.3 and Article VIII of the Common Agreement, each
Collateral Agent or the Intercreditor Agent, as applicable, shall follow the
specific written instructions delivered by the Enforcing Required Lenders or the
Intercreditor Agent, in the case of any Collateral Agent, regarding the exercise
of remedies and/or the commencement of Enforcement Action in respect of any
Collateral (other than the Working Capital Facility Collateral) (each such
instructions, the "Remedies Instruction"). Each Remedies Instruction shall
specify the particular action that the Enforcing Required Lenders propose to
cause the relevant Collateral Agent or the Intercreditor Agent, as applicable,
to take and shall be effective on the date set forth in such notice (the
"Remedies Effective Date"), which shall not be earlier than ten (10) days after
the date of such notice; provided that such ten (10) day period shall not be
required in the case of a Bankruptcy Event of Default. In the event that more
than one group of Lenders constituting Enforcing Required Lenders delivers a
Remedies Instruction prior to the occurrence of a Remedies Effective Date, then
the Remedies Instruction from the group representing the greatest Lender
Percentage shall govern; provided that, notwithstanding anything to the
contrary, upon delivery of a Remedies Instruction from a group constituting
Enforcing Required Lenders that provides for the instigation of foreclosure
proceedings, no other group constituting Enforcing Required Lenders may rescind
such instigation of foreclosure proceedings. The Offshore Collateral Agent shall
follow any written instructions delivered to it by the Working Capital Facility
Agent pursuant to the Depositary Agreement regarding the exercise of remedies
and/or the commencement of Enforcement Actions in respect of the Working Capital
Facility Collateral.
5.3.2 Notwithstanding anything to the contrary contained in this
Agreement, (i) the Intercreditor Agent shall not, and shall not instruct any
Collateral Agent to, commence or otherwise take any Enforcement Action in
respect of any Collateral (other than any Working Capital Facility Collateral)
unless and until the Intercreditor Agent has received a Remedies Instruction
from the Enforcing Required Lenders, (ii) any Enforcement Action in respect of
any Working Capital Facility Collateral shall only be taken by the Offshore
Collateral Agent to the extent so instructed in writing by the Working Capital
Facility Administrative Agent pursuant to the Depositary Agreement and (iii) the
Working Capital Facility Administrative Agent shall
11
have the sole right to make drawings under any and all Disbursement LCs and to
take Enforcement Action in respect thereof.
5.3.3 At the direction of the Enforcing Required Lenders pursuant to a
Remedies Instruction, the Intercreditor Agent shall promptly (a) instruct in
writing the relevant Collateral Agent to seek to enforce the Security Documents
and to realize upon the Collateral (other than any Working Capital Facility
Collateral) or (b) in the case of any Bankruptcy Proceeding against the
Borrower, seek to enforce the claims of the Secured Parties thereunder (other
than in respect of the Working Capital Facility Collateral unless so instructed
in writing by the Working Capital Facility Administrative Agent); provided,
however, that the Intercreditor Agent and the Collateral Agents shall not be
obligated to follow any Remedies Instruction to the extent that the
Intercreditor Agent or the relevant Collateral Agent has not received an
indemnity reasonably acceptable to it or has received a written opinion of its
counsel to the effect that such Remedies Instruction is in conflict with any
provisions of any applicable Requirement of Law, this Agreement or any other
Financing Document or any order of any court or administrative agency, and
neither the Collateral Agents nor the Intercreditor Agent shall, under any
circumstances, be liable to any Secured Party or any other Person for following
the written directions of the Enforcing Required Lenders or the Intercreditor
Agent (in the case of the Collateral Agents) in respect of any Collateral (other
than the Working Capital Facility Collateral) or the Working Capital Facility
Administrative Agent in respect of the Working Capital Facility Collateral; and
provided, further, nothing contained herein shall affect the obligations of any
Collateral Agent pursuant to the relevant Security Documents or the Sponsor
Guarantees.
5.3.4 In the event that a Remedies Instruction expressly directs the
termination of commitments to lend under a Credit Agreement and/or acceleration
of the Obligations, then the Intercreditor Agent shall deliver to each Facility
Agent within two (2) Business Days a written notice to that effect (the
"Acceleration Notice") in order to permit the Secured Parties to coordinate the
timing of the acceleration of their respective Obligations. Unless otherwise
provided in such Remedies Instruction, each Secured Party shall be entitled to
terminate its commitments to lend and/or accelerate its Obligations at any time
after the second Business Day following receipt of the Acceleration Notice;
provided, however, that this Section 5.3.4 shall not be construed to limit any
rights of any Secured Party set forth in Section 5.2.3.
5.3.5 Notwithstanding any provision in any Financing Document to the
contrary, during such time as any Default or Event of Default of which a
Responsible Officer of the related Collateral Agent shall have actual knowledge
shall have occurred and be continuing, the terms of this Agreement shall govern,
and such Collateral Agent shall take any Enforcement Action without the express
written direction of the Intercreditor Agent (acting in accordance with this
Agreement) or, with respect to any Working Capital Facility Collateral, the
express written instructions of the Working Capital Facility Administrative
Agent provided pursuant to the Depositary Agreement or the Working Capital
Facility Credit Agreement.
12
5.4 Cooperation. After a Remedies Instruction has been delivered by
the Enforcing Required Lenders, the Secured Parties shall, except as otherwise
provided herein, at all times act together and do all such acts and things as
may be necessary or desirable to ensure that the Enforcement Action in the
Remedies Instruction occurs in an orderly and effective manner for the ratable
benefit of the Secured Parties; provided, however, the Collateral Agents shall
only be required to act at the specific direction of the Intercreditor Agent or
the Working Capital Facility Administrative Agent, as the case may be.
ARTICLE 6 - APPLICATION OF PROCEEDS
6.1 General Application. Subject to Sections 3.4, 3.5 and 6.2, if the
Intercreditor Agent shall have taken any Enforcement Action in accordance with
the terms hereof, the proceeds of all Collateral (other than the Working Capital
Facility Collateral) realized by the Intercreditor Agent, the Collateral Agents
or any Secured Party in connection therewith, shall be distributed by the
Intercreditor Agent in the following order of priority:
First, to the Working Capital Facility Administrative Agent, the
Construction Facility Administrative Agent, the Offshore Collateral Agent, the
Onshore Collateral Agent, the Intercreditor Agent and the Offshore Depositary
Bank, ratably, in an amount equal to the Working Capital Facility Administrative
Agent Claims, the Construction Facility Administrative Agent Claims, the
Offshore Collateral Agent Claims, the Onshore Collateral Agent Claims, the
Intercreditor Agent Claims, and the Depositary Bank Claims, respectively, due
and payable as of the date of such distribution; provided, that prior to any
such distribution, the Intercreditor Agent shall have received a certificate
signed by such Lender Representative, setting forth the amount due and payable
to such Lender Representative as of the date of such distribution;
Second, to the Construction Facility Lenders in an amount equal to all Fees
and all interest, Non-Excluded Taxes and Other Taxes on or with respect to the
Construction Loans due and payable as of the date of such distribution and to
the Construction Facility Lenders in an amount equal to the amount, if any, due
and payable pursuant to Section 3.04 of the Common Agreement as of the date of
such distribution; provided, that prior to any such distribution, the
Intercreditor Agent shall have received certificates signed by or on behalf of
such Lenders, in the case of Fees, interest, Non-Excluded Taxes and Other Taxes
due on or with respect to the Construction Loans or any amount due pursuant to
Section 3.04 of the Common Agreement setting forth the amount due and payable to
such Construction Facility Lender as of the date of such distribution; and in
case such proceeds shall be insufficient to pay in full all such Construction
Facility Obligations, then to the payment thereof to each Construction Facility
Lender on a pro rata basis in proportion to its percentage of the sum of the
aggregate amount of all such Construction Facility Obligations;
Third, to the Construction Facility Lenders in an amount equal to all
principal on the Construction Loans due and payable as of the date of such
distribution; provided, that prior to any such distribution, the Intercreditor
Agent shall have received certificates
13
signed by such Construction Facility Lenders setting forth the amount due and
payable to such Construction Facility Lender as of the date of such
distribution; and in case such proceeds shall be insufficient to pay in full all
such principal, then to the payment thereof to each Construction Facility Lender
on a pro rata basis in proportion to its percentage of the sum of the aggregate
amount of all such principal;
Fourth, to the Construction Facility Lenders in an amount equal to all
other Construction Facility Obligations (which amount shall not include any
amounts payable pursuant to clauses First through Third, above) due and payable
as of the date of such distribution; provided, that prior to any such
distribution, the Intercreditor Agent shall have received a certificate of such
Construction Facility Lender, setting forth such amounts due and payable to such
Construction Facility Lender as of the date of such distribution; and in case
such proceeds shall be insufficient to pay in full all such Construction
Facility Obligations, then to the payment thereof to such Construction Facility
Lender, ratably, in proportion to its percentage of the sum of the aggregate
amount of all such Construction Facility Obligations;
Fifth, to the Working Capital Facility Lenders in an amount equal to all
Fees and all interest, Non-Excluded Taxes and Other Taxes on or with respect to
the Working Capital Loans due and payable as of the date of such distribution
and to the Working Capital Facility Lenders in an amount equal to the amount, if
any, due and payable pursuant to Section 3.04 of the Common Agreement as of the
date of such distribution; provided, that prior to any such distribution, the
Intercreditor Agent shall have received certificates signed by or on behalf of
such Working Capital Facility Lenders, in the case of Fees, interest,
Non-Excluded Taxes and Other Taxes due on or with respect to the Working Capital
Loans or any amount due pursuant to Section 3.04 of the Common Agreement setting
forth the amount due and payable to such Working Capital Facility Lender as of
the date of such distribution; and in case such proceeds shall be insufficient
to pay in full all such Working Capital Facility Obligations, then to the
payment thereof to such Working Capital Facility Lender on a pro rata basis in
proportion to its percentage of the sum of the aggregate amount of all such
Working Capital Facility Obligations;
Sixth, to the Working Capital Facility Lenders in an amount equal to all
principal on the Working Capital Loans due and payable as of the date of such
distribution; provided, that prior to any such distribution, the Intercreditor
Agent shall have received certificates signed by such Working Capital Facility
Lenders setting forth the amount due and payable to such Working Capital
Facility Lender as of the date of such distribution; and in case such proceeds
shall be insufficient to pay in full all such principal, then to the payment
thereof to such Working Capital Facility Lender on a pro rata basis in
proportion to its percentage of the sum of the aggregate amount of all such
principal;
Seventh, to the Secured Parties in an amount equal to all other Obligations
(which amount shall not include any amounts payable pursuant to clauses First
through Sixth, above) due and payable as of the date of such distribution;
provided, that prior to any such distribution, the Intercreditor Agent shall
have received a certificate of such Secured Party, setting forth such amounts
due and payable to such Secured Party as of the date of
14
such distribution; and in case such proceeds shall be insufficient to pay in
full all such Obligations, then to the payment thereof to such Secured Party,
ratably, in proportion to its percentage of the sum of the aggregate amount of
all such Obligations; and
Eighth, to the extent of any surplus, to the Borrower or in accordance with
any applicable Law;
it being understood that the Borrower shall remain liable to the extent of any
deficiency between the amount of such proceeds and the aggregate of the sums
referred to in clauses First through Seventh of this Section 6.1.
6.2 Sponsor Guarantees. If any amounts are due under the Sponsor
Guarantees to pay Obligations due and payable and amounts paid under such
Sponsor Guarantees are not adequate to pay all of such Obligations, then all
amounts paid by any Sponsor under any Sponsor Guarantee shall be distributed in
whole or in part by the Offshore Collateral Agent in the following order of
priority based upon written instructions furnished to the Offshore Collateral
Agent by the Intercreditor Agent:
First, to the Working Capital Facility Administrative Agent, the
Construction Facility Administrative Agent, the Offshore Collateral Agent, the
Onshore Collateral Agent, the Intercreditor Agent and the Offshore Depositary
Bank, ratably, in an amount equal to the Working Capital Facility Administrative
Agent Claims, the Construction Facility Administrative Agent Claims, the
Offshore Collateral Agent Claims, the Onshore Collateral Agent Claims, the
Intercreditor Agent Claims, and the Depositary Bank Claims, respectively, due
and payable as of the date of such distribution; provided, that prior to any
such distribution, the Offshore Collateral Agent shall have received a
certificate signed by such Lender Representative, setting forth the amount due
and payable to such Lender Representative as of the date of such distribution;
Second, to the Lenders in an amount equal to all Fees and all interest,
Non-Excluded Taxes and Other Taxes on or with respect to the Loans due and
payable as of the date of such distribution and to the Lenders in an amount
equal to the amount, if any, due and payable pursuant to Section 3.04 of the
Common Agreement as of the date of such distribution; provided, that prior to
any such distribution, the Offshore Collateral Agent shall have received
certificates signed by or on behalf of such Lenders, in the case of Fees,
interest, Non-Excluded Taxes and Other Taxes due on or with respect to the Loans
or any amount due pursuant to Section 3.04 of the Common Agreement setting forth
the amount due and payable to such Lender as of the date of such distribution;
and in case such proceeds shall be insufficient to pay in full all such
Obligations, then to the payment thereof to each Lender on a pro rata basis in
proportion to its percentage of the sum of the aggregate amount of all such
Obligations;
Third, to the Lenders in an amount equal to all principal on the Loans due
and payable as of the date of such distribution; provided, that prior to any
such distribution, the Offshore Collateral Agent shall have received
certificates signed by such Lenders setting forth the amount due and payable to
such Lender as of the date of such distribution; and in case such proceeds shall
be insufficient to pay in full all such
15
principal, then to the payment thereof to each Lender on a pro rata basis in
proportion to its percentage of the sum of the aggregate amount of all such
principal; and
Fourth, to the Secured Parties in an amount equal to all other Obligations
(which amount shall not include any amounts payable pursuant to clauses First
through Third, above) due and payable as of the date of such distribution;
provided, that prior to any such distribution, the Offshore Collateral Agent
shall have received a certificate of each such Secured Party, setting forth such
amounts due and payable to such Secured Party as of the date of such
distribution; and in case such proceeds shall be insufficient to pay in full all
such Obligations, then to the payment thereof to each Secured Party, ratably, in
proportion to its percentage of the sum of the aggregate amount of all such
Obligations;
it being understood that the Borrower and the Sponsors shall remain liable to
the extent of any deficiency between such amounts paid and the aggregate of the
sums referred to in clauses First through Fourth of this Section 6.2.
6.3 Working Capital Facility Collateral and Disbursement LCs. If any
Event of Default shall have occurred and the Working Capital Facility
Obligations shall have become due and payable pursuant to the Working Capital
Facility Credit Agreement, then all amounts received by the Working Capital
Facility Administrative Agent with respect to the Working Capital Facility
Collateral shall be distributed in whole or in part by the Working Capital
Facility Administrative Agent in the following order of priority:
First, to the Working Capital Facility Administrative Agent and the
Intercreditor Agent, ratably, in an amount equal to the Working Capital Facility
Administrative Agent Claims and the Intercreditor Agent Claims, respectively,
due and payable as of the date of such distribution; provided, that prior to any
such distribution, the Working Capital Facility Administrative Agent shall have
received a certificate signed by such Lender Representative, setting forth the
amount due and payable to such Lender Representative as of the date of such
distribution;
Second, to the Working Capital Facility Lenders in an amount equal to all
Fees and all interest, Non-Excluded Taxes and Other Taxes on or with respect to
the Working Capital Loans due and payable as of the date of such distribution
and to the Working Capital Facility Lenders in an amount equal to the amount, if
any, due and payable pursuant to Section 3.04 of the Common Agreement as of the
date of such distribution; provided, that prior to any such distribution, the
Working Capital Facility Administrative Agent shall have received certificates
signed by or on behalf of such Working Capital Facility Lenders, in the case of
Fees, interest, Non-Excluded Taxes and Other Taxes due on or with respect to the
Working Capital Loans or any amount due pursuant to Section 3.04 of the Common
Agreement, setting forth the amount due and payable to such Working Capital
Facility Lender as of the date of such distribution; and in case such proceeds
shall be insufficient to pay in full all such Working Capital Facility
Obligations, then to the payment thereof to each Working Capital Facility Lender
on a pro rata basis in proportion to its percentage of the sum of the aggregate
amount of all such Working Capital Facility Obligations;
16
Third, to the Working Capital Facility Lenders in an amount equal to all
principal on the Working Capital Loans due and payable as of the date of such
distribution; provided, that prior to any such distribution, the Working Capital
Facility Administrative Agent shall have received certificates signed by such
Working Capital Facility Lenders setting forth the amount due and payable to
such Working Capital Facility Lender as of the date of such distribution; and in
case such proceeds shall be insufficient to pay in full all such principal, then
to the payment thereof to each Working Capital Facility Lender on a pro rata
basis in proportion to its percentage of the sum of the aggregate amount of all
such principal;
Fourth, to the Working Capital Facility Lenders in an amount equal to all
other Working Capital Facility Obligations (which amount shall not include any
amounts payable pursuant to clauses First through Third, above) due and payable
as of the date of such distribution; provided, that prior to any such
distribution, the Working Capital Facility Administrative Agent shall have
received a certificate of such Working Capital Facility Lender, setting forth
such amounts due and payable to such Working Capital Facility Lender as of the
date of such distribution; and in case such proceeds shall be insufficient to
pay in full all such Working Capital Facility Obligations, then to the payment
thereof to such Working Capital Facility Lender, ratably, in proportion to its
percentage of the sum of the aggregate amount of all such Working Capital
Facility Obligations;
it being understood that the Borrower shall remain liable to the extent of any
deficiency between the amount of such proceeds and the aggregate of the sums
referred to in clauses First through Fourth of this Section 6.3.
6.4 Order of Certain Actions. Notwithstanding anything set forth in
this Article 6 the contrary, unless otherwise agreed in writing by the
Construction Facility Majority Lenders, prior to the application or distribution
of the proceeds and payments pursuant to Sections 6.1 and 6.2, promptly upon
receiving an Acceleration Notice from the Intercreditor Agent, (i) the Offshore
Collateral Agent shall direct the Offshore Depositary Bank to liquidate and
withdraw (and the Offshore Depositary Bank shall liquidate and withdraw) from
all available Working Capital Facility Collateral (whether in the form of any
demand deposit, Permitted Investment or otherwise) and transfer such amounts to
the Working Capital Facility Administrative Agent and (ii) the Working Capital
Facility Administrative Agent shall deliver a withdrawal certificate to the full
extent then permitted in the full amount available to then be drawn under all
Disbursement LCs to each Disbursement LC Provider. All amounts so received by
the Working Capital Facility Administrative Agent shall be applied in respect of
all Working Capital Facility Obligations due and payable as of the date of such
transfer to the Working Capital Facility Administrative Agent in accordance with
the terms of Section 6.3 and promptly upon receipt of such amounts, the Working
Capital Facility Administrative Agent shall deliver a certificate to the
Intercreditor Agent setting forth, in reasonable detail, the application of all
amounts so received. All such amounts received by the Working Capital Facility
Administrative Agent for its own benefit and by each Working Capital Facility
Lender shall operate so as to reduce the amounts due and payable to such Person
in calculating any amounts to be distributed pursuant to Sections
17
6.1 and 6.2. Nothing in this Section 6.4 shall limit the Working Capital
Facility Administrative Agent's ability to access the Disbursement LCs and any
Working Capital Facility Collateral in the manner contemplated in the Working
Capital Facility Credit Agreement and the other Financing Documents.
ARTICLE 7 - AMENDMENTS; WAIVERS
7.1 Amendments to This Agreement. The parties hereto shall not,
without the written consent of each of the Facility Administrative Agents (which
consents shall be subject to a vote by the applicable Lenders in favor of that
consent pursuant to the applicable voting provisions set forth in the applicable
Credit Agreement, if any, and the Common Agreement (including Section 10.01
thereof)) amend, modify, supplement or waive any provision of this Agreement.
7.2 Amendments to, Waivers Under, and Instructions with Respect to the
Other Financing Documents. Notwithstanding anything in this Agreement to the
contrary, no waiver, amendment, modification or consent shall be given to, and
no instruction in relation to any of the foregoing shall be given to, the
Intercreditor Agent under the Financing Documents except in accordance with
Section 10.01 of the Common Agreement and this Agreement, as the case may be.
7.3 Effect of Amendment on Intercreditor Agent and Collateral Agents.
No party hereto shall amend any provision of any Financing Document to which the
Intercreditor Agent or any Collateral Agent is a party that adversely affects
the Intercreditor Agent or any Collateral Agent without the written consent of
the Intercreditor Agent or such Collateral Agent, as the case may be.
ARTICLE 8 - MISCELLANEOUS
8.1 Addresses.
8.1.1 Any communications between the parties hereto or notices
provided herein to be given may be given to the parties' respective addresses
provided in the Common Agreement.
8.1.2 All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be considered as properly given
and shall be or be deemed delivered as provided in Section 10.02 of the Common
Agreement.
8.2 Entire Agreement. This Agreement and any agreement, document or
instrument attached hereto or referred to herein integrate all the terms and
conditions mentioned herein or incidental hereto and supersede all oral
negotiations and prior writings in respect to the subject matter hereof. In the
event of any conflict between the terms, conditions and provisions of this
Agreement and any such agreement, document or instrument, the terms, conditions
and provisions of this Agreement shall prevail.
8.3 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE
18
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
8.4 Submission to Jurisdiction. Each party hereto hereby irrevocably
and unconditionally (i) submits for itself and its property in any legal action
or proceeding relating to this Agreement, or for recognition and enforcement of
any judgment in respect thereof, to the jurisdiction of any State or Federal
court located in the Borough of Manhattan, and any appellate court having
jurisdiction over appeals from any of such courts, and (ii) consents that any
such action or proceeding may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same.
8.5 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.6 Severability. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality, and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby, and the parties hereto shall enter
into good faith negotiations to replace the invalid, illegal or unenforceable
provision.
8.7 Headings. The headings in this Agreement are for convenience of
reference only and it is agreed that such headings are not a part of this
Agreement and shall not be used in the interpretation of any provision of this
Agreement.
8.8 Successors and Assigns.
8.8.1 The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
8.8.2 The provisions of this Agreement shall be binding upon any
assignee, participant, transferee or other holder from time to time of any
Obligations under any Credit Facility.
8.9 Counterparts. This Agreement may be executed in one or more
duplicate counterparts and when signed by all of the parties listed below shall
constitute a single binding agreement.
8.10 No Partnership. Nothing contained in this Agreement and no action
by any Secured Party is intended to constitute or shall be deemed to constitute
such Secured Parties (or any of them) a partnership, association, joint venture
or other entity.
8.11 Third-Party Beneficiaries. This Agreement is for the benefit of
the parties hereto and their respective successors and assigns, and nothing
herein shall give
19
the Borrower, any Third Party Participant, any Affiliate of any thereof in such
capacity, or any other Person any benefit or any legal or equitable right or
remedy under this Agreement.
8.12 Obligations of Borrower Unaffected. The Obligations of the
Borrower and the Guarantors under the Financing Documents are absolute and shall
be unaffected by this Agreement.
8.13 Regarding the Collateral Agents and the Intercreditor Agent. In
furtherance of, and notwithstanding any other provisions of, this Agreement, in
connection with their respective obligations hereunder, the Collateral Agents
and the Intercreditor Agent have all of the rights, powers, privileges,
exculpations, protections and indemnities as are provided for or referred to in
the Common Agreement.
20
IN WITNESS WHEREOF, the parties have caused Intercreditor Agreement to
be duly executed by their duly authorized officers as of the day and year first
above written.
WESTLB AG, NEW YORK BRANCH,
as Working Capital Facility
Administrative Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Intercreditor Agreement]
CITIBANK, N.A.,
as Offshore Collateral Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Intercreditor Agreement]
BANCO NACIONAL DE MEXICO, S.A.,
INTEGRANTE DEL GRUPO
FINANCIERO BANAMEX,
as Onshore Collateral Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Intercreditor Agreement]
WESTLB AG, NEW YORK BRANCH,
as Construction Facility Administrative
Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Intercreditor Agreement]
WESTLB AG, NEW YORK BRANCH,
as Intercreditor Agent for and on behalf
of each of the Secured Parties
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Intercreditor Agreement]
EXHIBIT C TO COMMON
AGREEMENT
[LETTERHEAD OF BORROWER]
WAIVER LETTER
Dated ________ __, 2007
[INSERT NAME OF ISSUING BANK]
[ADDRESS OF ISSUING BANK]
WestLB AG, New York Branch,
as Intercreditor Agent under the Common Agreement described below
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We refer to the Letter of Credit, No. ________ (the "Performance
Guarantee"), issued by Banco Santander S.A., Institucion de Banca Multiple,
Grupo Financiero Santander (the "Issuing Bank") in favor of Comision Federal de
Electricidad and for the account of __________________(6) (the "Account Party").
The undersigned, Constructora de Proyectos Hidroelectricos, S.A. de
C.V., a Mexican sociedad anonima de capital variable (together with its
successors and assigns, the "Borrower"), which is an affiliate of the Account
Party, has entered into (i) a Common Agreement, dated as of October 19, 2007 (as
amended, supplemented or otherwise modified from time to time, the "Common
Agreement") among the Borrower, WestLB AG, New York Branch, as Intercreditor
Agent, as Working Capital Facility Administrative Agent and as Construction
Facility Administrative Agent (in its role as Intercreditor Agent, the
"Intercreditor Agent"), the Working Capital Facility Lenders from time to time
party thereto, the Construction Facility Lenders from time to time party
thereto, Citibank, N.A., as Offshore Collateral Agent, Banco Nacional de Mexico,
S.A., Integrante del Grupo Financiero Banamex, as Onshore Collateral Agent and
(ii) certain other agreements, in each case for the purpose of obtaining the
financing necessary for the construction and the development of a hydroelectric
generation plant and related works and facilities in Mexico.
----------
(6) Insert name of account party, which must not be the Borrower.
In connection with such financing, it is a requirement that the
undersigned obtain from the Issuing Bank a waiver of any and all rights and
claims against the Borrower and any of its assets in connection with the
[___________________](7) and the Performance Guarantee or arising by operation
of law or otherwise in connection therewith (including without limitation
pursuant to any applicable principles of subrogation and any and all rights of
the Issuing Bank pursuant to Sections 5-108(i)(1) and 5-117 of the Uniform
Commercial Code of the State of New York and Rule 8.01 or 8.02 of the ISP98
until such time as the Intercreditor Agent has notified the Issuing Bank in
writing that all of the Borrower's obligations pursuant to the Financing
Documents (as defined in the Common Agreement) have been irrevocably and
indefeasibly paid and satisfied in full and all commitments under such Financing
Documents have terminated. We hereby request that, notwithstanding anything to
the contrary in the Performance Guarantee, you waive any and all such rights by
signing below in order to permit us to comply with our undertakings in
connection with the transaction described above.
This Waiver Letter ("Waiver Letter") shall become effective as of the
date first above written upon the Issuing Bank's countersigning this Waiver
Letter. This Waiver Letter shall survive any expiration of the Performance
Guarantee.
The execution, delivery and effectiveness of this Waiver Letter shall
not operate as a waiver of any right, power or remedy of the Issuing Bank
against the Account Party under any relevant reimbursement agreement.
If you agree, without any restrictions, to the statements, terms and
provisions of this Waiver Letter (including without limitation the waiver
requested herein), please evidence such agreement by executing and returning to
us three counterparts of this Waiver Letter. By signing this Waiver Letter, the
Issuing Bank also acknowledges that the Issuing Bank and the Account Party have
entered into one or more agreements concerning the reimbursement of the Issuing
Bank for amounts drawn under the Performance Guarantee and that such
agreement[s] [is][are] in full force and effect. This Waiver Letter shall be
executed by one of your duly authorized representatives possessing all necessary
power and authority to execute this Waiver Letter on behalf of the Issuing Bank.
This Waiver Letter may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Waiver Letter by telecopier shall be effective as
delivery of a manually executed counterpart of this Waiver Letter.
(remainder of page intentionally left blank)
----------
(7) Insert description of relevant document(s) which governs the reimbursement
obligations of the account party to the Issuing Bank.
This Waiver Letter shall be governed by, and construed in accordance
with, the laws of the State of New York and shall be binding upon the respective
successors and assigns of each of the parties hereto.
Very truly yours,
CONSTRUCTORA DE PROYECTOS
HIDROELECTRICOS, S.A. DE C.V.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Agreed, without restriction, as of the date first above written:
BANCO SANTANDER S.A.,
INSTITUCION DE BANCA MULTIPLE,
GRUPO FINANCIERO SANTANDER
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Empowered by means of: ______________________.
Accepted and agreed,
as of the date first above written:
WESTLB AG, NEW YORK BRANCH,
as Intercreditor Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
