Exhibit 4.8
EXECUTION COPY
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U.S.$910,000,000
CONSTRUCTION FACILITY CREDIT AGREEMENT
among
CONSTRUCTORA DE PROYECTOS HIDROELECTRICOS, S.A. DE C.V.,
as Borrower,
THE SEVERAL CONSTRUCTION FACILITY LENDERS FROM TIME TO TIME PARTIES
HERETO,
and
WESTLB AG, NEW YORK BRANCH,
as Construction Facility Administrative Agent
Dated as of October 19, 2007
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS
Section 1.1 Defined Terms ............................................. 1
Section 1.2 Other Definitional Provisions ............................. 3
Section 1.3 Rules of Construction ..................................... 3
ARTICLE 2
AMOUNT AND TERMS OF COMMITMENTS
Section 2.1 Construction Facility Commitments ......................... 4
Section 2.2 Procedure for Construction Facility Borrowings ............ 4
Section 2.3 Repayment of Construction Loans ........................... 5
Section 2.4 Optional Prepayments ...................................... 5
Section 2.5 Conversion and Continuation Options ....................... 6
Section 2.6 Interest Rates and Payment Dates .......................... 6
Section 2.7 Computation of Interest and Fees .......................... 7
Section 2.8 Inability to Determine Interest Rate ...................... 7
Section 2.9 Pro Rata Treatment and Payments ........................... 8
Section 2.10 Fees. ..................................................... 9
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Borrower ............ 10
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to the Construction Facility Closing
Date and the Initial Construction Facility Borrowing ... 10
Section 4.2 Conditions Precedent to Each Construction Facility
Borrowing .............................................. 10
ARTICLE 5
AFFIRMATIVE COVENANTS
Section 5.1 Affirmative Covenants of the Borrower ..................... 10
ARTICLE 6
NEGATIVE COVENANTS
Section 6.1 Negative Covenants of the Borrower ........................ 11
ARTICLE 7
REPORTING OBLIGATIONS
Section 7.1 Reporting Obligations of the Borrower ..................... 11
ARTICLE 8
EVENTS OF DEFAULT
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Section 8.1 Events of Default; Remedies. .............................. 11
ARTICLE 9
THE CONSTRUCTION FACILITY ADMINISTRATIVE AGENT
Section 9.1 Appointment ............................................... 12
Section 9.2 Delegation of Duties ...................................... 12
Section 9.3 Exculpatory Provisions .................................... 12
Section 9.4 Reliance by Construction Facility Administrative Agent .... 13
Section 9.5 Notice of Default ......................................... 13
Section 9.6 Non-Reliance on Construction Facility Administrative Agent
and Other Construction Facility Lenders ................ 13
Section 9.7 Indemnification ........................................... 14
Section 9.8 Agent in Its Individual Capacity .......................... 15
Section 9.9 Successor Construction Facility Administrative Agent ...... 15
ARTICLE 10
MISCELLANEOUS
Section 10.1 Incorporation of Miscellaneous Provisions by Reference .... 15
Section 10.2 Amendments and Waivers .................................... 16
Section 10.3 Notices ................................................... 16
Section 10.4 Survival of Representations and Warranties ................ 16
Section 10.5 Successors and Assigns; Participations and Assignments .... 16
Section 10.6 Adjustments; Set off ...................................... 20
Section 10.7 Counterparts .............................................. 20
Section 10.8 Severability .............................................. 20
Section 10.9 Integration ............................................... 21
Section 10.10 GOVERNING LAW, SUBMISSION TO JURISDICTION, ETC. ........... 21
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SCHEDULES:
1 Commitments
EXHIBITS:
A Form of Assignment and Assumption
B Form of Interest Rate Notice
C Form of Construction Facility Notice of Borrowing
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CONSTRUCTION FACILITY CREDIT AGREEMENT (this "Agreement"), dated as of
October 19, 2007, among CONSTRUCTORA DE PROYECTOS HIDROELECTRICOS, S.A. DE C.V.,
a sociedad anonima de capital variable organized under the laws of Mexico (the
"Borrower"), the several banks and other financial institutions or entities from
time to time parties to this Agreement (the "Construction Facility Lenders"),
and WESTLB AG, NEW YORK BRANCH, as construction facility administrative agent
(the "Construction Facility Administrative Agent").
The parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.:
"Agreement": as defined in the preamble hereto.
"Applicable Margin": means, on any date of determination, for an ABR Loan:
0.75% per annum, or for a Eurodollar Loan: 0.50% per annum.
"Approved Fund": as defined in Section 10.5(b).
"Assignee": as defined in Section 10.5(b).
"Assignment": an Assignment and Assumption, substantially in the form of
Exhibit A.
"Availability Period": with respect to the Construction Loans, the period
from the Signing Date until the earliest of (i) the date that is one hundred
twenty (120) days after the Signing Date in the event that the initial
Construction Facility Borrowing shall not have occurred by such date, (ii) full
utilization of the amounts available under the aggregate Construction Facility
Commitments, and (iii) the Loan Maturity Date.
"Benefitted Lender": as defined in Section 10.6(a).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a date on
which the Borrower requests the Construction Facility Lenders to make
Construction Loans hereunder.
"Construction Facility Administrative Decision": means (i) the
determination of Eurodollar Base Rate and ABR from time to time and (ii) any of
the other routine and administrative decisions, actions, authorizations,
directions, approvals, determinations, waivers and consents that (a) do not
relate to a Default or Event of Default (except to the limited extent set forth
in the proviso in Section 9.5) and could not reasonably be expected to result in
a Default or Event of Default, (b) could not have a Material Adverse Effect on
the interests of any Secured Party and (c) do not constitute Fundamental
Decisions or require the instruction or direction of the Construction Facility
Administrative Agent by any Construction Facility Lender or
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Construction Facility Lenders or their approval or consent pursuant to the
Common Agreement, the Intercreditor Agreement or the Construction Facility
Credit Agreement.
"Construction Facility Commitment": as to any Construction Facility Lender,
the obligation of such Construction Facility Lender to make a Construction Loan
to the Borrower in a principal amount not to exceed the amount set forth under
the heading "Commitment" opposite such Construction Facility Lender's name on
Schedule 1 or in the Assignment pursuant to which such Construction Facility
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original aggregate amount of the Construction
Facility Commitments is nine hundred ten million Dollars ($910,000,000).
"Construction Facility Lenders": as defined in the preamble hereto;
provided, that unless the context otherwise requires, each reference herein to
the Construction Facility Lenders shall be deemed to include any Conduit Lender.
"Construction Facility Notice of Borrowing" means the notice, in
substantially the form of Exhibit C hereto, duly executed and delivered by the
Borrower's Financial Representative to the Construction Facility Administrative
Agent and the Independent Engineer pursuant to Section 4.04(a) of the Common
Agreement and Section 2.2(b) of this Agreement in connection with each
Construction Facility Borrowing. Each Construction Facility Notice of Borrowing
shall specify the amount of the requested Construction Facility Borrowing.
"Construction Facility Percentage": in respect of any Construction Facility
Lender, the percentage set forth next to such Lender's name under the column
entitled "Percentage" on Schedule 1 (as reduced or increased by later
Assignments) or in the Assignment pursuant to which such Lender became a
Construction Facility Lender.
"Construction Loan": any loan made by any Construction Facility Lender
pursuant to this Agreement.
"Funding Office": the office of the Construction Facility Administrative
Agent set forth on its signature page to the Common Agreement or such other
office as may be specified from time to time by the Construction Facility
Administrative Agent as its funding office by written notice to the Borrower and
the Construction Facility Lenders.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
calendar month to occur while such ABR Loan is outstanding and the final
maturity date of such ABR Loan, (b) as to any Eurodollar Loan having an Interest
Period of one month, the last day of such Interest Period and (c) as to any
Construction Loan, the date of any repayment or prepayment made in respect
thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one month thereafter, as set forth by the
Borrower in its Construction Facility Notice of Borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one month thereafter, as set forth
by the Borrower by irrevocable notice to the Construction Facility
Administrative Agent not later than 11:00
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A.M., New York City time, on the date that is three Business Days prior to the
last day of the then current Interest Period with respect thereto; provided
that, all of the foregoing provisions relating to Interest Periods are subject
to the following:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period that would extend
beyond the date final payment is due on the Construction Loans;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to require a
payment or prepayment of any Eurodollar Loan during an Interest Period for
such Eurodollar Loan.
"Interest Rate Notice": as defined in Section 2.2(c).
"Monthly Payment Date": the earlier of (i) the date of any Construction
Facility Borrowing in each calendar month and (ii), if no Construction Facility
Borrowing has occurred in a calendar month, the last Business Day of such
calendar month.
"Participant": as defined in Section 10.5(c).
"Register": as defined in Section 10.5(b).
"United States": the United States of America.
Section 1.2 Other Definitional Provisions. (a) All capitalized terms used
and not defined herein shall have the respective meanings assigned thereto in
the Common Agreement.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
Section 1.3 Rules of Construction. The rules of construction set forth in
Section 1.03 of the Common Agreement shall apply as if it were fully set out
herein; provided, that, the words "hereof," "herein," and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
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ARTICLE 2
AMOUNT AND TERMS OF COMMITMENTS
Section 2.1 Construction Facility Commitments. (a) Subject to the terms and
conditions of this Agreement and the Common Agreement, each Construction
Facility Lender severally agrees to make loans ("Construction Loans") to the
Borrower on any Business Day during the Availability Period in an aggregate
amount not to exceed the Construction Facility Commitment of such Construction
Facility Lender. Any Construction Loan or portion thereof which is prepaid
cannot be reborrowed.
(b) Each request for a Construction Loan shall be in an aggregate
principal amount of not less than U.S.$1,000,000 (provided that the last
Construction Loan may be in an aggregate principal amount equal to the
aggregate unutilized Construction Facility Commitments available on the
date such Construction Loan is requested and provided further that any
Construction Loan requested solely for the purpose of paying interest
and/or Fees due and payable pursuant to Section 2.6 and/or Section 2.10(a)
of this Agreement (and any Taxes payable with respect to such interest
and/or Fees) may be in the aggregate principal amount of such interest,
Taxes and/or Fees, as applicable, or any portion thereof) and shall be made
by the Construction Facility Lenders ratably in proportion to their
respective Construction Facility Commitments. Each Construction Facility
Lender's Construction Facility Commitment shall be reduced by the amount
of, and on the date of, each Construction Facility Lender's Construction
Loan. The Construction Facility Commitments shall terminate in their
entirety upon the expiration of the Availability Period.
(c) The failure of any Construction Facility Lender to make the
Construction Loan required to be made by it as part of any Construction
Facility Borrowing shall not relieve any other Construction Facility Lender
of its obligation hereunder to make its respective Construction Loan on
such Borrowing Date, but no Construction Facility Lender shall be
responsible for the failure of any other Construction Facility Lender to
make the Construction Loan to be made by such other Construction Facility
Lender on any date.
Section 2.2 Procedure for Construction Facility Borrowings.
(a) All Construction Loans to be made as part of each
Construction Facility Borrowing shall consist of Construction Loans of the
same Type and Interest Period.
(b) Not later than the fifth (5th) Business Day prior to the date
of any proposed Construction Facility Borrowing (or such later date agreed
to by the Construction Facility Administrative Agent in its sole
discretion), the Borrower shall deliver a Construction Facility Notice of
Borrowing to the Construction Facility Administrative Agent and the
Independent Engineer accompanied by the documents specified in the
Construction Facility Notice of Borrowing and specifying therein (i) the
requested date of such Construction Facility Borrowing and (ii) the
aggregate amount of such proposed Construction Facility Borrowing. The
Borrower shall be entitled to request only one Construction Facility
Borrowing during any
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calendar month. Each Construction Facility Notice of Borrowing shall be
irrevocable and binding on the Borrower.
(c) In connection with each proposed Construction Facility Borrowing,
the Borrower shall deliver a further notice (an "Interest Rate Notice") to the
Construction Facility Administrative Agent in substantially the form of Exhibit
B hereto, specifying the requested Interest Period for each such Construction
Loan (and, subject to Section 2.2(a), the Type of such Construction Loans). Each
Interest Rate Notice shall be given by the Borrower to the Construction Facility
Administrative Agent not later than 11:00 a.m. (New York City time) on the third
Business Day prior to the date of the proposed Construction Facility Borrowing.
The Construction Facility Administrative Agent shall give each Construction
Facility Lender notice of each Interest Rate Notice within one (1) Business Day
after the receipt thereof by the Construction Facility Administrative Agent.
Each Interest Rate Notice shall be irrevocable and binding on the Borrower. If
no Interest Rate Notice is received by the Construction Facility Administrative
Agent as provided in this Section 2.2(c), the interest rate applicable to such
Construction Facility Borrowing shall be the Eurodollar Rate with an Interest
Period of one (1) month (or such other Interest Period designated by the
Construction Facility Administrative Agent).
(d) Each Construction Facility Lender shall, before 11:00 a.m. (New
York City time) on the date of any Construction Facility Borrowing, make
available to the Construction Facility Administrative Agent such Construction
Facility Lender's ratable portion of the Construction Facility Borrowing, in
accordance with Section 2.02(a) of the Common Agreement.
(e) Notwithstanding the foregoing, if the date for any proposed
Construction Facility Borrowing is a date on which the Borrower is obligated to
pay interest on any Construction Loan pursuant to Section 2.6 hereof, any Fees
in respect of any Construction Facility Commitment pursuant to Section 2.10(a)
hereof or any Fees pursuant to any Fee Letters, then the Construction Facility
Administrative Agent may instruct, and in that event each Construction Facility
Lender shall, set off against its ratable portion of the Construction Loan to be
made on such day the entire amount of interest and Fees due and owing on such
date in respect of such Construction Facility Lender's Construction Loans.
Section 2.3 Repayment of Construction Loans. All Construction Loans then
outstanding and all accrued interest thereon shall be due and payable in full on
the Loan Maturity Date.
Section 2.4 Optional Prepayments. The Borrower may prepay the Construction
Loans, in whole or in part, without premium or penalty, upon (a) demonstrating
to the reasonable satisfaction of the Intercreditor Agent that Project
Completion will be achieved by the Project Completion Date and (b) delivering
irrevocable notice to the Construction Facility Administrative Agent no later
than 11:00 A.M., New York City time, three Business Days prior thereto, in the
case of Eurodollar Loans, and no later than 11:00 A.M., New York City time, one
Business Day prior thereto, in the case of ABR Loans, which notice shall specify
the date and amount of prepayment and whether the prepayment is of Eurodollar
Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest
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Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 3.04 of the Common Agreement. Upon receipt of any such
notice the Construction Facility Administrative Agent shall promptly notify each
Construction Facility Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with accrued interest to such date on the amount prepaid. Partial
prepayments of the Construction Loans shall be in an aggregate principal amount
of $1,000,000 or a whole multiple thereof.
Section 2.5 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Construction Facility Administrative Agent prior irrevocable notice of such
election no later than 11:00 A.M., New York City time, on the Business Day
preceding the proposed conversion date, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans
to Eurodollar Loans by giving the Construction Facility Administrative Agent
prior irrevocable notice of such election no later than 11:00 A.M., New York
City time, on the third Business Day preceding the proposed conversion date
(which notice shall specify the length of the initial Interest Period therefor),
provided that no ABR Loan may be converted into a Eurodollar Loan when any Event
of Default has occurred and is continuing and the Construction Facility
Administrative Agent or the Construction Facility Majority Lenders have
determined in its or their sole discretion not to permit such conversions. Upon
receipt of any such notice the Construction Facility Administrative Agent shall
promptly notify each Construction Facility Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Construction Facility Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period" set
forth in Section 1.1, of the length of the next Interest Period to be applicable
to such Eurodollar Loans, provided that no Eurodollar Loan may be continued as
such when any Event of Default has occurred and is continuing and the
Construction Facility Administrative Agent has or the Construction Facility
Majority Lenders have determined in its or their sole discretion not to permit
such continuations, and provided, further, that if the Borrower shall fail to
give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Eurodollar
Loans shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period. Upon receipt of any such notice the Construction
Facility Administrative Agent shall promptly notify each Construction Facility
Lender thereof.
Section 2.6 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin.
(c) Following the occurrence and during the continuance of an Event of
Default, a rate per annum equal to 2.00% above the rate per annum required to be
paid on a Eurodollar Loan or an ABR Loan, as the case may be.
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(d) Any other amounts payable hereunder and under the other
Construction Facility Loan Documents that are not paid when due shall (to the
fullest extent permitted by law) bear interest, from the date when due until
paid in full, at a rate per annum equal at all times to the Construction
Facility Lender Default Rate.
(e) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) or (d) of this
Section shall be payable from time to time on demand.
(f) In connection with each Construction Facility Borrowing pursuant
to Section 2.2 and each continuation and/or conversion pursuant to Section 2.5,
the Construction Facility Administrative Agent shall promptly notify each
Construction Facility Lender of the applicable interest rate with respect
thereto promptly after determination thereof.
Section 2.7 Computation of Interest and Fees. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to ABR Loans the rate of interest
on which is calculated on the basis of the Prime Rate, the interest thereon
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Construction Facility Administrative Agent
shall as soon as practicable notify the Borrower and the Construction Facility
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Construction Loan resulting from a change in the ABR or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Construction
Facility Administrative Agent shall as soon as practicable notify the Borrower
and the Construction Facility Lenders of the effective date and the amount of
each such change in interest rate.
(b) Each determination of an interest rate by the Construction
Facility Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Construction Facility Lenders
in the absence of manifest error. The Construction Facility Administrative Agent
shall, at the request of the Borrower, deliver to the Borrower a statement
showing the quotations used by the Construction Facility Administrative Agent in
determining any interest rate pursuant to Section 2.6.
Section 2.8 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Construction Facility Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or
(b) the Construction Facility Administrative Agent shall have received
notice from the Construction Facility Majority Lenders that the Eurodollar Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Construction Facility Lenders (as conclusively
certified by such Construction Facility Lenders) of making or maintaining their
affected Construction Loans during such Interest Period,
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the Construction Facility Administrative Agent shall give telecopy or telephonic
notice thereof to the Borrower and the Construction Facility Lenders as soon as
practicable thereafter. If such notice is given (x) any Eurodollar Loans
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Construction Loans that were to have been converted on the
first day of such Interest Period to Eurodollar Loans shall be continued as ABR
Loans and (z) any outstanding Eurodollar Loans shall be converted, on the last
day of the then-current Interest Period, to ABR Loans. Until such notice has
been withdrawn by the Construction Facility Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Construction Loans to Eurodollar Loans.
Section 2.9 Pro Rata Treatment and Payments. (a) Each Construction Facility
Borrowing by the Borrower from the Construction Facility Lenders hereunder, each
payment by the Borrower on account of any commitment fee and any reduction of
the Construction Facility Commitments of the Construction Facility Lenders shall
be made pro rata according to the respective Construction Facility Percentages
of the Construction Facility Lenders.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Construction Loans shall be made pro
rata according to the respective outstanding principal amounts of the
Construction Loans then held by the Construction Facility Lenders. Amounts
prepaid on account of the Construction Loans may not be reborrowed.
(c) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 11:00 a.m.,
New York City time, on the due date thereof to the Construction Facility
Administrative Agent, for the account of the Construction Facility Lenders, at
the Funding Office, in Dollars and in immediately available funds. The
Construction Facility Administrative Agent shall distribute such payments to
each Construction Facility Lender promptly upon receipt in like funds as
received, net of any amounts owing by such Construction Facility Lender pursuant
to Section 9.7. If any payment hereunder (other than payments on the Eurodollar
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
(d) Unless the Construction Facility Administrative Agent shall have
been notified in writing by any Construction Facility Lender prior to a
Construction Facility Borrowing that such Construction Facility Lender will not
make the amount that would constitute its share of such Construction Facility
Borrowing available to the Construction Facility Administrative Agent, the
Construction Facility Administrative Agent may assume that such Construction
Facility Lender is making such amount available to the Construction Facility
Administrative Agent, and the Construction Facility Administrative Agent may, in
reliance upon
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such assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Construction Facility Administrative Agent
by the required time on the Borrowing Date therefor, such Construction Facility
Lender shall pay to the Construction Facility Administrative Agent, on demand,
such amount with interest thereon, at a rate equal to the greater of (i) the
Federal Funds Effective Rate and (ii) a rate determined by the Construction
Facility Administrative Agent in accordance with banking industry rules on
interbank compensation, for the period until such Construction Facility Lender
makes such amount immediately available to the Construction Facility
Administrative Agent. A certificate of the Construction Facility Administrative
Agent submitted to any Construction Facility Lender with respect to any amounts
owing under this paragraph shall be conclusive in the absence of manifest error.
If such Construction Facility Lender's share of such Construction Facility
Borrowing is not made available to the Construction Facility Administrative
Agent by such Construction Facility Lender within three Business Days after such
Borrowing Date, the Construction Facility Administrative Agent shall also be
entitled to recover such amount with interest thereon at the rate per annum
applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Construction Facility Administrative Agent shall have
been notified in writing by the Borrower prior to the date of any payment due to
be made by the Borrower hereunder that the Borrower will not make such payment
to the Construction Facility Administrative Agent, the Construction Facility
Administrative Agent may assume that the Borrower is making such payment, and
the Construction Facility Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Construction
Facility Lenders their respective pro rata shares of a corresponding amount. If
such payment is not made to the Construction Facility Administrative Agent by
the Borrower within three Business Days after such due date, the Construction
Facility Administrative Agent shall be entitled to recover, on demand, from each
Construction Facility Lender to which any amount which was made available
pursuant to the preceding sentence, such amount with interest thereon at the
rate per annum equal to the daily average Federal Funds Effective Rate. Nothing
herein shall be deemed to limit the rights of the Construction Facility
Administrative Agent or any Construction Facility Lender against the Borrower.
Section 2.10 Fees.
(a) The Borrower agrees to pay to the Construction Facility
Administrative Agent for the account of each Construction Facility Lender a
commitment fee on the average daily unused amount of such Construction Facility
Lender's Construction Facility Commitment from the Signing Date, in the case of
each Construction Facility Lender initially a party hereto, and from the
effective date specified in the Assignment pursuant to which an Assignee becomes
a Construction Facility Lender, until the Loan Maturity Date, at the rate of
0.25% per annum, payable monthly in arrears on each Monthly Payment Date,
commencing on the first such date to occur on or following the earlier of (i)
the date that is one hundred twenty (120) days following the Signing Date or
(ii) the date of the initial Construction Facility Borrowing.
(b) The Borrower further agrees to pay the fees set forth in the
Construction Facility Fee Letter in accordance with the terms thereof.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Borrower. To induce the
Construction Facility Administrative Agent and the Construction Facility Lenders
to enter into this Agreement and to make the Construction Loans, the Borrower
hereby confirms each of the representations and warranties set forth in Section
5.01 of the Common Agreement, which representations and warranties shall apply,
mutatis mutandis, to this Agreement as if they had been fully set out in this
Agreement and made as of the dates specified in the Common Agreement (unless and
to the extent waived or amended from time to time in accordance with the terms
of the Common Agreement). All of these representations and warranties shall
survive the execution and delivery of this Agreement, the Construction Facility
Closing Date and all Construction Facility Borrowings and Construction Facility
Commitments made hereunder.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.1 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 are subject to
satisfaction, in a manner satisfactory to each Construction Facility Lender, of
each of the conditions set forth in Section 4.03, 4.04 and 4.05 of the Common
Agreement, which conditions shall apply, mutatis mutandis, to this Agreement as
if they had been fully set out herein (provided, that, a waiver of any condition
under Section 4.03, 4.04 or 4.05 of the Common Agreement shall be deemed a
waiver of such condition hereunder).
Section 4.2 Conditions Precedent to Each Construction Facility Borrowing.
The obligation of each Construction Facility Lender to make any Construction
Loan is subject to satisfaction, in a manner satisfactory to (x) in the case of
the initial Construction Facility Borrowing, each Lender and (y) in the case of
any subsequent Construction Facility Borrowing, the Construction Facility
Administrative Agent, of each of the conditions set forth in Sections 4.04 and
4.05 of the Common Agreement, which conditions shall apply, mutatis mutandis, to
this Agreement as if they had been fully set out herein (provided, that, a
waiver of any condition under Section 4.04 or 4.05 of the Common Agreement shall
be deemed a waiver of such condition hereunder).
ARTICLE 5
AFFIRMATIVE COVENANTS
Section 5.1 Affirmative Covenants of the Borrower. The Borrower hereby
agrees to comply with each of the covenants set forth in Section 6.01 of the
Common Agreement and to otherwise perform and observe all of the obligations
undertaken by it in the Common Agreement, the terms of which shall apply,
mutatis mutandis, to this Agreement as if fully set forth herein (unless and to
the extent waived or amended from time to time in accordance with the terms of
the Common Agreement).
10
ARTICLE 6
NEGATIVE COVENANTS
Section 6.1 Negative Covenants of the Borrower. The Borrower hereby agrees
to comply with each of the covenants set forth in Section 6.02 of the Common
Agreement and to otherwise perform and observe all of the obligations undertaken
by it in the Common Agreement, the terms of which shall apply, mutatis mutandis,
to this Agreement as if fully set forth herein (unless and to the extent waived
or amended from time to time in accordance with the terms of the Common
Agreement).
ARTICLE 7
REPORTING OBLIGATIONS
Section 7.1 Reporting Obligations of the Borrower. The Borrower hereby
agrees to comply with each of the obligations set forth in Section 6.03 of the
Common Agreement and to otherwise perform and observe all of the obligations
undertaken by it in the Common Agreement, the terms of which shall apply,
mutatis mutandis, to this Agreement as if fully set forth herein (unless and to
the extent waived or amended from time to time in accordance with the terms of
the Common Agreement).
ARTICLE 8
EVENTS OF DEFAULT
Section 8.1 Events of Default; Remedies.
(a) An Event of Default shall occur hereunder upon the occurrence of
any Event of Default set forth in Section 7.01 of the Common Agreement, the
terms of which shall apply, mutatis mutandis, to this Agreement as if fully set
forth herein.
(b) If any Event of Default shall have occurred and be continuing, the
Construction Facility Administrative Agent, subject to the terms of the Common
Agreement and, once executed, the Intercreditor Agreement, may take any of the
actions specified in Section 7.02(a), 7.03 or 7.04 of the Common Agreement.
(c) Subject to the Intercreditor Agreement (once executed), upon the
acceleration of the Construction Loans pursuant to Section 8.1(b) hereof or
Section 7.02 of the Common Agreement, each of the Construction Facility Lenders
and the Construction Facility Administrative Agent may take all such actions as
it deems reasonable to recover any amounts due hereunder.
(d) All distributions to or for the benefit of the Construction
Facility Lenders under or in respect of any of the Financing Documents shall be
received on account of the Construction Facility Obligations owed to the
Construction Facility Lenders without prejudice to any claim by the Construction
Facility Administrative Agent and the Construction Facility Lenders for any
deficiency after such distributions are distributed to the Construction Facility
Administrative Agent and the Construction Facility Lenders; the Construction
Facility Administrative Agent shall deliver notice to the Borrower of any such
deficiency and the Borrower shall remain liable for the same. After the
occurrence and during the continuance of
11
an Event of Default, all such distributions shall be applied to such part of the
Construction Facility Obligations as is determined by the Construction Facility
Lenders in their sole discretion or, in the event the Construction Facility
Lenders fail to advise the Construction Facility Administrative Agent of their
determination, by the Construction Facility Administrative Agent. After the
occurrence and during the continuance of an Event of Default, the Construction
Facility Lenders may at any time change any application of any such
distributions or other moneys received by the Construction Facility
Administrative Agent and may reapply the same to any part of the Construction
Facility Obligations as the Construction Facility Lenders may from time to time
in their absolute discretion determine.
ARTICLE 9
THE CONSTRUCTION FACILITY ADMINISTRATIVE AGENT
Section 9.1 Appointment. Each Construction Facility Lender hereby
irrevocably designates and appoints the Construction Facility Administrative
Agent as the agent of such Construction Facility Lender under this Agreement and
the other Financing Documents, and each such Construction Facility Lender
irrevocably authorizes the Construction Facility Administrative Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Financing Documents and to exercise such powers and
perform such duties as are expressly delegated to the Construction Facility
Administrative Agent by the terms of this Agreement and the other Financing
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Construction Facility Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Construction Facility Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Financing Document or otherwise exist against
the Construction Facility Administrative Agent.
Section 9.2 Delegation of Duties. The Construction Facility Administrative
Agent may execute any of its duties under this Agreement and the other 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. The
Construction Facility Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in fact selected by it with
reasonable care.
Section 9.3 Exculpatory Provisions. Neither the Construction Facility
Administrative Agent nor any of its officers, directors, employees, agents,
advisors, attorneys in fact or affiliates shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Financing Document (except to the
extent that any of the foregoing are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from its or such Person's
own gross negligence or willful misconduct) or (b) responsible in any manner to
any of the Construction Facility Lenders for any recitals, statements,
representations or warranties made by any Project Party or any officer thereof
contained in this Agreement or any other Financing Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Construction Facility Administrative Agent under or in
connection with, this Agreement or any other Financing Document or for the
value, validity, effectiveness, genuineness, enforceability or
12
sufficiency of this Agreement or any other Financing Document or for any failure
of any Project Party a party thereto to perform its obligations hereunder or
thereunder. The Construction Facility Administrative Agent shall not be under
any obligation to any Construction Facility Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Financing Document, or to inspect the
properties, books or records of any Project Party.
Section 9.4 Reliance by Construction Facility Administrative Agent. The
Construction Facility Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy or email message, statement,
order or other document or conversation 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 counsel to the Borrower),
independent accountants and other experts selected by the Construction Facility
Administrative Agent. The Construction Facility Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Financing Document unless it shall first receive such advice or
concurrence of the Construction Facility Majority Lenders (or, if so specified
by this Agreement, all Construction Facility Lenders) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Construction Facility
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Construction
Facility Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement and the other Financing
Documents in accordance with a request of the Construction Facility Majority
Lenders (or, if so specified by this Agreement, all Construction Facility
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Construction Facility Lenders and all
future holders of the Construction Loans.
Section 9.5 Notice of Default. The Construction Facility Administrative
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default unless the Construction Facility Administrative
Agent has received notice from a Construction Facility Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Construction Facility Administrative Agent receives such a notice, the
Construction Facility Administrative Agent shall give notice thereof to the
Construction Facility Lenders. Subject to the Intercreditor Agreement, the
Construction Facility Administrative Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by the
Construction Facility Majority Lenders (or, if so specified by this Agreement,
all Construction Facility Lenders); provided that unless and until the
Construction Facility Administrative Agent shall have received such directions,
the Construction Facility Administrative Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Construction Facility Lenders (subject to the Intercreditor Agreement).
Section 9.6 Non-Reliance on Construction Facility Administrative Agent and
Other Construction Facility Lenders. Each Construction Facility Lender expressly
acknowledges that neither the Construction Facility Administrative Agent nor any
of its officers, directors, employees, agents, advisors, attorneys in fact or
affiliates have made any representations or
13
warranties to it and that no act by the Construction Facility Administrative
Agent hereafter taken, including any review of the affairs of a Project Party or
any affiliate of a Project Party, shall be deemed to constitute any
representation or warranty by the Construction Facility Administrative Agent to
any Construction Facility Lender. Each Construction Facility Lender represents
to the Construction Facility Administrative Agent that it has, independently and
without reliance upon the Construction Facility Administrative Agent or any
other Construction Facility Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Project Parties and their affiliates and made its own
decision to make its Construction Loans hereunder and enter into this Agreement.
Each Construction Facility Lender also represents that it will, independently
and without reliance upon the Construction Facility Administrative Agent or any
other Construction Facility Lender, 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
Agreement and the other Financing Documents, 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 Parties and
their affiliates. Except for notices, reports and other documents expressly
required to be furnished to the Construction Facility Lenders by the
Construction Facility Administrative Agent hereunder, the Construction Facility
Administrative Agent shall not have any duty or responsibility to provide any
Construction Facility Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Project Party or any affiliate of a Project Party that
may come into the possession of the Construction Facility Administrative Agent
or any of its officers, directors, employees, agents, attorneys in fact or
affiliates.
Section 9.7 Indemnification. The Construction Facility Lenders agree to
indemnify the Construction Facility Administrative Agent and its officers,
directors, employees, affiliates, agents, advisors and controlling persons
(each, an "Agent Indemnitee") (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Construction Facility Percentages in effect on the date on
which indemnification is sought under this Section (or, if indemnification is
sought after the date upon which the Construction Facility Commitments shall
have terminated and the Construction Loans shall have been paid in full, ratably
in accordance with such Construction Facility Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (whether before or after the payment
of the Construction Loans) be imposed on, incurred by or asserted against such
Agent Indemnitee in any way relating to or arising out of, the Construction
Facility Commitments, this Agreement, any of the other Financing Documents or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
such Agent Indemnitee under or in connection with any of the foregoing; provided
that no Construction Facility Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from such Agent Indemnitee's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Construction Loans
and all other amounts payable hereunder.
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Section 9.8 Agent in Its Individual Capacity. The Construction Facility
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Project Party as though
the Construction Facility Administrative Agent did not serve in such capacity.
With respect to its Construction Loans made or renewed by it, the Construction
Facility Administrative Agent shall have the same rights and powers under this
Agreement and the other Financing Documents as any Construction Facility Lender
and may exercise the same as though it were not the Construction Facility
Administrative Agent, and the terms "Construction Facility Lender" and
"Construction Facility Lenders" shall include the Construction Facility
Administrative Agent in its individual capacity.
Section 9.9 Successor Construction Facility Administrative Agent. The
Construction Facility Administrative Agent may resign as Construction Facility
Administrative Agent upon 90 days' notice to the Construction Facility Lenders
and the Borrower. If the Construction Facility Administrative Agent shall resign
as Construction Facility Administrative Agent under this Agreement and the other
Financing Documents, then the Construction Facility Required Lenders shall
appoint from among the Construction Facility Lenders a successor agent for the
Construction Facility Lenders, which successor agent shall (unless a Default
shall have occurred and be continuing) be subject to approval by the Borrower
(which approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the
Construction Facility Administrative Agent, and the term "Construction Facility
Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Construction Facility Administrative
Agent's rights, powers and duties as Construction Facility Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Construction Facility Administrative Agent or any of the parties to
this Agreement or any holders of the Construction Loans. If no successor agent
has accepted appointment as Construction Facility Administrative Agent by the
date that is 90 days following a retiring Construction Facility Administrative
Agent's notice of resignation, the retiring Construction Facility Administrative
Agent's resignation shall nevertheless thereupon become effective, and the
Construction Facility Lenders shall assume and perform all of the duties of the
Construction Facility Administrative Agent hereunder until such time, if any, as
the Construction Facility Required Lenders appoint a successor agent as provided
for above. Notwithstanding anything herein to the contrary, if no successor
agent has accepted appointment as Construction Facility Administrative Agent by
the date that is sixty (60) days following the effective date of the retiring
Construction Facility Administrative Agent's resignation, the Intercreditor
Agent may appoint a successor Construction Facility Administrative Agent from
among the Construction Facility Lenders (without obtaining the approval of any
such Construction Facility Lenders). After any retiring Construction Facility
Administrative Agent's resignation as Construction Facility Administrative
Agent, the provisions of this Section 9 and of Section 10.04 of the Common
Agreement shall continue to inure to its benefit.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Incorporation of Miscellaneous Provisions by Reference.
Sections 10.03, 10.08, 10.10, 10.13, 10.14 and 10.15 of the Common Agreement are
hereby incorporated by reference herein as if fully set forth herein.
15
Section 10.2 Amendments and Waivers. No amendment, supplement,
modification, waiver, cancellation, consent or approval with regard to any
provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed or approved by the Borrower, the Construction
Facility Administrative Agent and the Construction Facility Majority Lenders and
then such amendment, supplement, modification, cancellation, consent or approval
shall be effective only in the specific instance and for the specific purpose
for which given; provided that:
(a) no amendment, supplement, modification, waiver, cancellation,
consent or approval shall, unless in writing and signed by all of the
Construction Facility Lenders, do any of the following: (i) take any action
which is defined as a Fundamental Decision in the Common Agreement, (ii) take
any action that changes the Construction Facility Commitment of any Construction
Facility Lender or the obligation of any Construction Facility Lender to make a
Construction Loan, (iii) take any action which requires the consent of each
Construction Facility Lender pursuant to the terms of any Transaction Document
or (iv) amend or modify this Section 10.2;
(b) any amendment, supplement, modification, determination, waiver,
cancellation, consent or approval which is or effects a Construction Facility
Administrative Decision may be effected by the Construction Facility
Administrative Agent; and
(c) no amendment, supplement, modification, waiver, cancellation,
consent or approval shall, unless in writing and signed by the Construction
Facility Administrative Agent in addition to the Construction Facility Lenders
required hereinabove to take such action, affect the rights or duties of the
Construction Facility Administrative Agent under this Agreement.
Any amendment, supplement, modification, determination, waiver, cancellation,
consent or approval so made shall be binding on all of the Construction Facility
Lenders. The terms of this Section 10.2 shall be subject to the terms of the
Intercreditor Agreement and Section 10.01 of the Common Agreement.
Section 10.3 Notices. All notices and other communications provided for
hereunder shall be given or made in accordance with the provisions of Section
10.02 of the Common Agreement.
Section 10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Financing Documents
and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Construction Loans and other extensions of credit
hereunder.
Section 10.5 Successors and Assigns; Participations and Assignments. (a)
The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns permitted
hereby, except that (i) the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Construction Facility Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Construction
Facility
16
Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Construction Facility Lender may assign to one or more assignees
(each, an "Assignee") all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Construction Facility Commitments
and the Construction Loans at the time owing to it) with the prior written
consent of:
(A) the Borrower (such consent not to be unreasonably
withheld), provided that no consent of the Borrower shall be required for an
assignment to a Construction Facility Lender, an affiliate of a Construction
Facility Lender, an Approved Fund (as defined below) or, if an Event of Default
has occurred and is continuing, any other Person; and
(B) the Construction Facility Administrative Agent, provided
that no consent of the Construction Facility Administrative Agent shall be
required for an assignment of all or any portion of a Construction Loan to a
Construction Facility Lender, an affiliate of a Construction Facility Lender or
an Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Construction
Facility Lender, an affiliate of a Construction Facility Lender or an Approved
Fund or an assignment of the entire remaining amount of the assigning
Construction Facility Lender's Construction Facility Commitments or Construction
Loans, the amount of the Construction Facility Commitments or Construction Loans
of the assigning Construction Facility Lender subject to each such assignment
(determined as of the date the Assignment with respect to such assignment is
delivered to the Construction Facility Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Construction Facility
Administrative Agent otherwise consent, provided that (1) no such consent of the
Borrower shall be required if an Event of Default has occurred and is continuing
and (2) such amounts shall be aggregated in respect of each Construction
Facility Lender and its affiliates or Approved Funds, if any;
(B) each such assignment shall be of a constant, and not a
varying, percentage of all of the assigning Construction Facility Lender's
rights (including with respect to its Construction Loans) and obligations
(including with respect to its Construction Facility Commitments);
(C) (1) the parties to each assignment shall execute and
deliver to the Construction Facility Administrative Agent an Assignment,
together with a processing and recordation fee of $3,500 and (2) the assigning
Construction Facility Lender shall have paid in full any amounts owing by it to
the Construction Facility Administrative Agent; and
(D) the Assignee, if it shall not be a Construction Facility
Lender, shall deliver to the Construction Facility Administrative Agent an
administrative questionnaire in which the Assignee designates one or more credit
contacts to whom all
17
syndicate-level information (which may contain material non-public information
about the Borrower and its Affiliates and their related parties or their
respective securities) will be made available and who may receive such
information in accordance with the assignee's compliance procedures and
applicable laws, including Federal and state securities laws.
For the purposes of this Section 10.5, "Approved Fund" means any Person
(other than a natural person) that is engaged in making, purchasing, holding or
investing in bank loans and similar extensions of credit in the ordinary course
of its business and that is administered or managed by (a) a Construction
Facility Lender, (b) an affiliate of a Construction Facility Lender or (c) an
entity or an affiliate of an entity that administers or manages a Construction
Facility Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in each
Assignment the Assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment, have the rights and obligations of a
Construction Facility Lender under this Agreement, and the assigning
Construction Facility Lender thereunder shall, to the extent of the interest
assigned by such Assignment, be released from its obligations under this
Agreement (and, in the case of an Assignment covering all of the assigning
Construction Facility Lender's rights and obligations under this Agreement, such
Construction Facility Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.02, 3.03, 3.04 and 10.04 of the
Common Agreement). Any assignment or transfer by a Construction Facility Lender
of rights or obligations under this Agreement that does not comply with this
Section 10.5 shall be treated for purposes of this Agreement as a sale by such
Construction Facility Lender of a participation in such rights and obligations
in accordance with paragraph (c) of this Section.
(iv) The Construction Facility Administrative Agent, acting for
this purpose as an agent of the Borrower, shall maintain at one of its offices a
copy of each Assignment delivered to it and a register for the recordation of
the names and addresses of the Construction Facility Lenders, and the
Construction Facility Commitments of, and principal amount of the Construction
Loans owing to, each Construction Facility Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Construction Facility Administrative Agent and
the Construction Facility Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Construction Facility Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.
(v) Upon its receipt of a duly completed Assignment executed by
an assigning Construction Facility Lender and an Assignee, the Assignee's
completed administrative questionnaire (unless the Assignee shall already be a
Construction Facility Lender hereunder), the processing and recordation fee
referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Construction Facility
Administrative Agent shall accept such Assignment and record the information
contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.
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(c) (i) Any Construction Facility Lender may, without the consent of
the Borrower or the Construction Facility Administrative Agent, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Construction Facility Lender's rights and obligations under
this Agreement (including all or a portion of its Construction Facility
Commitments and the Construction Loans owing to it); provided that (A) such
Construction Facility Lender's obligations under this Agreement shall remain
unchanged, (B) such Construction Facility Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations and (C) the
Borrower, the Construction Facility Administrative Agent and the other
Construction Facility Lenders shall continue to deal solely and directly with
such Construction Facility Lender in connection with such Construction Facility
Lender's rights and obligations under this Agreement. Any agreement pursuant to
which a Construction Facility Lender sells such a participation shall provide
that such Construction Facility Lender shall retain the sole right to enforce
this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.02, 3.03 and 3.04 of the Common Agreement to the same extent as if it
were a Construction Facility Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.6(b) as though
it were a Construction Facility Lender, provided such Participant shall be
subject to Section 10.6(a) as though it were a Construction Facility Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under the Common Agreement than the applicable Construction Facility
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. Any Participant
that is a non-U.S. Lender shall not be entitled to the benefits of Section 3.02
of the Common Agreement unless such Participant complies with Section 3.02(e) of
the Common Agreement.
(d) Any Construction Facility Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Construction Facility Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Construction Facility Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Construction Facility Lender as
a party hereto.
(e) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Construction Loans it may have funded hereunder to its designating
Construction Facility Lender without the consent of the Borrower or the
Construction Facility Administrative Agent and without regard to the limitations
set forth in Section 10.5(b). Each of the Borrower, each Construction Facility
Lender and the Construction Facility Administrative Agent hereby confirms that
it will not institute against a Conduit Lender or join any other Person in
instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however,
that each Construction Facility Lender designating any Conduit Lender hereby
agrees
19
to indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.
Section 10.6 Adjustments; Set off. (a) Except to the extent that this
Agreement, any other Financing Document or a court order expressly provides for
payments to be allocated to a particular Construction Facility Lender, if any
Construction Facility Lender (a "Benefitted Lender") shall receive any payment
of all or part of the Construction Facility Obligations owing to it (other than
in connection with an assignment made pursuant to Section 10.5), or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set off,
or otherwise), in a greater proportion than any such payment to or collateral
received by any other Construction Facility Lender, if any, in respect of the
Construction Facility Obligations owing to such other Construction Facility
Lender, such Benefitted Lender shall purchase for cash from the other
Construction Facility Lenders a participating interest in such portion of the
Construction Facility Obligations owing to each such other Construction Facility
Lender, or shall provide such other Construction Facility Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Construction Facility Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Construction
Facility Lenders provided by law, each Construction Facility Lender shall have
the right, without notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, upon any
Construction Facility Obligations becoming due and payable by the Borrower
(whether at the stated maturity, by acceleration or otherwise), to apply to the
payment of such Obligations, by setoff or otherwise, any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Construction Facility Lender, any affiliate thereof or any
of their respective branches or agencies to or for the credit or the account of
the Borrower. Each Construction Facility Lender agrees promptly to notify the
Borrower and the Construction Facility Administrative Agent after any such
application made by such Construction Facility Lender, provided that the failure
to give such notice shall not affect the validity of such application.
Section 10.7 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Construction Facility
Administrative Agent.
Section 10.8 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such
20
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.9 Integration. This Agreement and the other Financing Documents
represent the entire agreement of the Borrower, the Construction Facility
Administrative Agent and the Construction Facility Lenders with respect to the
subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Construction Facility Administrative Agent
or any Construction Facility Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Financing Documents.
Section 10.10 GOVERNING LAW, SUBMISSION TO JURISDICTION, ETC.
(a) THIS AGREEMENT AND EACH OF THE OTHER FINANCING DOCUMENTS (UNLESS
SUCH 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 sitting
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 Agreement or any other Financing Document, (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 10.3. 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 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) 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
Construction Facility Lender or the Construction Facility Administrative Agent
post security for costs or take similar action, the Borrower hereby irrevocably
waives and agrees not to claim the benefit of such entitlement.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
CONSTRUCTORA DE PROYECTOS
HIDROELECTRICOS, S.A. DE C.V., as the
Borrower
By: /s/ GABRIEL DE LA CONCHA
------------------------------------
Name: GABRIEL DE LA CONCHA
Title: LEGAL REPRESENTATIVE
Signature Page to Construction Facility Credit Agreement
WESTLB AG, NEW YORK BRANCH, as
Construction Facility Administrative
Agent
By: /s/ Jared Brenner
------------------------------------
Name: Jared Brenner
Title: Executive Director
By: /s/ Isaac Deutsch
------------------------------------
Name: Isaac Deutsch
Title: Executive Director
Signature Page to Construction Facility Credit Agreement
BANCO BILBAO VIZCAYA ARGENTARIA
S.A, GRAND CAYMAN BRANCH, as a
Construction Facility Lender.
By: /s/ ANDREA SCHWARTZ
------------------------------------
Name: ANDREA SCHWARTZ
Title: Assistant Vice President
International Corporate Banking
By: /s/ CRISTIAN AGUIRRE
------------------------------------
Name: CRISTIAN AGUIRRE
Title: Assistant Vice President
International Corporate Banking
Signature Page to Construction Facility Credit Agreement
CITIBANK N.A. NASSAU BAHAMAS
BRANCH, as a Construction Facility Leader
By: /s/ Leslie Munroe
------------------------------------
Name: Leslie Munroe
Title: Attorney-In-Fact
Citibank N.A.
Nassau, Bahamas Branch
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to Construction Facility Credit Agreement
HSBC MEXICO S.A., INSTITUCION DE
BANCA MULTIPLE, GRUPO FINANCIERO HSBC,
CAYMAN BRANCH, as a Construction
Facility Leader
By: /s/ MICHAEL R. SCHWANDT G.
------------------------------------
Name: MICHAEL R. SCHWANDT G.
Title: Director
By: /s/ KENNETH F. KRYZDA M.
------------------------------------
Name: KENNETH F. KRYZDA M.
Title: Executive Director
Signature Page to Construction Facility Credit Agreement
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as a Construction
Facility Lender
By: /s/ Nicolai Dillow
------------------------------------
Name: Nicolai Dillow
Title: Vice Prescient
By: /s/ Bulent Osma
------------------------------------
Name: Bulent Osma
Title: Vice President
Signature Page to Construction Facility Credit Agreement
BANCO SANTANDER S.A., NEW YORK BRANCH,
as a Construction Facility Lender
By: /s/ FRANK G. ENGLISH, IV
------------------------------------
Name: FRANK G. ENGLISH, IV
Title: Managing Director
Global Corporate Banking
By: /s/ Carlos F. de Paula
------------------------------------
Name: Carlos F. de Paula
Title: Executive Director
Grupo Santander
Signature Page to Construction Facility Credit Agreement
WESTLB AG, NEW YORK BRANCH, as a
Construction Facility Lender
By: /s/ Jared Brenner
------------------------------------
Name: Jared Brenner
Title: Executive Director
By: /s/ Isaac Deutsch
------------------------------------
Name: Isaac Deutsch
Title: Executive Director
Signature Page to Construction Facility Credit Agreement
SCHEDULE 1 TO
CONSTRUCTION FACILITY CREDIT AGREEMENT
COMMITMENTS AND PERCENTAGES
LENDER COMMITMENT PERCENTAGE
------ ------------------- -------------------
WESTLB AG, NEW YORK U.S.$151,666,666.70 16.66666%
BRANCH
BANCO BILBAO U.S.$151,666,666.66 16.66666%
VIZCAYA ARGENTARIA
S.A., GRAND CAYMAN
BRANCH
CITIBANK N.A. NASSAU U.S.$151,666,666.66 16.66666%
BAHAMAS BRANCH
HSBC MEXICO S.A., U.S.$151,666,666.66 16.66666%
INSTITUCION DE BANCA
MULTIPLE, GRUPO
FINANCIERO HSBC,
CAYMAN BRANCH
NORDDEUTSCHE U.S.$151,666,666.66 16.66666%
LANDESBANK
GIROZENTRALE, NEW
YORK BRANCH
BANCO SANTANDER S.A., U.S.$151,666,666.66 16.66666%
NEW YORK BRANCH
TOTAL COMMITMENTS TOTAL PERCENTAGE(1)
U.S.$910,000,000 100%
- ----------
(1) The Total Percentage does not equal exactly 100% due to rounding
EXHIBIT A TO
CONSTRUCTION FACILITY CREDIT AGREEMENT
[FORM OF ASSIGNMENT]
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of [______], 20[__]
(this "Agreement") is made [between](2) [among](3) [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), [Constructora de Proyectos Hidroelectricos, S.A. de
C.V. (the "Borrower")](4) and [WestLB AG, New York Branch, as construction
facility administrative agent (together with its successors and assigns in such
capacity, the "Construction Facility Administrative Agent") for the Construction
Facility Lenders (as defined below)](5). All capitalized terms used herein and
not otherwise defined herein shall have the meanings specified in the
Construction Facility Credit Agreement referred to below.
PRELIMINARY STATEMENTS
1. This Agreement relates to the Construction Facility Credit
Agreement dated, as of October 19, 2007 (as the same may be amended,
supplemented or otherwise modified from time to time, the "Construction Facility
Credit Agreement"), among the Borrower, the construction facility lenders named
on the signature pages thereto and from time to time parties thereto (the
"Construction Facility Lenders"), and the Construction Facility Administrative
Agent.
2. Construction Loans in the principal amount of U.S.$[________] made
to the Borrower by the Assignor under the Construction Facility Credit Agreement
are outstanding on the date hereof.
3. The Assignor proposes to assign to the Assignee all of its rights
under the Construction Facility Credit Agreement in respect of U.S.$[________]
of its Construction Facility Commitment thereunder (the "Assigned Commitment"),
together with a portion of its outstanding Construction Loans in the principal
amount equal to U.S.$[________] (the "Assigned Loans") and the Assignee proposes
to accept assignment of such rights and assume the corresponding obligations
from the Assignor on the terms herein.(6)
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTIONS.
- ----------
(2) Insert if this agreement is between the Assignor and Assignee only.
(3) Insert if this agreement is among the Assignor, the Assignee, the
Construction Facility Administrative Agent and, if applicable, the
Borrower.
(4) Insert if no Event of Default has occurred and is continuing and the
Assignee is not (A) a Construction Facility Lender, (B) an affiliate of a
Construction Facility Lender or (C) an Approved Fund.
(5) Insert if the Assignee is not (A) a Construction Facility Lender, (B) an
affiliate of a Construction Facility Lender or (C) an Approved Fund.
(6) Each assignment must be of a constant percentage of all of the assigning
Construction Facility Lender's rights (including its Construction Loans)
and obligations (including its Construction Facility Commitments).
(a) The Assignor hereby sells, assigns, transfers and conveys to the
Assignee all of the rights of the Assignor under the Construction Facility
Credit Agreement in and to the Assigned Commitment and the Assigned Loans, and
the Assignee hereby accepts such assignment, transfer and conveyance from the
Assignor and assumes all of the obligations of the Assignor under the
Construction Facility Credit Agreement in and to the Assigned Commitment and the
Assigned Loans. Upon (i) the execution and delivery hereof by the Assignor, the
Assignee and, to the extent required pursuant to Section 3 below, the Borrower
and the Construction Facility Administrative Agent and (ii) the payment of the
amounts specified in Section 2 hereof required to be paid on the date hereof,
(A) the Assignee shall, as of the date hereof, succeed to the rights and be
obligated to perform the obligations of a Construction Facility Lender under the
Construction Facility Credit Agreement with a Construction Facility Commitment
in an amount equal to the Assigned Commitment, Construction Loans outstanding in
an aggregate principal amount equal to the Assigned Loans and a Construction
Facility Percentage equal to [___] percent ([__]%) and (B) the Construction
Facility Commitment, Construction Loans and Construction Facility Percentage of
the Assignor shall, as of the date hereof, be reduced correspondingly and the
Assignor shall be released from its obligations under the Construction Facility
Credit Agreement to the extent such obligations have been assumed by the
Assignee. The assignment provided for herein shall be without recourse to the
Assignor.
(b) Each party hereto agrees to comply with the terms and conditions
set forth in Section 10.5 of the Construction Facility Credit Agreement that
govern the making of an assignment thereunder, and such terms and conditions are
incorporated herein by reference as if fully set forth herein.
SECTION 2. PAYMENTS. As consideration for the sale and assignment
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
date hereof in federal funds an amount equal to [INSERT AMOUNT OF PAYMENT IN
WORDS AND FIGURES]. It is understood that all Fees with respect to the Assigned
Commitment and the Assigned Loans accrued to the date hereof are for the account
of the Assignor. The commitment fees set forth in Section 2.10(a) of the
Construction Facility Credit Agreement, with respect to the Assigned Commitment
accrued from and including the date hereof, are for the account of the Assignee.
Each of the Assignor and the Assignee hereby agrees that if it receives any
amount under the Construction Facility Credit Agreement which is for the account
of the other party hereto, it shall receive the same for the account of such
other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 3. CONSENT OF THE BORROWER AND THE CONSTRUCTION FACILITY
ADMINISTRATIVE AGENT. This Agreement is conditioned upon the consent of the
Borrower pursuant to Section 10.5 of the Construction Facility Credit Agreement
if no Event of Default has occurred and is continuing and the Assignee is not
(A) a Construction Facility Lender, (B) an affiliate of a Construction Facility
Lender or (C) an Approved Fund. This Agreement is conditioned upon the consent
of the Construction Facility Administrative Agent pursuant to Section 10.5 of
the Construction Facility Credit Agreement if the Assignee is not (A) a
Construction Facility Lender, (B) an affiliate of a Construction Facility Lender
or (C) an Approved Fund. The execution of this Agreement by the Borrower and the
Construction Facility Administrative Agent, in each case as applicable, is
evidence of such consent.
SECTION 4. NON-RELIANCE ON ASSIGNOR.
(a) Neither the Assignor nor the Construction Facility Administrative
Agent nor any other Construction Facility Lender shall be responsible to the
Assignee for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of any of the Transaction
Documents or for any representations, warranties, recitals or statements made
therein or in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents made or
furnished or made available by the Assignor, the Construction Facility
Administrative Agent or any other Construction Facility Lender to the Assignee
or by or on behalf of the Borrower to the Assignor, the Construction Facility
Administrative Agent, such Construction Facility Lender or the Assignee in
connection with the Transaction Documents and the transactions contemplated
thereby. Neither the Assignor nor the Construction Facility Administrative Agent
nor any other Construction Facility Lender shall be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Transaction
Documents or as to the use of the proceeds of the Construction Loans or as to
the existence or possible existence of any Default or Event of Default.
(b) Neither the Assignor nor the Construction Facility Administrative
Agent nor any other Construction Facility Lender makes any representation or
warranty in connection with, and shall have no responsibility with respect to,
the solvency, financial condition, or statements of the Borrower or any other
party to any Transaction Document, or the validity and enforceability of the
Construction Facility Obligations or the obligations of any party to any
Transaction Document. The Assignee acknowledges that it has, independently and
without reliance on the Assignor, the Construction Facility Administrative Agent
or any other Construction Facility Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower and each other party to the Transaction Documents.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. AMENDMENT. No term or provision of this Agreement may be
amended, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the Assignor and the Assignee, with the consent
of the Construction Facility Administrative Agent, the Construction Facility
Majority Lenders and the Borrower.
SECTION 7. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[ASSIGNEE]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[WestLB AG, New York Branch], as
Construction Facility Administrative
Agent
By:
------------------------------------
Name:
----------------------------------
Title:](7)
-----------------------------
[CONSTRUCTORA DE PROYECTOS
HIDROELECTRICOS, S.A. DE C.V.,
as the Borrower
By:
------------------------------------
Name:
----------------------------------
Title:](8)
-----------------------------
- ----------
(7) See footnote 3.
(8) See footnote 4.
EXHIBIT B TO
CONSTRUCTION FACILITY
CREDIT AGREEMENT
[FORM OF INTEREST RATE NOTICE]
INTEREST RATE NOTICE
[___________, 20__]
WestLB AG, New York Branch ]
as Construction Facility Administrative Agent for the Construction Facility
Lenders party to the Construction Facility Credit Agreement referred to
below
1211 Avenue of the Americas
New York, New York 10036
Attention: Jared Brenner
Ladies and Gentlemen:
Pursuant to the Construction Facility Credit Agreement, dated as of October 19,
2007 (as the same may be amended, supplemented or otherwise modified from time
to time, the "Construction Facility Credit Agreement"), among Constructora de
Proyectos Hidroelectricos, S.A. de C.V. (the "Borrower"), certain construction
facility lenders party thereto (the "Construction Facility Lenders"), and WestLB
AG, New York Branch, as Construction Facility Administrative Agent for the
Construction Facility Lenders (all capitalized terms used herein and not
otherwise defined herein having the meanings specified in the Construction
Facility Credit Agreement), the Borrower has delivered to the Construction
Facility Administrative Agent and the Independent Engineer its Construction
Facility Notice of Borrowing dated [_________, 20__]. With respect thereto, the
Borrower hereby gives notice of its desire to make the Construction Facility
Borrowing on [__________ __, 20__](9) in accordance with the terms set forth
below:
(i) The Construction Facility Borrowing shall be comprised of
Construction Loans that are [EURODOLLAR LOANS] [ABR LOANS].
(ii) [The initial Interest Period for such Construction Loans shall be
one month.](10)
CONSTRUCTORA DE PROYECTOS
HIDROELECTRICOS, S.A. DE C.V.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
- ----------
(9) Insert date that is not sooner than third Business Day following the date
of delivery of this Interest Rate Notice.
(10) Use only for Eurodollar Loans.
EXHIBIT C TO
CONSTRUCTION FACILITY CREDIT AGREEMENT
[FORM OF CONSTRUCTION FACILITY NOTICE OF BORROWING]
CONSTRUCTION FACILITY NOTICE OF BORROWING
(Date)
WestLB AG, New York Branch
as Construction Facility Administrative Agent
1211 Avenue of the Americas
New York, New York 10036
Attention: Jared Brenner
Telephone: 1 (212) 852-6116
Telecopier: 1 (212)789-0075
MWH Americas, Inc.
as Independent Engineer (as defined in the Common Agreement, defined below)
[address]
Telephone: [________________]
Telecopier: [________________]
Attention: Jose Mayen
Ladies and Gentlemen:
The undersigned, Constructora de Proyectos Hidroeletricos, S.A. de C.V.
(the "Borrower"), refers to:
(i) the 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 ("WestLB"),
as intercreditor agent (the "Intercreditor Agent"); each of the banks
and other financial institutions listed on the signature pages thereto
as Construction Facility Lenders (the "Construction Facility
Lenders"); WestLB AG, New York Branch as Construction Facility
Administrative Agent (the "Construction Facility Administrative
Agent"); each of the banks and other financial institutions listed on
the signature pages thereto as Working Capital Facility Lenders (the
"Working Capital Facility Lenders"); WestLB, 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,
Integrante del Grupo Financiero Banamex, as onshore collateral agent
(the "Onshore Collateral Agent"); and the other Lenders (as defined
therein) and Lender Representatives (as defined therein) from time to
time party thereto; and
(ii) the Construction Facility Credit Agreement, dated as of October 19,
2007 (as amended, supplemented or otherwise modified from time to
time, the "Construction Facility Credit Agreement"), among the
Borrower, the Construction Facility Lenders, and the Construction
Facility Administrative Agent.
and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Common
Agreement (to the extent applicable), Section 4.04(a) of the Common Agreement
and Section 2.2(b) of the Construction Facility Credit Agreement that the
Borrower hereby requests:
- a Construction Facility Borrowing under the Construction Facility
Credit Agreement, in the aggregate amount of $_______ (the "Requested
Borrowing"), to be made on ________ __, 20__ (the "Requested Borrowing
Date").
All capitalized terms used herein and not otherwise defined herein
having the meanings specified in the Construction Facility Credit Agreement.
I. WIRE TRANSFER INSTRUCTIONS
The Borrower hereby requests transfer of the amount of the Requested
Borrowing on the Requested Borrowing Date in accordance with the wire transfer
instructions set forth on Schedule I hereto.
II. CALCULATION OF REQUESTED BORROWING
The Borrower hereby represents and warrants that:
a. In accordance with Section 4.04(b) of the Common Agreement, the
aggregate principal amount of the Requested Borrowing does not exceed the
aggregate amount of outstanding Obligations (other than the repayment or
prepayment of any Construction Loans) and any Non-Excluded Taxes to be paid by
the Borrower, in each case, within the thirty (30) day period immediately
following the Requested Borrowing Date, as set forth on Schedule I hereto in the
aggregate.
b. The Accumulated Value is US$____________ and the Contract Price is
US$____________.
c. After giving effect to the Requested Borrowing, the amount of all
Construction Loans outstanding and all accrued but unpaid Debt Service in
respect of such Construction Loans does not exceed "X", calculated as follows:
X = (90% x C)
where
"C" is U.S.$___, which is the lesser of (i) Accumulated Value as of
the Requested Borrowing Date and (ii) the Contract Price as of the
Requested Borrowing Date.
d. Each of the conditions precedent to the making of the Requested
Borrowing are satisfied and shall remain satisfied on and as of the Requested
Borrowing Date.
e. The Borrower has delivered to the Intercreditor Agent all Monthly
Reports delivered to CFE pursuant to the Public Works Contract and all
certifications or other responses thereto received from CFE.
Very truly yours,
CONSTRUCTORA DE PROYECTOS
HIDROELECTRICOS, S.A. DE C.V.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE I
WIRE TRANSFER INSTRUCTIONS