ASSIGNMENT AND SECURITY AGREEMENT
among
[AAA CORPORATION]
as Borrower,
and
[BBB BANK]
not in its individual capacity but solely as Trustee
dated as of [•], 20[•]
TABLE OF CONTENTS
Section Page
1. Definitions; Interpretation 1
1.1 Terms Defined in Common Agreement. 1
1.2 Rules of Interpretation. 2
1.3 Certain Defined Terms. 2
1.4 Terms Defined in UCC. 3
2. Assignment and Grant of Security Interest 3
2.1 Assigned Revenues. 3
2.2 Secured Collateral. 3
2.3 Coverage by Mortgage. 7
2.4 Rights in Defective Insurance. 7
3. SUBSEQUENTLY ACQUIRED SECURED COLLATERAL 7
4. Consents and Acknowledgments 7
5. Representations and Warranties 8
5.1 Representations and Warranties. 8
5.2 Restatement. 10
6. Covenants 11
6.1 Defend Against Claims. 11
6.2 No Other Grant. 11
6.3 Taxes. 11
6.4 Place of Business; Records. 11
6.5 Notify Account Parties. 12
6.6 Protection of the Trustee’s Interests. 13
6.7 Protect Intellectual Property. 13
6.8 Notify Regarding Intellectual Property. 14
6.9 Patent, Trademark and Copyright Filings. 14
7. Further Assurances 14
8. Power of Attorney 15
8.1 Powers. 15
8.2 Event of Default: Borrower’s Abstention. 18
8.3 License to Use Intellectual Property. 18
9. Responsibility Under Contracts 18
10. Limits of Responsibility 19
11. Remedies 20
11.1 General Enforcement. 20
11.2 Sale, etc. 20
11.3 Costs of Remedies. 21
11.4 Assembly of Secured Collateral. 21
11.5 Take Possession of Secured Collateral. 21
11.6 Administration of Assigned Revenues and Secured Collateral. 21
11.7 Exercise Rights of the Borrower. 21
11.8 Claim Benefits of Assigned Revenues and Secured Collateral. 22
11.9 Execute Deeds of Conveyance. 22
11.10 Preparation and Condition of Secured Collateral. 22
11.11 Receivables. 22
11.12 Application of Cash. 22
11.13 Delivery to and Rights of Purchaser. 23
11.14 Manner of Sale of Secured Collateral. 23
12. Deficiency; Waiver of Claims; Etc. 24
12.1 Deficiency. 24
12.2 Independent Security. 24
12.3 Discontinuance of Proceedings. 25
12.4 Waiver. 25
12.5 Divestiture. 26
12.6 No Sale. 26
13. Miscellaneous 26
13.1 Payment of Expenses, Etc. 26
13.2 Notices. 26
13.3 No Waiver; Remedies Cumulative. 26
13.4 Severability. 27
13.5 No Amendments. 27
13.6 English Language. 28
13.7 Entire Agreement. 28
13.8 Waiver of Sovereign Immunity. 28
13.9 Governing Law; Submission To Jurisdiction; Venue; Waiver Of Jury Trial. 28
13.10 No Third Party Beneficiaries. 30
13.11 Assignments. 30
13.12 Special Exculpation, Indemnity. 30
13.13 Reinstatement. 31
13.14 Authority of the Trustee. 31
13.15 Continuing Security Interest; Termination. 32
SCHEDULES
SCHEDULE 1 PROJECT ACCOUNTS
SCHEDULE 2 CONTRACTS
SCHEDULE 3 FILINGS, REGISTRATIONS, ETC. RELATING TO ASSIGNED REVENUES
SCHEDULE 4 UCC FILING LOCATIONS; OTHER CONSENTS, FILINGS, REGISTRATIONS, ETC; OFFICE LOCATIONS FOR [•]; NAMES HELD IN THE LAST [•] YEARS
SCHEDULE 5 INTELLECTUAL PROPERTY
SCHEDULE 6 PROMISSORY NOTES AND OTHER INSTRUMENTS
ASSIGNMENT AND SECURITY AGREEMENT
This ASSIGNMENT AND SECURITY AGREEMENT (this “Agreement”), dated as of [•], 20 [•], is by and between [AAA], a corporation organized and existing under the laws of [Name of the Country](the “Borrower”), and [BBB], a national banking association, not in its individual capacity but only as the trustee for the Secured Parties under the Common Agreement referred to below (the “Trustee”).
RECITALS
A. The Borrower, the Senior Lenders and the Agents have entered into that certain Common Agreement dated as of [•], 20 [•] (the “Common Agreement”), which constitutes Volume2 of the Omnibus Agreement dated as of [•], 20 [•], among the Borrower, [CCC], [DDD], KEXIM, the [CCC] Facility CoFinancing Lenders, the [DDD] Facility Lenders and the Agents, Hedge Banks, Sponsors, Shareholders and other Persons party thereto, providing, subject to the terms and conditions thereof, for extensions of credit to the Borrower.
B. As provided in the Common Agreement, the Senior Lenders have agreed to make such extensions of credit to the Borrower for the purpose of designing, constructing, furnishing, installing, testing, commissioning, owning, operating and maintaining a [•] MW natural gas fired combined cycle generating plant with diesel fuel firing capability to be located at [Address].
C. In order to induce the Secured Parties to enter into, and as a condition precedent to the Initial Disbursement to the Borrower under, the Financing Documents, the Borrower has agreed to assign and grant a security interest in certain property to the Trustee, for the ratable benefit of the Secured Parties, to secure the Obligations as provided herein.
ACCORDINGLY, the parties hereto hereby agree as follows:
AGREEMENT
1. Definitions; Interpretation
1.1 Terms Defined in Common Agreement.
All capitalized terms used and not otherwise defined herein shall have the meanings assigned to those terms in the Common Agreement.
1.2 Rules of Interpretation.
Except as otherwise expressly provided herein, the rules of interpretation set forth in ExhibitB to the Common Agreement shall apply mutatis mutandis to this Agreement.
1.3 Certain Defined Terms.
As used in this Agreement, the following terms have the following meanings:
“Accounts” means each of the Project Accounts listed on Schedule1 and all substitutions and replacements thereof.
“Assigned Revenues” means (a)all proceeds of and monies payable to the Borrower, including as damages for breach or default, under (i)each of the Contracts, and (ii)each insurance policy maintained by the Borrower, and (b)(to the extent not covered by the foregoing) all Casualty Proceeds payable to or for the account of the Borrower.
“Contracts” means all of the contracts and agreements set forth on Schedule2 (including the benefit of all rights, securities or guarantees held by the Borrower in relation thereto) and all other contracts and agreements between the Borrower and one or more Persons (other than the Financing Documents that are not Hedging Facilities, the Deed and the Proponents’ Agreement).
“Copyrights” has the meaning set forth in Section2.2.4.
“Intellectual Property” has the meaning set forth in Section2.2.4.
“Jetty Contract Performance Bond” means the Performance Bond described in Article1 of the Jetty Construction Contract.
“Patents” has the meaning set forth in Section2.2.4.
“S/C Contracts Performance Securities” means, collectively, the Performance Security described in Clause1 of the Supply Contract and the Performance Security described in Clause1 of the Construction Contract.
“Secured Collateral” has the meaning set forth in Section2.2.
“Trademarks” has the meaning set forth in Section2.2.4.
“Trade Secrets” has the meaning set forth in Section2.2.4.
“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in [Name of the State].
1.4 Terms Defined in UCC.
Except as otherwise defined herein and unless the context requires otherwise, terms used in this Agreement shall have the meanings assigned to them in the UCC.
2. Assignment and Grant of Security Interest
2.1 Assigned Revenues.
To provide for the payment in full in cash when due, whether at stated maturity, by acceleration or otherwise, and performance in full when due, of the Obligations, the Borrower hereby assigns, conveys, transfers and sets over to the Trustee, absolutely and unconditionally, for the ratable benefit of the Secured Parties, all of the Borrower’s right, title and interest in, to and under the Assigned Revenues, whether now existing or owned or hereafter acquired or arising. The parties hereto acknowledge and agree that the assignment, conveyance, transfer and setting over of the Assigned Revenues hereunder shall constitute, for the purposes of [Name of the Country] law and all other purposes, a present, irrevocable and absolute assignment of the Assigned Revenues subject to no contingencies or conditions. The Assigned Revenues received pursuant to this Section2.1 shall be applied in accordance with the provisions of the Trust Agreement.
2.2 Secured Collateral.
As collateral security for the payment in full in cash when due, whether at stated maturity, by acceleration or otherwise, and performance in full when due, of the Obligations, the Borrower hereby assigns, charges, conveys, transfers and sets over to the Trustee for the ratable benefit of the Secured Parties, and grants to the Trustee for the ratable benefit of the Secured Parties a continuing first priority security interest in, all of the Borrower’s right, title and interest in, to and under the following, whether now existing or owned or hereafter from time to time acquired or arising, but not including the Assigned Revenues to the extent assigned, conveyed, transferred and set over pursuant to Section2.1 (the following, collectively, the “Secured Collateral”):
2.2.1 Contracts. The Contracts, including (a)all rights of the Borrower to receive and demand payment, or receive and compel performance, under or arising out of the Contracts, (b)all rights of the Borrower to receive any indemnity, warranty, guaranty or collateral security payments with respect to the Contracts, (c)all claims of the Borrower for damages arising out of or for breach of or default under the Contracts, and (d)all rights of the Borrower to exercise any election or option or to make any decision or determination or to give or receive any notice, consent, waiver or approval or to take any other action under or in respect of the Contracts (including the right to agree to the termination of any Contract or to any amendment or supplement to, or modification or waiver of, any of the terms and conditions thereof), as well as all the rights, powers, remedies and privileges on the part of the Borrower, whether arising under the Contracts, by statute, at law, in equity or otherwise, arising out of any breach, default or event of default thereunder.
2.2.2 Accounts. All securities accounts, deposit accounts or other accounts at any financial institution, including the Accounts, all funds on deposit in each such account, all securities, instruments, financial assets (as defined in Section8102(a)(9) of the UCC) or other property credited to such accounts, all investments made with or arising out of such funds, all claims thereunder or in connection therewith, and all cash, securities, rights and other property at any time and from time to time received, receivable, or otherwise distributed in respect of such accounts, such funds, or such investments.
2.2.3 Money. All monies now or at any time in the possession or under the control of, or in transit to, the Trustee, any other Secured Party, the Borrower, or any bailee, agent or custodian of the Trustee, any other Secured Party or the Borrower.
2.2.4 Intellectual Property. All (a)patents or equivalent rights and patent applications throughout the world, including any reissues, divisions, continuations, continuations-in-part, renewals, or extensions thereof (collectively, “Patents”), (b)copyrights, certificates of copyright, copyright registrations and related applications throughout the world and any renewals or extensions thereof (collectively, “Copyrights”), (c)trade names, domain names, trademarks, service marks, trade styles, fictitious business names, business names, business identities, Borrower names, business identifiers, prints, labels, trade styles, trade dress, designs, logos and trademark and service mark applications and registrations and, in each case, the product lines and goodwill of the business connected with the use of, and symbolized by, each such trade name, trademark and service mark (whether or not registered), and any renewals or extensions thereof (collectively, “Trademarks”), (d)trade secrets, knowhow, inventions, processes, production methods, customer lists or other proprietary or confidential information (collectively, “Trade Secrets”) and (e)all licenses, license rights, license agreements, permits, franchises, income, royalties, damages and payments now or hereafter due or payable under and with respect to any of the foregoing, including all rights to sue and recover for all past, present and future infringements or misappropriation, all rights to tax refunds to which the Borrower is now or hereafter entitled and all other rights of any kind whatsoever accruing or pertaining thereto, in each case under any Applicable Law (collectively, including the Patents, Copyrights, Trademarks and Trade Secrets, other than those which by their respective terms or by operation of Applicable Law would become void, voidable, terminable or revocable if assigned, conveyed, transferred, or set over hereunder or if a security interest therein were granted hereunder or with respect to which and to the extent that Applicable Law prohibits any such assignment, conveyance, transfer, setting over or granting of a security interest, “Intellectual Property”).
2.2.5 Approvals. All Government Approvals now or hereafter held in the name, or for the benefit, of the Borrower (other than any Government Approval which by its terms or by operation of Applicable Law would become void, voidable, terminable or revocable if assigned, conveyed, transferred, or set over hereunder or if a security interest therein were granted hereunder or with respect to which and to the extent that Applicable Law prohibits any such assignment, conveyance, transfer, setting over or granting of a security interest).
2.2.6 Insurance. All insurance and insurance policies, and all claims, proceeds, return premiums and other payments and rights with respect thereto, whether or not the Trustee is the loss payee thereof.
2.2.7 Other Accounts, General Intangibles, etc. All (a)other accounts and general intangibles, including all letters of credit and proceeds of such letters of credit (including the S/C Contracts Performance Securities and the Jetty Contract Performance Bond) and contribution, warranty, guaranty, surety, indemnity, loan, collateral security, interest rate swap, interest rate cap and other contracts of whatever kind or type (other than the Financing Documents that are not Hedging Facilities), all rights of the Borrower to payment or other performance under or arising out of such contracts and all letter of credit rights (including under the S/C Contracts Performance Securities and the Jetty Contract Performance Bond), all claims of the Borrower for damages arising out of or for breach of or default under such contracts, and all rights of the Borrower to exercise any election or option or to make any decision or determination or to give or receive any notice, consent, waiver or approval or to take any other action under or in respect of such contracts (including the right to agree to the termination of any such contract, or to any amendment to, or waiver of, any of the terms and conditions thereof), as well as all the rights, powers, remedies and privileges on the part of the Borrower, whether under such contracts, by statute, at law, in equity or otherwise, arising out of any breach, default or event of default thereunder, (b)other rights of the Borrower to payments, arising by operation of law or otherwise, no matter how evidenced or represented, (c)instruments, letters of credit, uncertificated securities, documents, documents of title and chattel paper and (d)rights, warranties, claims and benefits of the Borrower against any Person arising out of, relating to or in connection with all or any part of any documents of title and chattel paper, including any such rights, warranties, claims or benefits against any Person storing or transporting any goods relating to such documents of title or chattel paper or issuing any such documents.