Creation of Security. (a) Notwithstanding the provisions of Section 11.1 (Assignment), for the purpose of financing the Project in connection with the Financial Closing, the Seller may assign to, or create a security interest in favour of, the Lenders in the Seller’s rights, obligations and interests under or pursuant to (i) this Agreement, and the Guarantee, (ii) any other agreement or document included within or contemplated by the Project Agreements, (iii) the Complex, (iv) the Site, (v) the present and future movable, immovable, and intellectual property of the Seller, and (vi) the present and/or future revenues, actionable claims, debts or any of the rights or assets of the Seller, and (vii) any other present or future right, interest, property or asset of any kind and wherever situated. The Seller may also create security interests in its rights and assets identified in sub-items (iii) through (vii) in the preceding paragraph in favour of financial institutions acting as short-term creditors providing working capital or other short-term credit facilities required for its operations by the Seller or on the Complex for the purposes of the Seller Letter of Credit, subject to an unconditional undertaking furnished by the short-term creditors in favour of and delivered to AEDB (in form and content acceptable to AEDB) prior to the creation of any security interests stipulating that any such security interests on or in respect of the Transferrable Assets shall ipso facto stand vacated, released and cancelled upon payment of Compensation Amounts by the GOP to the Lenders (or to the Seller where applicable) pursuant to Article XV of this Agreement in connection with the transfer of the Transferable Assets to the GOP. (b) The Lenders shall have the rights expressly granted in their favour in this Agreement and the Direct Agreement. Except in respect of such rights, the Lenders shall not exercise any of the rights of the Seller under this Agreement, or the Guarantee (to the extent assigned or subject to a security interest pursuant to Section 11.2(a) unless and until such time as the Lenders (or the Agent) deliver a notice in writing to AEDB (the “Succession Notice”) specifying that the Lenders or their designee are exercising their rights to succeed to the Seller’s interest under this Agreement, or the Guarantee, as the case may be, whether by exercise of the rights or remedies of the Lenders under the Financing Documents to take control of and occupy or transfer the Complex or otherwise as contemplated by paragraph (c) below. The Succession Notice shall not be effective unless the AEDB shall have, not less than thirty (30) Days prior to the receipt of the Succession Notice, received from the Lenders (or the Agent) a notice (“Notice of Intent to Succeed”) specifying (i) the occurrence and continuance of an event of default under the Financing Documents; (ii) the intent of the Lenders to exercise their rights to succeed; and (iii) the anticipated date of issuance of the Succession Notice, which anticipated date shall not be earlier than thirty (30) Days following the date of receipt by AEDB of the Notice of Intent to Succeed. The Parties agree that the Notice of Intent to Succeed to the extent it relates to any succession rights of the Lenders under this Section 11.2 (Creation of Security) shall not be binding upon the Lenders or their designee and shall not constitute a Succession Notice. Within twenty (20) Days of receipt of the Notice of Intent to Succeed, the GOP shall notify the Lenders (or the Agent) of all Seller Events of Default (or events that with delivery of notice and the passage of time would become Seller Events of Default) which are, or after delivery of a Succession Notice would be, required to be cured by the Lenders or their designee in accordance with Section 11.2(c). Such notice by the AEDB to the Lenders (or the Agent) shall state (A) all amounts due to the AEDB and the GOP under this Agreement as at the date of such notice, (B) all amounts which may become due to the AEDB and the GOP under this Agreement as at the date of such notice and the events which have occurred under this Agreement and giving rise to such amounts, (C) all amounts claimed by the AEDB and the GOP under this Agreement as at the date of such notice which are then in dispute with the Seller, and (D) any additional amounts (contingent or otherwise) accruing as at the date of such notice under this Agreement until paid to the AEDB and the GOP and the events which have occurred under this Agreement giving rise to such amounts, together with formulae for determining such amounts. Such notice by the AEDB to the Lenders (or the Agent) may be updated by AEDB to re-quantify such amounts and/or identify any additional events and the amounts related thereto by further written notice or notices to the Lenders (or the Agent) at any time prior to the receipt of the Succession Notice by the AEDB under this Section 11.2(b). (c) Subject to Section 11.2(b) and (d), upon delivery of Succession Notice to the AEDB, the Lenders either directly or through their designee shall have the right, among others, to (A) take possession of the Complex and, prior to the Commercial Operations Date, complete construction and Commissioning of the Complex and after the Commercial Operations Date, operate and maintain the same and (B) cure any continuing Seller Event of Default as provided under Section 14.4 (Notice to the Lenders of the Seller’s Default) of this Agreement. With effect from the delivery to the AEDB of a Succession Notice until the delivery of a notice terminating the Lenders’ (or their designee’s) obligations pursuant to Section 11.2(f), the Lenders (or their designee, as the case may be) shall assume and enjoy the rights, powers and privileges and, subject to Section 11.2(g), shall become jointly and severally liable with the Seller to perform and discharge the obligations, liabilities and duties of the Seller under this Agreement, and the GOP shall perform and discharge the obligations, liabilities and duties of the GOP under this Agreement and the Guarantee as if the Lenders (or their designee) were an original party thereto on a joint and several basis with the Seller from the date of execution thereof; provided that during any such period, all notices, demands and other communications delivered to or made on AEDB in exercising the Seller’s rights under this Agreement shall only be delivered or made by the designee (as identified by the Agent in the Succession Notice) or the Agent (if a designee has not been so identified). Notwithstanding the foregoing, the Lenders (or their designee) shall have no obligation to cure any Seller Event of Default that is not capable of being cured, including, but not limited to, a default under Sections 14.1(a)(vi), (vii) or, (viii), provided that notice of such default was given in the Notice of Intent to Succeed specifying that in the Lenders’ view such default is not capable of being cured by the Lenders (or their designee), and no right will exist for the GOP to terminate this Agreement based upon any such Seller Events of Default occurring prior to the Succession Notice. (d) Upon succession by the Lenders or their designee to the Seller’s interest under this Agreement and the Guarantee in accordance with Section 11.2 (Creation of Security), the Lenders or their designee, as applicable, shall settle all amounts due and payable by the Seller (if any) and shall cure all defaults by the Seller under this Agreement within the Extended Cure Period (other than those that are not required to be cured pursuant to Section 11.2(c)) arising during the period prior to the Lenders’ or their designee’s succession to the Seller’s interest under this Agreement and the Guarantee, and that were notified by the AEDB to the Lenders (or their Agent or designee) in writing on or before the delivery of the Succession Notice in accordance with Section 11.2(b); provided, however, that the aggregate liability of the Lenders or their designee, as the case may be, shall strictly be limited to the Seller’s and the Lenders’ or their designee’s ownership, contractual rights and security interest in the Complex, and; provided further, that the Lenders or their designee, as the case may be, shall have no liability for breaches of the Seller arising prior to the delivery of a Succession Notice other than to cure the breaches notified by AEDB pursuant to Section 11.2(b), and the liability of the Lenders or their designee to the GOP in respect of all liabilities of the Seller under or relating to this Agreement prior to the delivery of a Succession Notice shall not exceed the total amount specified by AEDB in the latest notice delivered by AEDB to the Lenders (or the Agent or their designee) in accordance with Section 11.2(b), as such amount may be adjusted in accordance with the formulae specified by AEDB in such notice. (e) Except as otherwise set forth in this Section 11.2 (Creation of Security), neither the Lenders, the Agent nor the Lenders’ designee shall be liable for the performance or observance of any of the obligations or duties of the Seller under this Agreement, nor shall the assignment by the Seller of this Agreement or the Guarantee (or any other agreement or document included within or contemplated by the Project Agreements, to the extent assignable) to the Lenders pursuant to Section 11.2 (Creation of Security) give rise to any duties or obligations whatsoever on the part of any of the Lenders, the Agent or their designee owing to AEDB or the GOP. (f) The Lenders or their designee may at any time following the delivery of a Succession Notice give AEDB on behalf of the GOP notice terminating the Lenders’ or their designee’s obligations and rights under this Agreement and the Guarantee (without affecting the continuation of the Seller’s obligations towards the GOP thereunder). Such notice shall designate a date on which the Lenders’ or their designee’s obligations and rights will terminate and on and after such designated date the Lenders or their designee shall be released from all obligations and liabilities thereunder (other than those obligations and liabilities which have arisen prior to such designated date). Upon such designated date, subject to the expiration of the applicable cure period provided in Section 14.4 (Notice to the Lenders of the Seller’s Default), AEDB (acting for itself and the GOP) may exercise without restriction all of its rights under this Agreement. (g) Subject to this Section 11.2 (Creation of Security) but without the requirement of obtaining any further consent from the AEDB (acting for itself and the GOP), upon the exercise by the Lenders or their designee of any of the remedies set forth in the Financing Documents, the Lenders may assign or transfer by novation their rights and interests and the rights of the Seller under this Agreement and the Guarantee (or any other agreement or document included within or contemplated by the Project Agreements, to the extent assignable) to any Transferee (hereinafter defined) so long as such Transferee shall assume in writing for the benefit of the GOP (and for the benefit of the relevant party under any other agreement or document included within or contemplated by the Project Agreements) all of the obligations of the Seller under this Agreement, provided that the Transferee shall not be liable for any outstanding obligations under this Agreement which were not disclosed by AEDB to the Lenders or the Agent in accordance with Section 11.2(b). Upon such assignment or transfer and assumption, the Lenders the Agent or their designee and the Seller, as the case may be, shall be relieved of all obligations assigned or transferred to and assumed by a Transferee under this Agreement. (h) Upon notice to the AEDB from Lenders or the Agent of the Lenders’ assignment or transfer by novation to a Transferee, as set out in Section 11.2(g) above, the AEDB shall effect on behalf of the GOP the transfer of the Seller’s rights and obligations under this Agreement and the Seller’s rights and obligations under the Guarantee to a Transferee. (i) As used herein, a “Transferee” shall be a person who (i) either is an experienced solar power plant operator or shall have agreed to engage the services of a person who is an experienced solar power plant operator, (ii) shall have paid all amounts, if any, then due and payable to the GOP under this Agreement, (iii) shall have expressly assumed in writing for the benefit of the GOP the obligations of the Seller under this Agreement including (but not limited to) the obligation of the Seller to maintain and operate the Complex in accordance with the requirements of the Energy Purchase Agreement, (iv) has not been objected to by AEDB in a written notice delivered by AEDB to the Lenders not later than ten (10) Days after the Lenders have delivered notice identifying the Transferee to AEDB on the basis that a majority of the capital of the Transferee is held or controlled by persons of a nationality that the GOP reasonably considers to be prejudicial to the national security of Pakistan, (v) is a corporate body established in Pakistan, and (vi) shall have procured from any Relevant Authority or any Public Sector Entity, any prior approvals that may be required under the Laws of Pakistan to acquire interests pursuant to such assignment or transfer and a written notice of such approvals shall have been delivered to the AEDB and the AEDB shall not have objected thereto within ten (10) Days of receipt of such written notice. (j) With respect to all Seller Consents issued by the GOP or any Relevant Authority, the GOP shall not, and the GOP shall ensure that no Relevant Authority shall, exercise any power under Section 5.2 (Conditions to Seller Consents) unless the Lenders shall have first been given written notice of such failure (which notice shall specify, in reasonable detail, the nature of such failure) and the Lenders or their designee are given the opportunity and fail within a reasonable period of time after receipt of such notice to so rectify, remedy or cure such failure, which period shall not in any event exceed the cure period provided to the Seller or to the Contractors, as the case may be, under Section 5.2 (Conditions to Seller Consents). The GOP shall ensure that, in connection with any transfer or sale of the Complex or the shares of the Seller to the Lenders or their designee, as applicable, to any Transferee, each Seller Consent issued by the GOP or any Relevant Authority shall be transferred or, if unable to be transferred for any reason, shall be re-issued in the same form to the Lenders, or their designee or the Transferee, as applicable. Subject to Section 11.2(g), the GOP shall ensure that such transfer or re-issuance is made within the period of time, if any, prescribed by applicable Laws of Pakistan as applied in a non-discriminatory manner pursuant to Section 12.1 (Assurance Against Discriminatory Action) and, in any event, within one hundred and eighty (180) Days after the date of proper and complete application therefor. Subject to 11.2(g), provided that the Seller shall have requested in writing from a Relevant Authority its consent to any security interest in any Seller Consent granted or to be granted by such Relevant Authority to the Lenders or the Agent and shall have diligently pursued obtaining the consent of such Relevant Authority to such security interest, the GOP hereby covenants and shall procure that such Relevant Authority consents to the grant by the Seller to the Lenders or the Agent of a security interest in any such Seller Consent to the extent that such Consent is assignable to the Lenders or the Agent by way of security, and such security interest is available, under the Laws of Pakistan. (k) Upon receipt of the Notice of Intent to Succeed, the GOP shall, at the request and expense of the Lenders or the Agent, cooperate with the Lenders or the Agent in the exercise of their rights under this Section 11.2 (Creation of Security). (l) At the request of the Seller, delivered to the AEDB no less than thirty (30) Days in advance, the GOP shall execute and deliver, effective at the Financial Closing, the Direct Agreement with the Seller and the Lenders including acknowledgements to
Appears in 1 contract
Sources: Implementation Agreement
Creation of Security. (a) Notwithstanding the provisions of Section 11.1 (Assignment), for the purpose of financing the Project in connection with the Financial Closing, the Seller may assign to, or create a security interest in favour of, the Lenders in the Seller’s rights, obligations and interests under or pursuant to (i) this Agreement, the Guarantee and the GuaranteeSite Lease, (ii) any other agreement or document included within or contemplated by the Project Agreements, (iii) the Complex, (iv) the Site, (v) the present and future movable, immovable, and intellectual property of the Seller, and (vi) the present and/or future revenues, actionable claims, debts or any of the rights or assets of the Seller, and (vii) any other present or future right, interest, property or asset of any kind and wherever situated. , [provided, however, unless caused by a GOP Event of Default, the enforcement of any security interest by the Lenders (or the short term creditors) in respect of the Site Lease shall not in and of itself constitute a GOP Event of Default under Sections 14.1(b)(iv) or 14.1(b)(v).] The Seller may also create security interests in its rights and assets identified in sub-items (iii) through (vii) in the preceding paragraph in favour of financial institutions acting as short-term creditors providing working capital or other short-term credit facilities required for its operations by the Seller or on the Complex for the purposes of the Seller Letter of Credit, subject to an unconditional undertaking furnished by the short-term creditors in favour of and delivered to AEDB (in form and content acceptable to AEDB) prior to the creation of any security interests stipulating that any such security interests on or in respect of the Transferrable Assets shall ipso facto stand vacated, released and cancelled upon payment of Compensation Amounts by the GOP to the Lenders (or to the Seller where applicable) pursuant to Article XV of this Agreement in connection with the transfer of the Transferable Assets to the GOP.
(b) . The Lenders shall have the rights expressly granted in their favour in this Agreement and the Direct Agreement. Except in respect of such rights, the Lenders shall not exercise any of the rights of the Seller under this Agreement, the Guarantee or the Guarantee Site Lease (to the extent assigned or subject to a security interest pursuant to Section 11.2(a) unless and until such time as the Lenders (or the Agent) deliver a notice in writing to AEDB (the “Succession Notice”) specifying that the Lenders or their designee are exercising their rights to succeed to the Seller’s interest under this Agreement, the Guarantee or the GuaranteeSite Lease, as the case may be, whether by exercise of the rights or remedies of the Lenders under the Financing Documents to take control of and occupy or transfer the Complex or otherwise as contemplated by paragraph (c) below. The Succession Notice shall not be effective unless the AEDB shall have, not less than thirty (30) Days prior to the receipt of the Succession Notice, received from the Lenders (or the Agent) a notice (“Notice of Intent to Succeed”) specifying (i) the occurrence and continuance of an event of default under the Financing Documents; (ii) the intent of the Lenders to exercise their rights to succeed; and (iii) the anticipated date of issuance of the Succession Notice, which anticipated date shall not be earlier than thirty (30) Days following the date of receipt by AEDB of the Notice of Intent to Succeed. The Parties agree that the Notice of Intent to Succeed to the extent it relates to any succession rights of the Lenders under this Section 11.2 (Creation of Security) shall not be binding upon the Lenders or their designee and shall not constitute a Succession Notice. Within twenty (20) Days of receipt of the Notice of Intent to Succeed, the GOP shall notify the Lenders (or the Agent) of all Seller Events of Default (or events that with delivery of notice and the passage of time would become Seller Events of Default) which are, or after delivery of a Succession Notice would be, required to be cured by the Lenders or their designee in accordance with Section 11.2(c). Such notice by the AEDB to the Lenders (or the Agent) shall state (A) all amounts due to the AEDB and the GOP under this Agreement as at the date of such notice, (B) all amounts which may become due to the AEDB and the GOP under this Agreement as at the date of such notice and the events which have occurred under this Agreement and giving rise to such amounts, (C) all amounts claimed by the AEDB and the GOP under this Agreement as at the date of such notice which are then in dispute with the Seller, and (D) any additional amounts (contingent or otherwise) accruing as at the date of such notice under this Agreement until paid to the AEDB and the GOP and the events which have occurred under this Agreement giving rise to such amounts, together with formulae for determining such amounts, and (E) to the extent AEDB is able to ascertain, any amounts (contingent or otherwise, disputed and undisputed) due to the [Provincial Government] / [GOAJ&K] under the Site Lease. Such notice by the AEDB to the Lenders (or the Agent) may be updated by AEDB to re-quantify such amounts and/or identify any additional events and the amounts related thereto by further written notice or notices to the Lenders (or the Agent) at any time prior to the receipt of the Succession Notice by the AEDB under this Section 11.2(b).
(c) . Subject to Section 11.2(b) and (d), upon delivery of Succession Notice to the AEDB, the Lenders either directly or through their designee shall have the right, among others, to (A) take possession of the Complex and, prior to the Commercial Operations Date, complete construction and Commissioning of the Complex and after the Commercial Operations Date, operate and maintain the same and (B) cure any continuing Seller Event of Default as provided under Section 14.4 (Notice to the Lenders of the Seller’s Default) of this Agreement. With effect from the delivery to the AEDB of a Succession Notice until the delivery of a notice terminating the Lenders’ (or their designee’s) obligations pursuant to Section 11.2(f), the Lenders (or their designee, as the case may be) shall assume and enjoy the rights, powers and privileges and, subject to Section 11.2(g), shall become jointly and severally liable with the Seller to perform and discharge the obligations, liabilities and duties of the Seller under this Agreement, Agreement and the Site Lease and the GOP shall perform and discharge the obligations, liabilities and duties of the GOP under this Agreement and the Guarantee as if the Lenders (or their designee) were an original party thereto on a joint and several basis with the Seller from the date of execution thereof; provided that during any such period, all notices, demands and other communications delivered to or made on AEDB in exercising the Seller’s rights under this Agreement shall only be delivered or made by the designee (as identified by the Agent in the Succession Notice) or the Agent (if a designee has not been so identified). Notwithstanding the foregoing, the Lenders (or their designee) shall have no obligation to cure any Seller Event of Default that is not capable of being cured, including, but not limited to, a default under Sections 14.1(a)(vi), (vii) or, (viii), provided that notice of such default was given in the Notice of Intent to Succeed specifying that in the Lenders’ view such default is not capable of being cured by the Lenders (or their designee), and no right will exist for the GOP to terminate this Agreement based upon any such Seller Events of Default occurring prior to the Succession Notice.
(d) . Upon succession by the Lenders or their designee to the Seller’s interest under this Agreement and the Guarantee in accordance with Section 11.2 (Creation of Security), the Lenders or their designee, as applicable, shall settle all amounts due and payable by the Seller (if any) and shall cure all defaults by the Seller under this Agreement within the Extended Cure Period (other than those that are not required to be cured pursuant to Section 11.2(c)) arising during the period prior to the Lenders’ or their designee’s succession to the Seller’s interest under this Agreement and the Guarantee, and that were notified by the AEDB to the Lenders (or their Agent or designee) in writing on or before the delivery of the Succession Notice in accordance with Section 11.2(b); provided, however, that the aggregate liability of the Lenders or their designee, as the case may be, shall strictly be limited to the Seller’s and the Lenders’ or their designee’s ownership, contractual rights and security interest in the Complex, and; provided further, that the Lenders or their designee, as the case may be, shall have no liability for breaches of the Seller arising prior to the delivery of a Succession Notice other than to cure the breaches notified by AEDB pursuant to Section 11.2(b), and the liability of the Lenders or their designee to the GOP in respect of all liabilities of the Seller under or relating to this Agreement prior to the delivery of a Succession Notice shall not exceed the total amount specified by AEDB in the latest notice delivered by AEDB to the Lenders (or the Agent or their designee) in accordance with Section 11.2(b), as such amount may be adjusted in accordance with the formulae specified by AEDB in such notice.
(e) . Except as otherwise set forth in this Section 11.2 (Creation of Security), neither the Lenders, the Agent nor the Lenders’ designee shall be liable for the performance or observance of any of the obligations or duties of the Seller under this Agreement, nor shall the assignment by the Seller of this Agreement or the Guarantee (or any other agreement or document included within or contemplated by the Project Agreements, to the extent assignable) to the Lenders pursuant to Section 11.2 (Creation of Security) give rise to any duties or obligations whatsoever on the part of any of the Lenders, the Agent or their designee owing to AEDB or the GOP.
(f) . The Lenders or their designee may at any time following the delivery of a Succession Notice give AEDB on behalf of the GOP notice terminating the Lenders’ or their designee’s obligations and rights under this Agreement and the Guarantee (without affecting the continuation of the Seller’s obligations towards the GOP thereunder). Such notice shall designate a date on which the Lenders’ or their designee’s obligations and rights will terminate and on and after such designated date the Lenders or their designee shall be released from all obligations and liabilities thereunder (other than those obligations and liabilities which have arisen prior to such designated date). Upon such designated date, subject to the expiration of the applicable cure period provided in Section 14.4 (Notice to the Lenders of the Seller’s Default), AEDB (acting for itself and the GOP) may exercise without restriction all of its rights under this Agreement.
(g) . Subject to this Section 11.2 (Creation of Security) but without the requirement of obtaining any further consent from the AEDB (acting for itself and the GOP), upon the exercise by the Lenders or their designee of any of the remedies set forth in the Financing Documents, the Lenders may assign or transfer by novation their rights and interests and the rights of the Seller under this Agreement and the Guarantee (or any other agreement or document included within or contemplated by the Project Agreements, to the extent assignable) to any Transferee (hereinafter defined) so long as such Transferee shall assume in writing for the benefit of the GOP (and for the benefit of the relevant party under any other agreement or document included within or contemplated by the Project Agreements) all of the obligations of the Seller under this Agreement, provided that the Transferee shall not be liable for any outstanding obligations under this Agreement which were not disclosed by AEDB to the Lenders or the Agent in accordance with Section 11.2(b). Upon such assignment or transfer and assumption, the Lenders the Agent or their designee and the Seller, as the case may be, shall be relieved of all obligations assigned or transferred to and assumed by a Transferee under this Agreement.
(h) . Upon notice to the AEDB from Lenders or the Agent of the Lenders’ assignment or transfer by novation to a Transferee, as set out in Section 11.2(g) above, the AEDB shall effect on behalf of the GOP the transfer of the Seller’s rights and obligations under this Agreement and the Seller’s rights and obligations under the Guarantee to a Transferee.
(i) . As used herein, a “Transferee” shall be a person who (i) either is an experienced solar hydro power plant operator or shall have agreed to engage the services of a person who is an experienced solar hydro power plant operator, (ii) shall have paid all amounts, if any, then due and payable to the GOP under this Agreement, (iii) shall have expressly assumed in writing for the benefit of the GOP the obligations of the Seller under this Agreement including (but not limited to) the obligation of the Seller to maintain and operate the Complex in accordance with the requirements of the Energy Purchase AgreementAgreement and the Site Lease, (iv) has not been objected to by AEDB in a written notice delivered by AEDB to the Lenders not later than ten (10) Days after the Lenders have delivered notice identifying the Transferee to AEDB on the basis that a majority of the capital of the Transferee is held or controlled by persons of a nationality that the GOP reasonably considers to be prejudicial to the national security of Pakistan, (v) is a corporate body established in Pakistan, and (vi) shall have procured from any Relevant Authority or any Public Sector Entity, any prior approvals that may be required under the Laws of Pakistan to acquire interests pursuant to such assignment or transfer and a written notice of such approvals shall have been delivered to the AEDB and the AEDB shall not have objected thereto within ten (10) Days of receipt of such written notice.
(j) . With respect to all Seller Consents issued by the GOP or any Relevant Authority, the GOP shall not, and the GOP shall ensure that no Relevant Authority shall, exercise any power under Section 5.2 (Conditions to Seller Consents) unless the Lenders shall have first been given written notice of such failure (which notice shall specify, in reasonable detail, the nature of such failure) and the Lenders or their designee are given the opportunity and fail within a reasonable period of time after receipt of such notice to so rectify, remedy or cure such failure, which period shall not in any event exceed the cure period provided to the Seller or to the Contractors, as the case may be, under Section 5.2 (Conditions to Seller Consents). The GOP shall ensure that, in connection with any transfer or sale of the Complex or the shares of the Seller to the Lenders or their designee, as applicable, to any Transferee, each Seller Consent issued by the GOP or any Relevant Authority shall be transferred or, if unable to be transferred for any reason, shall be re-issued in the same form to the Lenders, or their designee or the Transferee, as applicable. Subject to Section 11.2(g), the GOP shall ensure that such transfer or re-issuance is made within the period of time, if any, prescribed by applicable Laws of Pakistan as applied in a non-discriminatory manner pursuant to Section 12.1 (Assurance Against Discriminatory Action) and, in any event, within one hundred and eighty (180) Days after the date of proper and complete application therefor. Subject to 11.2(g), provided that the Seller shall have requested in writing from a Relevant Authority its consent to any security interest in any Seller Consent granted or to be granted by such Relevant Authority to the Lenders or the Agent and shall have diligently pursued obtaining the consent of such Relevant Authority to such security interest, the GOP hereby covenants and shall procure that such Relevant Authority consents to the grant by the Seller to the Lenders or the Agent of a security interest in any such Seller Consent to the extent that such Consent is assignable to the Lenders or the Agent by way of security, and such security interest is available, under the Laws of Pakistan.
(k) . Upon receipt of the Notice of Intent to Succeed, the GOP shall, at the request and expense of the Lenders or the Agent, cooperate with the Lenders or the Agent in the exercise of their rights under this Section 11.2 (Creation of Security).
(l) At the request of the Seller, delivered to the AEDB no less than thirty (30) Days in advance, the GOP shall execute and deliver, effective at the Financial Closing, the Direct Agreement with the Seller and the Lenders including acknowledgements toe
Appears in 1 contract
Sources: Implementation Agreement
Creation of Security. (a) Notwithstanding the provisions of Section 11.1 (Assignment), for the purpose of financing the Project in connection with the Financial Closing, the Seller may assign to, or create a security interest in favour of, the Lenders in the Seller’s rights, obligations and interests under or pursuant to (i) this Agreement, the Guarantee and the GuaranteeSite Lease, (ii) any other agreement or document included within or contemplated by the Project Agreements, (iii) the Complex, (iv) the Site, (v) the present and future movable, immovable, and intellectual property of the Seller, and (vi) the present and/or future revenues, actionable claims, debts or any of the rights or assets of the Seller, and (vii) any other present or future right, interest, property or asset of any kind and wherever situated. , [provided, however, unless caused by a GOP Event of Default, the enforcement of any security interest by the Lenders (or the short term creditors) in respect of the Site Lease shall not in and of itself constitute a GOP Event of Default under Sections 14.1(b)(iv) or 14.1(b)(v).] The Seller may also create security interests in its rights and assets identified in sub-items (iii) through (vii) in the preceding paragraph in favour of financial institutions acting as short-term creditors providing working capital or other short-term credit facilities required for its operations by the Seller or on the Complex for the purposes of the Seller Letter of Credit, subject to an unconditional undertaking furnished by the short-term creditors in favour of and delivered to AEDB (in form and content acceptable to AEDB) prior to the creation of any security interests stipulating that any such security interests on or in respect of the Transferrable Assets shall ipso facto stand vacated, released and cancelled upon payment of Compensation Amounts by the GOP to the Lenders (or to the Seller where applicable) pursuant to Article XV of this Agreement in connection with the transfer of the Transferable Assets to the GOP.
(b) The Lenders shall have the rights expressly granted in their favour in this Agreement and the Direct Agreement. Except in respect of such rights, the Lenders shall not exercise any of the rights of the Seller under this Agreement, the Guarantee or the Guarantee Site Lease (to the extent assigned or subject to a security interest pursuant to Section 11.2(a) unless and until such time as the Lenders (or the Agent) deliver a notice in writing to AEDB (the “Succession Notice”) specifying that the Lenders or their designee are exercising their rights to succeed to the Seller’s interest under this Agreement, the Guarantee or the GuaranteeSite Lease, as the case may be, whether by exercise of the rights or remedies of the Lenders under the Financing Documents to take control of and occupy or transfer the Complex or otherwise as contemplated by paragraph (c) below. The Succession Notice shall not be effective unless the AEDB shall have, not less than thirty (30) Days prior to the receipt of the Succession Notice, received from the Lenders (or the Agent) a notice (“Notice of Intent to Succeed”) specifying specifying
(i) the occurrence and continuance of an event of default under the Financing Documents; (ii) the intent of the Lenders to exercise their rights to succeed; and (iii) the anticipated date of issuance of the Succession Notice, which anticipated date shall not be earlier than thirty (30) Days following the date of receipt by AEDB of the Notice of Intent to Succeed. The Parties agree that the Notice of Intent to Succeed to the extent it relates to any succession rights of the Lenders under this Section 11.2 (Creation of Security) shall not be binding upon the Lenders or their designee and shall not constitute a Succession Notice. Within twenty (20) Days of receipt of the Notice of Intent to Succeed, the GOP shall notify the Lenders (or the Agent) of all Seller Events of Default (or events that with delivery of notice and the passage of time would become Seller Events of Default) which are, or after delivery of a Succession Notice would be, required to be cured by the Lenders or their designee in accordance with Section 11.2(c). Such notice by the AEDB to the Lenders (or the Agent) shall state (A) all amounts due to the AEDB and the GOP under this Agreement as at the date of such notice, (B) all amounts which may become due to the AEDB and the GOP under this Agreement as at the date of such notice and the events which have occurred under this Agreement and giving rise to such amounts, (C) all amounts claimed by the AEDB and the GOP under this Agreement as at the date of such notice which are then in dispute with the Seller, and (D) any additional amounts (contingent or otherwise) accruing as at the date of such notice under this Agreement until paid to the AEDB and the GOP and the events which have occurred under this Agreement giving rise to such amounts, together with formulae for determining such amounts. Such notice by the AEDB to the Lenders (or the Agent) may be updated by AEDB to re-quantify such amounts and/or identify any additional events and the amounts related thereto by further written notice or notices to the Lenders (or the Agent) at any time prior to the receipt of the Succession Notice by the AEDB under this Section 11.2(b).
(c) Subject to Section 11.2(b) and (d), upon delivery of Succession Notice to the AEDB, the Lenders either directly or through their designee shall have the right, among others, to (A) take possession of the Complex and, prior to the Commercial Operations Date, complete construction and Commissioning of the Complex and after the Commercial Operations Date, operate and maintain the same and (B) cure any continuing Seller Event of Default as provided under Section 14.4 (Notice to the Lenders of the Seller’s Default) of this Agreement. With effect from the delivery to the AEDB of a Succession Notice until the delivery of a notice terminating the Lenders’ (or their designee’s) obligations pursuant to Section 11.2(f), the Lenders (or their designee, as the case may be) shall assume and enjoy the rights, powers and privileges and, subject to Section 11.2(g), shall become jointly and severally liable with the Seller to perform and discharge the obligations, liabilities and duties of the Seller under this Agreement, and the GOP shall perform and discharge the obligations, liabilities and duties of the GOP under this Agreement and the Guarantee as if the Lenders (or their designee) were an original party thereto on a joint and several basis with the Seller from the date of execution thereof; provided that during any such period, all notices, demands and other communications delivered to or made on AEDB in exercising the Seller’s rights under this Agreement shall only be delivered or made by the designee (as identified by the Agent in the Succession Notice) or the Agent (if a designee has not been so identified). Notwithstanding the foregoing, the Lenders (or their designee) shall have no obligation to cure any Seller Event of Default that is not capable of being cured, including, but not limited to, a default under Sections 14.1(a)(vi), (vii) or, (viii), provided that notice of such default was given in the Notice of Intent to Succeed specifying that in the Lenders’ view such default is not capable of being cured by the Lenders (or their designee), and no right will exist for the GOP to terminate this Agreement based upon any such Seller Events of Default occurring prior to the Succession Notice.
(d) Upon succession by the Lenders or their designee to the Seller’s interest under this Agreement and the Guarantee in accordance with Section 11.2 (Creation of Security), the Lenders or their designee, as applicable, shall settle all amounts due and payable by the Seller (if any) and shall cure all defaults by the Seller under this Agreement within the Extended Cure Period (other than those that are not required to be cured pursuant to Section 11.2(c)) arising during the period prior to the Lenders’ or their designee’s succession to the Seller’s interest under this Agreement and the Guarantee, and that were notified by the AEDB to the Lenders (or their Agent or designee) in writing on or before the delivery of the Succession Notice in accordance with Section 11.2(b); provided, however, that the aggregate liability of the Lenders or their designee, as the case may be, shall strictly be limited to the Seller’s and the Lenders’ or their designee’s ownership, contractual rights and security interest in the Complex, and; provided further, that the Lenders or their designee, as the case may be, shall have no liability for breaches of the Seller arising prior to the delivery of a Succession Notice other than to cure the breaches notified by AEDB pursuant to Section 11.2(b), and the liability of the Lenders or their designee to the GOP in respect of all liabilities of the Seller under or relating to this Agreement prior to the delivery of a Succession Notice shall not exceed the total amount specified by AEDB in the latest notice delivered by AEDB to the Lenders (or the Agent or their designee) in accordance with Section 11.2(b), as such amount may be adjusted in accordance with the formulae specified by AEDB in such notice.
(e) Except as otherwise set forth in this Section 11.2 (Creation of Security), neither the Lenders, the Agent nor the Lenders’ designee shall be liable for the performance or observance of any of the obligations or duties of the Seller under this Agreement, nor shall the assignment by the Seller of this Agreement or the Guarantee (or any other agreement or document included within or contemplated by the Project Agreements, to the extent assignable) to the Lenders pursuant to Section 11.2 (Creation of Security) give rise to any duties or obligations whatsoever on the part of any of the Lenders, the Agent or their designee owing to AEDB or the GOP.
(f) The Lenders or their designee may at any time following the delivery of a Succession Notice give AEDB on behalf of the GOP notice terminating the Lenders’ or their designee’s obligations and rights under this Agreement and the Guarantee (without affecting the continuation of the Seller’s obligations towards the GOP thereunder). Such notice shall designate a date on which the Lenders’ or their designee’s obligations and rights will terminate and on and after such designated date the Lenders or their designee shall be released from all obligations and liabilities thereunder (other than those obligations and liabilities which have arisen prior to such designated date). Upon such designated date, subject to the expiration of the applicable cure period provided in Section 14.4 (Notice to the Lenders of the Seller’s Default), AEDB (acting for itself and the GOP) may exercise without restriction all of its rights under this Agreement.
(g) Subject to this Section 11.2 (Creation of Security) but without the requirement of obtaining any further consent from the AEDB (acting for itself and the GOP), upon the exercise by the Lenders or their designee of any of the remedies set forth in the Financing Documents, the Lenders may assign or transfer by novation their rights and interests and the rights of the Seller under this Agreement and the Guarantee (or any other agreement or document included within or contemplated by the Project Agreements, to the extent assignable) to any Transferee (hereinafter defined) so long as such Transferee shall assume in writing for the benefit of the GOP (and for the benefit of the relevant party under any other agreement or document included within or contemplated by the Project Agreements) all of the obligations of the Seller under this Agreement, provided that the Transferee shall not be liable for any outstanding obligations under this Agreement which were not disclosed by AEDB to the Lenders or the Agent in accordance with Section 11.2(b). Upon such assignment or transfer and assumption, the Lenders the Agent or their designee and the Seller, as the case may be, shall be relieved of all obligations assigned or transferred to and assumed by a Transferee under this Agreement.
(h) Upon notice to the AEDB from Lenders or the Agent of the Lenders’ assignment or transfer by novation to a Transferee, as set out in Section 11.2(g) above, the AEDB shall effect on behalf of the GOP the transfer of the Seller’s rights and obligations under this Agreement and the Seller’s rights and obligations under the Guarantee to a Transferee.
(i) As used herein, a “Transferee” shall be a person who (i) either is an experienced solar power plant operator or shall have agreed to engage the services of a person who is an experienced solar power plant operator, (ii) shall have paid all amounts, if any, then due and payable to the GOP under this Agreement, (iii) shall have expressly assumed in writing for the benefit of the GOP the obligations of the Seller under this Agreement including (but not limited to) the obligation of the Seller to maintain and operate the Complex in accordance with the requirements of the Energy Purchase Agreement, (iv) has not been objected to by AEDB in a written notice delivered by AEDB to the Lenders not later than ten (10) Days after the Lenders have delivered notice identifying the Transferee to AEDB on the basis that a majority of the capital of the Transferee is held or controlled by persons of a nationality that the GOP reasonably considers to be prejudicial to the national security of Pakistan, (v) is a corporate body established in Pakistan, and (vi) shall have procured from any Relevant Authority or any Public Sector Entity, any prior approvals that may be required under the Laws of Pakistan to acquire interests pursuant to such assignment or transfer and a written notice of such approvals shall have been delivered to the AEDB and the AEDB shall not have objected thereto within ten (10) Days of receipt of such written notice.
(j) With respect to all Seller Consents issued by the GOP or any Relevant Authority, the GOP shall not, and the GOP shall ensure that no Relevant Authority shall, exercise any power under Section 5.2 (Conditions to Seller Consents) unless the Lenders shall have first been given written notice of such failure (which notice shall specify, in reasonable detail, the nature of such failure) and the Lenders or their designee are given the opportunity and fail within a reasonable period of time after receipt of such notice to so rectify, remedy or cure such failure, which period shall not in any event exceed the cure period provided to the Seller or to the Contractors, as the case may be, under Section 5.2 (Conditions to Seller Consents). The GOP shall ensure that, in connection with any transfer or sale of the Complex or the shares of the Seller to the Lenders or their designee, as applicable, to any Transferee, each Seller Consent issued by the GOP or any Relevant Authority shall be transferred or, if unable to be transferred for any reason, shall be re-issued in the same form to the Lenders, or their designee or the Transferee, as applicable. Subject to Section 11.2(g), the GOP shall ensure that such transfer or re-issuance is made within the period of time, if any, prescribed by applicable Laws of Pakistan as applied in a non-discriminatory manner pursuant to Section 12.1 (Assurance Against Discriminatory Action) and, in any event, within one hundred and eighty (180) Days after the date of proper and complete application therefor. Subject to 11.2(g), provided that the Seller shall have requested in writing from a Relevant Authority its consent to any security interest in any Seller Consent granted or to be granted by such Relevant Authority to the Lenders or the Agent and shall have diligently pursued obtaining the consent of such Relevant Authority to such security interest, the GOP hereby covenants and shall procure that such Relevant Authority consents to the grant by the Seller to the Lenders or the Agent of a security interest in any such Seller Consent to the extent that such Consent is assignable to the Lenders or the Agent by way of security, and such security interest is available, under the Laws of Pakistan.
(k) Upon receipt of the Notice of Intent to Succeed, the GOP shall, at the request and expense of the Lenders or the Agent, cooperate with the Lenders or the Agent in the exercise of their rights under this Section 11.2 (Creation of Security).
(l) At the request of the Seller, delivered to the AEDB no less than thirty (30) Days in advance, the GOP shall execute and deliver, effective at the Financial Closing, the Direct Agreement with the Seller and the Lenders including acknowledgements to
Appears in 1 contract
Sources: Implementation Agreement
Creation of Security. (a) Notwithstanding the provisions of Section 11.1 (Assignment), for the purpose of financing the Project in connection with the Financial Closing, the Seller may assign to, or create a security interest in favour of, the Lenders in the Seller’s rights, obligations and interests under or pursuant to (i) this Agreement, the Guarantee and the Guarantee, Site Sub-lease (ii) any other agreement or document included within or contemplated by the Project Agreements, (iii) the Complex, (iv) the Site, (v) the present and future movable, immovable, and intellectual property of the Seller, and (vi) the present and/or future revenues, actionable claims, debts or any of the rights or assets of the Seller, and (vii) any other present or future right, interest, property or asset of any kind and wherever situated. The Seller may also create security interests in its rights and assets identified in sub-items (iii) through (vii) in the preceding paragraph in favour of financial institutions acting as short-term creditors lenders providing working capital or other short-term credit facilities required for its operations by the Seller or provided such security interests on the Complex for the purposes of the Seller Letter of Credit, Transferrable Assets are subject to an unconditional undertaking furnished by the short-term creditors lenders in favour of and delivered to AEDB (in form and content acceptable to AEDB) prior to the creation stipulating vacation of any security interests stipulating that any such security interests on or in respect of the Transferrable Assets shall ipso facto stand vacated, released and cancelled upon payment of Compensation Amounts by the GOP to the Lenders (or and to the Seller where applicable) pursuant to Article XV of this Agreement in connection with the transfer of the Transferable Assets to the GOP.
(b) The Lenders shall have the rights expressly granted in their favour in this Agreement and the Direct Agreement. Except in respect of such rights, the Lenders shall not exercise any of the rights of the Seller under this Agreement, the Guarantee or the Guarantee Site Sub-lease (to the extent assigned or Implementation Agreement 33 subject to a security interest pursuant to Section 11.2(a)) unless and until such time as the Lenders (or the Agent) deliver a notice in writing to AEDB (the “Succession Notice”) specifying that the Lenders or their designee are exercising their rights to succeed to the Seller’s interest under this Agreement, the Guarantee or the GuaranteeSite Sub-lease, as the case may be, whether by exercise of the rights or remedies of the Lenders under the Financing Documents to take control of and occupy or transfer the Complex or otherwise as contemplated by paragraph (c) below. The Succession Notice shall not be effective unless the AEDB shall have, not less than thirty (30) Days prior to the receipt of the Succession Notice, received from the Lenders (or the Agent) a notice (“Notice of Intent to Succeed”) specifying (i) the occurrence and continuance of an event of default under the Financing Documents; (ii) the intent of the Lenders to exercise their rights to succeed; and (iii) the anticipated date of issuance of the Succession Notice, which anticipated date shall not be earlier than thirty (30) Days following the date of receipt by AEDB of the Notice of Intent to Succeed. The Parties agree that the Notice of Intent to Succeed to the extent it relates to any succession rights of the Lenders under this Section 11.2 (Creation of Security) shall not be binding upon the Lenders or their designee and shall not constitute a Succession Notice. Within twenty Twenty (20) Days of receipt of the Notice of Intent to Succeed, the GOP shall notify the Lenders (or the Agent) of all Seller Events of Default (or events that with delivery of notice and the passage of time would become Seller Events of Default) which are, or after delivery of a Succession Notice would be, required to be cured by the Lenders or their designee in accordance with Section 11.2(c). Such notice by the AEDB to the Lenders (or the Agent) shall state (A) all amounts due to the AEDB and the GOP under this Agreement as at the date of such notice, (B) all amounts which may become due to the AEDB and the GOP under this Agreement as at the date of such notice and the events which have occurred under this Agreement and giving rise to such amounts, (C) all amounts claimed by the AEDB and the GOP under this Agreement as at the date of such notice which are then in dispute with the Seller, and (D) any additional amounts (contingent or otherwise) accruing as at the date of such notice under this Agreement until paid to the AEDB and the GOP and the events which have occurred under this Agreement giving rise to such amounts, together with formulae for determining such amounts, and (E) any amounts (contingent or otherwise) due to the AEDB under the Site Sub-lease) or any amounts (contingent or otherwise) which may become due to AEDB (in its capacity as lessor under the Site Sub-lease), including but not limited to amounts due under the Site Sub-lease whether disputed or not. Such notice by the AEDB to the Lenders (or the Agent) may be updated by AEDB to re-quantify such amounts and/or identify any additional events and the amounts related thereto by further written notice or notices to the Lenders (or Implementation Agreement 34 the Agent) at any time prior to the receipt of the Succession Notice by the AEDB under this Section 11.2(b).
(c) Subject to Section 11.2(b) and (d), upon delivery of Succession Notice to the AEDB, the Lenders either directly or through their designee shall have the right, among others, to (A) take possession of the Complex and, prior to the Commercial Operations Date, complete construction and Commissioning of the Complex and after the Commercial Operations Date, operate and maintain the same and (B) cure any continuing Seller Event of Default as provided under Section 14.4 (Notice to the Lenders of the Seller’s Default) of this Agreement. With effect from the delivery to the AEDB of a Succession Notice until the delivery of a notice terminating the Lenders’ (or their designee’s) obligations pursuant to Section 11.2(f), the Lenders (or their designee, as the case may be) shall assume and enjoy the rights, powers and privileges and, subject to Section 11.2(g), shall become jointly and severally liable with the Seller to perform and discharge the obligations, liabilities and duties of the Seller under this Agreement, Agreement and the Site-Sub Lease and the GOP shall perform and discharge the obligations, liabilities and duties of the GOP under this Agreement Agreement, the Site-Sub Lease and the Guarantee as if the Lenders (or their designee) were an original party thereto on a joint and several basis with the Seller from the date of execution thereof; provided that during any such period, all notices, demands and other communications delivered to or made on AEDB in exercising the Seller’s rights under this Agreement shall only be delivered or made by the designee (as identified by the Agent in the Succession Notice) or the Agent (if a designee has not been so identified). Notwithstanding the foregoing, the Lenders (or their designee) shall have no obligation to cure any Seller Event of Default that is not capable of being cured, including, but not limited to, a default under Sections 14.1(a)(vi), (vii) or, (viii), provided that notice of such default was given in the Notice of Intent to Succeed specifying that in the Lenders’ view such default is not capable of being cured by the Lenders (or their designee), and no right will exist for the GOP to terminate this Agreement based upon any such Seller Events of Default occurring prior to the Succession Notice.
(d) Upon succession by the Lenders or their designee to the Seller’s interest under this Agreement and the Guarantee in accordance with Section 11.2 (Creation of Security), the Lenders or their designee, as applicable, shall settle all amounts due and payable by the Seller (if any) and shall cure all defaults by the Seller under this Agreement within the Extended Cure Period (other than those that are not required to be cured pursuant to Section 11.2(c)) arising during the period prior to the Lenders’ or their designee’s succession to the Seller’s interest under this Agreement and the Guarantee, and that were Implementation Agreement 35 notified by the AEDB to the Lenders (or their Agent or designee) in writing on or before the delivery of the Succession Notice in accordance with Section 11.2(b); provided, however, that the aggregate liability of the Lenders or their designee, as the case may be, shall strictly be limited to the Seller’s and the Lenders’ or their designee’s ownership, contractual rights and security interest in the Complex, and; provided further, that the Lenders or their designee, as the case may be, shall have no liability for breaches of the Seller arising prior to the delivery of a Succession Notice other than to cure the breaches notified by AEDB pursuant to Section 11.2(b), and the liability of the Lenders or their designee to the GOP in respect of all liabilities of the Seller under or relating to this Agreement prior to the delivery of a Succession Notice shall not exceed the total amount specified by AEDB in the latest notice delivered by AEDB to the Lenders (or the Agent or their designee) in accordance with Section 11.2(b), as such amount may be adjusted in accordance with the formulae specified by AEDB in such notice.
(e) Except as otherwise set forth in this Section 11.2 (Creation of Security), neither the Lenders, the Agent nor the Lenders’ designee shall be liable for the performance or observance of any of the obligations or duties of the Seller under this Agreement, nor shall the assignment by the Seller of this Agreement or the Guarantee (or any other agreement or document included within or contemplated by the Project Agreements, to the extent assignable) to the Lenders pursuant to Section 11.2 (Creation of Security) give rise to any duties or obligations whatsoever on the part of any of the Lenders, the Agent or their designee owing to AEDB or the GOP.
(f) The Lenders or their designee may at any time following the delivery of a Succession Notice give AEDB on behalf of the GOP notice terminating the Lenders’ or their designee’s obligations and rights under this Agreement and the Guarantee (without affecting the continuation of the Seller’s obligations towards the GOP thereunder). Such notice shall designate a date on which the Lenders’ or their designee’s obligations and rights will terminate and on and after such designated date the Lenders or their designee shall be released from all obligations and liabilities thereunder (other than those obligations and liabilities which have arisen prior to such designated date). Upon such designated date, subject to the expiration of the applicable cure period provided in Section 14.4 (Notice to the Lenders of the Seller’s Default), AEDB (acting for itself and the GOP) may exercise without restriction all of its rights under this Agreement.
(g) Subject to this Section 11.2 (Creation of Security) but without the requirement of obtaining any further consent from the AEDB (acting for Implementation Agreement 36 itself and the GOP), upon the exercise by the Lenders or their designee of any of the remedies set forth in the Financing Documents, the Lenders may assign or transfer by novation their rights and interests and the rights of the Seller under this Agreement and the Guarantee (or any other agreement or document included within or contemplated by the Project Agreements, to the extent assignable) to any Transferee (hereinafter defined) so long as such Transferee shall assume in writing for the benefit of the GOP (and for the benefit of the relevant party under any other agreement or document included within or contemplated by the Project Agreements) all of the obligations of the Seller under this Agreement, provided that the Transferee shall not be liable for any outstanding obligations under this Agreement which were not disclosed by AEDB to the Lenders or the Agent in accordance with Section 11.2(b). Upon such assignment or transfer and assumption, the Lenders the Agent or their designee and the Seller, as the case may be, shall be relieved of all obligations assigned or transferred to to, and assumed by by, a Transferee under this Agreement.
(h) Upon notice to the AEDB from Lenders or the Agent of the Lenders’ assignment or transfer by novation to a Transferee, as set out in Section 11.2(g) above, the AEDB shall effect on behalf of the GOP the transfer of the Seller’s rights and obligations under this Agreement and the Seller’s rights and obligations under the Guarantee to a Transferee.
(i) As used herein, a “Transferee” shall be a person who (i) either is an experienced solar wind power plant operator or shall have agreed to engage the services of a person who is an experienced solar wind power plant operator, (ii) shall have paid all amounts, if any, then due and payable to the GOP under this Agreement, (iii) shall have expressly assumed in writing for the benefit of the GOP the obligations of the Seller under this Agreement including (but not limited to) the obligation of the Seller to maintain and operate the Complex in accordance with the requirements of the Energy Purchase AgreementAgreement and the Site Sub-lease, (iv) has not been objected to by AEDB in a written notice delivered by AEDB to the Lenders not later than ten (10) Days after the Lenders have delivered notice identifying the Transferee to AEDB on the basis that a majority of the capital of the Transferee is held or controlled by persons of a nationality that the GOP reasonably considers to be prejudicial to the national security of Pakistan, (v) is a corporate body established in Pakistan, and (vi) shall have procured from any Relevant Authority or any Public Sector Entity, any prior approvals that may be required under the Laws of Pakistan to acquire interests pursuant to such assignment or transfer and a written notice of such approvals shall have been Implementation Agreement 37 delivered to the AEDB and the AEDB shall not have objected thereto within ten (10) Days of receipt of such written notice.
(j) With respect to all Seller Consents issued by the GOP or any Relevant Authority, the GOP shall not, and the GOP shall ensure that no Relevant Authority shall, exercise any power under Section 5.2 (Conditions to Seller Consents) unless the Lenders shall have first been given written notice of such failure (which notice shall specify, in reasonable detail, the nature of such failure) and the Lenders or their designee are given the opportunity and fail within a reasonable period of time after receipt of such notice to so rectify, remedy or cure such failure, which period shall not in any event exceed the cure period provided to the Seller or to the Contractors, as the case may be, under Section 5.2 (Conditions to Seller Consents). The GOP shall ensure that, in connection with any transfer or sale of the Complex or the shares of the Seller to the Lenders or their designee, as applicable, to any Transferee, each Seller Consent issued by the GOP or any Relevant Authority shall be transferred or, if unable to be transferred for any reason, shall be re-re- issued in the same form to the Lenders, or their designee or the Transferee, as applicable. Subject to Section 11.2(g), the GOP shall ensure that such transfer or re-issuance is made within the period of time, if any, prescribed by applicable Laws of Pakistan as applied in a non-discriminatory manner pursuant to Section 12.1 (Assurance Against Discriminatory Action) and, in any event, within one hundred and eighty (180) Days after the date of proper and complete application therefor. Subject to 11.2(g), provided that the Seller shall have requested in writing from a Relevant Authority its consent to any security interest in any Seller Consent granted or to be granted by such Relevant Authority to the Lenders or the Agent and shall have diligently pursued obtaining the consent of such Relevant Authority to such security interest, the GOP hereby covenants and shall procure that such Relevant Authority consents to the grant by the Seller to the Lenders or the Agent of a security interest in any such Seller Consent to the extent that such Consent is assignable to the Lenders or the Agent by way of security, and such security interest is available, under the Laws of Pakistan.
(k) Upon receipt of the Notice of Intent to Succeed, the GOP shall, at the request and expense of the Lenders or the Agent, cooperate with the Lenders or the Agent in the exercise of their rights under this Section 11.2 (Creation of Security).
(l) At the request of the Seller, delivered to the AEDB no less than thirty (30) Days in advance, the GOP shall execute and deliver, effective at the Financial Closing, the Direct Agreement with the Seller and the Lenders including acknowledgements toA
Appears in 1 contract
Sources: Implementation Agreement