Third Amendment and Restatement Agreement Notes

  • Third Amendment and Restatement Agreement:\n - Dated March 6, 2024.\n - Parties involved:\n - Minergy Power Corporation (Borrower & Mortgagor).\n - BDO Unibank, Inc. and China Banking Corporation (Lenders).\n - Mindanao Energy Systems, Inc., Vivant Integrated Generation Corporation, J Ten Equities, Inc. (Share Chargors).\n - BDO Capital & Investment Corporation and China Bank Capital Corporation (Arrangers).\n - BDO Unibank, Inc. - Trust and Investments Group (Facility Agent & Collateral Trustee).\n\n- Table of Contents Overview:\n - Includes signature pages, affidavit of good faith, acknowledgment, certificate of oath, and attachments covering various agreements and forms.\n\n- Part A: Common Provisions:\n - Section 1: Construction and Definitions; Binding Effect and Enforceability.\n - Defined terms: Advances, Affiliate, Applicable Law, etc.\n - Principles of Construction.\n - Binding Effect and Enforceability of Parts.\n - Section 2: Loan Facilities and the Collateral.\n - The Loan Facilities.\n - The Collateral.\n - Establishment of Accounts.\n - Section 3: Representations and Warranties.\n - Representations and Warranties of the Borrower, including organization, power and authority, no conflicts, enforceability, compliance with applicable laws, government approvals, financial information, capitalization, subsidiaries, project documents, no litigation, real property, insurance, taxes, environmental matters, security documents, no liens, employee matters, intellectual property, status of loans, and affiliate transactions.\n - Section 4: Covenants.\n - Affirmative Covenants, including existence, information, books and records, compliance with applicable law, government approvals, indebtedness, maintenance of properties, insurance, taxes, operation and maintenance, security, notice of change of address, operating budget, use of proceeds, and financial covenants (Debt Service Coverage Ratio and Debt-to-Equity Ratio).\n - Negative Covenants covering conduct of business, project/loan documents, limitations on liens/indebtedness/investments, restricted payments, asset sales, merger, leases, liquidation, bank accounts, affiliate transactions, budgets, accounting changes and equity transfers.\n - Section 5: Events of Default.\n - Events of Default including payment default, representation default, other provisions default, cancellation of government approval, defaults relating to project documents, cross-default, inability to pay debts, judgment default, impairment of security and others.\n - Section 6: Common Miscellaneous Provisions.\n - Waiver; Cumulative Rights.\n - Entire Agreement.\n - Action by Majority Lenders; Waivers and Amendments.\n - Governing Law.\n - Venue for Suit.\n - Waiver of Immunity.\n - Severability of Provisions.\n - Notices.\n - Assignment; Successors and Assigns.\n - Set Off.\n - Confidentiality; Data Privacy (includes handling of personal information and compliance with Data Privacy Laws).\n - Force Majeure.\n - Liability for Taxes, Fees and Expenses.\n - Indemnity; Limitation of Liability.\n - Reliance by the Lenders; Survival of Obligations.\n - Act only on Instructions.\n - Limited Recourse.\n - Authority to Sign the Agreement.\n - Mutual Cooperation.\n - Counterparts.\n\n- Part B: Additional Loan Facility:\n - Section 1: The Additional Loan Facility.\n - Details regarding advances, procedure for borrowing, notes, principal repayment, and prepayment conditions including penalties.\n - Specifies pro rata and pari passu treatment and the sharing of payments among lenders.\n - Section 2: Funding and Yield Protection.\n - Covers taxes and deductions, increased costs, and illegality.\n - Section 3: Fees; Costs and Losses.\n - Agents' Fee; Arranger's Fee.\n - Funding Costs and Losses, ensuring indemnification for losses incurred due to borrowing failures or prepayments.\n - Non-Reimbursable Nature of certain expenses.\n - Section 4: Conditions for Borrowing.\n - Lists conditions for lenders to make advances, including delivery of notices, absence of defaults, accuracy of representations, compliance with laws and regulations.\n - Section 5: The Facility Agent.\n - Details the Facility Agent's appointment, actions, liabilities, and rights, including reliance on lender instructions, service fees, indemnification, and ability to consult counsel.\n\n- Part C: Collateral Trust Agreement:\n - Section 1: Collateral Trustee.\n - Appointment and duties of the Collateral Trustee.\n - including: safe keeping the Collateral documents, act with fairness and good faith in all its dealings with the Obligors and the Lenders, and administer the funds and properties held in trust with care.\n - Rights of Collateral Trustee including the right to act through agents, reliance on documents, and indemnification.\n - Section 2: Secured Parties.\n - Pari Passu Ranking of liens and security interests.\n - Payments During Default to be distributed pro rata among Secured Parties.\n - Section 3: Rights and Remedies.\n - Exercise Of Rights upon instructions from Required Approving Lenders.\n - Actions Upon a Declaration of Default procedures.\n - Instructions to Collateral Trustee, where the Collateral Trustee acts upon the direction of the Required Approving Lenders.\n - Section 4: Distributions.\n - Application of Proceeds order of priority for distribution of proceeds from collateral realization.\n - Payments Held in Trust obligation of any Secured Party receiving payments outside the defined process to hold them in trust.\n - Set-Off procedures for how set-off rights are exercised and amounts are shared.\n - Pro Rata Computation methodology.\n\n- Part D: Project Accounts Agreement:\n - Section 1: The Project Accounts.\n - Establishment of Project Accounts (Revenue, Operating, Debt Service Reserve, Debt Service Accrual, and Balance Accounts).\n - Control of Project Accounts and obligations of borrower to maintain specified accounts with Collateral Trustee.\n - No Obligation to Monitor, specifying that the Collateral Trustee is not responsible for monitoring various aspects of the project or payments.\n - Section 2: Funding of and Distributions From the Project Accounts.\n - Details weekly and monthly distributions, payments, and fund application from Revenue Peso/Dollar Accounts, including the Debt Service Reserve Account.\n - Explains the process for using Casualty Proceeds and Condemnation Proceeds for project restoration.\n - Section 3: Payments and Withdrawals By The Collateral Trustee.\n - Addresses deduction or withholding for taxes and the process for payments upon an event of default or acceleration.\n - Stipulates the requirements for Valid Withdrawal Instructions from the Borrower.\n - Section 4: Investment of Funds.\n - Describes the acceptable Permitted Investments of Funds in Trustee Accounts to be at the direction of the Borrower.\n - Section 5: Grant of Security.\n - Granting Clause provides the granting clause creating a Security Interest in favor of Collateral Trustee.\n _ Stipulates Remedies upon Event of Default or Declaration of Default.\n\n- Part E: Real Estate Mortgage:\n - Section 1: Real Estate Mortgage\nCreation of Real Estate Mortgage\nReal Assets (Immovable assets)\nEquity in Real Assets\nPerfection of Lien; Registration of Real Estate Mortgage\nFirst Priority Ranking of the Real Estate Mortgage\nSecured Parties Without Obligations\nUse of Assets\nSecurity for Secured Obligations\n - Section 2: Additional Representations and Warranties\n - Section 3: Covenants and Undertakings\n - Section 4: Rights and Remedies of the Secured Parties\n - Section 5: Consequences of and Remedies Upon Default\n - Section 6: Miscellaneous\n\n- Part F: Personal Property Security Agreement:\n - Section 1: Describes Security Interest\n - Section 2: Security Interest over Chattels\n - Section 3: Security Interest over the Assigned Collateral\n - Section 4: Additional Representations and Warranties\n - Section 5: Covenants and Undertakings\n - Section 6: Enforcement Rights and Remedies of the Secured Parties\n - Section 7: Details on Consequences of and Remedies Upon Default\n - Section 8: Miscellaneous\n\n- Part G: Share Charge:\n - Section 1: Describes the Security Interests over the Share Collateral\n - Including: issued and outstanding shares, deposits for subscriptions, and all associated rights and titles of Share Chargors.\n - Section 2: Details on Representations and Warranties by the Share Chargors, and their survival.\n - Section 3: Covenants and Undertakings, including delivery of share certificates, annotation of the share charge, after-acquired shares, and general covenants.\n - Section 4: details on Voting and other Rights , and details on Dividends and Other Distributions\n - Section 5: Events of Default\n - Section 6: Miscellaneous items\n\n- Schedules:\n - Schedule I: The Lenders and Their Commitment.\n - Schedule II: Notice Details for all parties.\n - Schedule III: Government Approvals required for the project.\n - Schedule IV: Project Documents list.\n - Schedule V: Insurance Program details.\n - Schedule VI: List of Banks as DSR LC Providers.\n - Schedule VII: Present Real Assets and a partial section of Additional Real Assets for the mortgage.\n - Schedule VIII: Excluded Real Assets that aren't part of the security.\n - Schedule IX: Present Chattels included in the security.\n - Schedule X: Share Collateral details.\n - Schedule XI: Repayment Schedule.\n - Schedule XII: Existing Bank Accounts.\n\n- Exhibits:\n - Standardized forms: Certificate of No Default, Notes, Disclosure Statement, Withdrawal Instruction, Debt Services Reserve Application Instruction, Payment Date Instruction, Restoration Certificate, Distribution Instruction, Depositary Bank Consent, Mortgage Supplement, Personal Property Security Supplement, Counterparty Consent, Counterparty Notice, Share Charge Supplement, Irrevocable Proxy and Share Charge Accession Agreement forms.\n\n- Attachments:\n - Conditions Precedent for the Third Amendment's effectiveness, documentation requirements, and Facility Agent certification.\n - Standard legal opinions for Borrower's, Share Chargor's, and Lenders' Counsel.