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Dieser Vertrag ist wirklich zum Brechen!
Es handelt sich beim vorliegenden Regelwerk nicht um übliche Verträge unter Geschäftspartnern mit ausbalancierten Rechten und Pflichten sondern schlichtweg um Verfügungen der US-Firmen, die von der TIWAG unterschrieben worden sind.
Wer so einen Vertrag, den man ihm vorlegt, ung’schaut frißt, also samt allen Fußangeln schluckt, braucht sich nicht zu wundern, wenn er immer nahe am Brechen ist.
Wir bringen in der Folge einige der größten Kotzbrocken aus den US-Dekreten, die sich nobel Agreements (Übereinkommen) nennen. Die für den TIWAG-Hausgebrauch erfolgte Übersetzung ist schauderlich und noch um einiges unverständlicher als das Original. Sie hat auch keine Bedeutung, weil natürlich das Rechtsenglisch bindend ist.
Wir bringen daher ausgewählte Textstellen in der Fassung, in der auch der Chairman Of The Board, our one & only Representative Of The Shareholder’s Meeting, His Uniqueness Mr. Ferdinand Eberle (Heiterwang), ohne Zweifel ein pig trader, sie studiert hat. Er selbst (f.eberle@tirol.gv.at) steht für nähere Erläuterungen und ins Detail gehende Interpretationen ebenso zur Verfügung wie His Kindness, The Former Member Of The Board, Mr. Herwig van Staa (Barwies), ein (wenn auch nur im übertragenen Sinne) ausgewiesener Experte auf praktisch allen Gebieten (h.vanstaa@tirol.gv.at).
I. Vereinbarung über die Vertraulichkeit (§ 22)
Confidentiality.
Each of the parties hereto hereby agrees for itself and its Affiliates that (i) it and such Affiliates will not make any public announcement (except to the extent required in connection with its financial disclosure or reporting requirements or as otherwise required by Applicable Law) or issue or release for external publication any article or advertising or publicity matter relating to the Overall Transaction (inc1uding, but not limited to, any information relating to the Facility or Facility Site (or any Part thereof) or that is otherwise obtained by such party during the inspection thereof pursuant to the terms of the Operative Documents, any pricing or confidential financial information, the Appraisal or the Tax Indemnity Agreement) without the prior written consent of each other party hereto (which consent shall not be unreason-ably withheld) and (ii) it will maintain the confidentiality of the transactions contemplated hereby and the terms of the Operative Documents (including, the Appraisal, the reports (or the conclusions thereof, as the case may be) referred to in clauses (x) and (xi) of Section 3(b) any other information relating to the Facility or Facility Site (or any Part thereof) or that is otherwise obtained by such party during the inspection thereof pursuant to the terms of the Operative Documents, and any other document that contains pricing or other confidential information regarding the Overall Transaction) and will not disclose, or cause to be disclosed, the same to any Person, except (a) to prospective transferees, participants, sub-participants or financiers of such Person’s interests in the transactions contemplated by this Participation Agreement and the other Operative Documents who agree in writing, on substantially the same terms set forth in this Participation Agreement, to hold such information confidential, (b) to its Affiliates, its and its Affiliates’ agents, directors, officers, employees, accountants, counsel or other professional advisors that have, in each such case, been instructed to keep such information confidential, (c) as may be required pursuant to Applicable Law by any governmental agency or instrumentality or other supervisory or regulatory body requesting such disclosure (including Internal Revenue Service auditors, [the National Association of Insurance Commissioners,] state taxing and regulatory authorities or public bodies) or any rating agency subject to confidentiality undertakings in respect of the precise terms and conditions of the Overall Transaction, (d) to the extent, but only to the extent, required in connection with the performance by it of its obligations and the exercise by it of its rights and remedies under the Operative Documents, (e) to the extent, but only to the extent, that prior to such disclosure, such information is in the public domain (other than by reason of a breach by such party of the confidentiality provisions hereof or as expressly contemplated hereby), (f) to the extent that such party or any of its Affiliates may have received a subpoena for such information (provided that such party shall (to the extent permitted by Applicable Law) first, as soon as practicable upon receipt of such demand, furnish a copy of such subpoena to the party such information relates to) or (g) with the prior written consent of each other party hereto (which consent shall not be unreasonably withheld); provided, however, that, (I) Citibank may publish one or more announcements in customary form as to the consummation of the transactions contemplated by the Operative Documents. with the prior written consent of TIWAG and the Beneficiary (such consent not to be required in respect of the materials identified in Schedule 22(v)) and (II) TIWAG may make such public announcements in respect of the Overall Transaction as it deems prudent or otherwise in its best interests; provided further, however, that TIWAG will use its reasonable efforts not to disc1ose the identity of the Beneficiary in any such public announcement; and (III) each Lender may make public announcements indicating its participation in the Overall Transaction; provided, that any such announcement shall not mention any other Transaction Party by name.
II. Gerichtsstand; Verzichtserklärung; Zustellungsbevollmächtigter
V. Process Agent; Jurisdiction and Waiver
Each of the parties to the Participation Agreement (including TIWAG) has agreed (A) to the nonexclusive jurisdiction of various courts in New York and London for the purposes of any suit, action or other proceeding arising out of the Operative Documents, (B) to the extent permitted by Applicable Law, to waive, and not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding any claim that it is not personally subject to the jurisdiction of the above-named courts, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that the Operative Documents may not be enforced in or by such court and (C) that it has waived all right to a jury trial.
As at Closing, TIWAG appointed CT Corporation System (111 Eighth Avenue, New York, New York 10011) as its agent to receive on its behalf service of copies of any summons and complaint and any other process which may be served upon it in New York (the "US Process Agent") and (ii) the Law Debenture Trust Corporation p.l.c., (Princes House, 95 Gresham Street, London EC2V 7LY, England) as its agent to receive on its behalf service of copies of the summons and complaint and any other process which may be served upon it in England (such agent, the "UK Process Agent", and together with the US Process Agent, the "Process Agents"). Such Process Agents must be maintained throughout the Lease Term.
III. Verbücherung des Hauptmietvertrages
Der Hauptmietvertrag mit seiner Laufzeit bis 31.12.2095 wurde aus Kostengründen nicht verbüchert. Eine nachträgliche Verbücherung droht jedoch während der gesamten Laufzeit, sollten sich bestimmte Rahmenbedingungen - wie zum Beispiel das Kreditrating des Landes Tirol (Bonität) - ändern. Die Anlässe, die eine solche Verbücherung auslösen würden, sind minutiös festgelegt.
Head Lease Filing (Participation Agreements, 11(j)).
1. General Rule. As provided in Section 11(j) of the Participation Agreements, the parties thereto have generally agreed that a Head Lease Filing will not be made unless (subject to certain exceptions) prior notice is provided to TIWAG and certain other conditions are satisfied. In the case of the documents relating to the Surety Bond provided by Ambac for the PCI Trusts, TIWAG has agreed that Ambac will be permitted to cause a Head Lease Filing if other conditions are satisfied.
To the extent a "Head Lease Filing Event" has occurred or Ambac is permitted to cause a Head Lease Filing, TIWAG will be responsible for all stamp tax and other relevant taxes, fees and expenses associated with a Head Lease Filing, and is generally required to ensure that a Head Lease Filing is made when required.
2. Critical Monitoring Items. The critical monitoring items for TIWAG are to determine whether or not a Head Lease Filing Event has occurred or, in the case of the PCI Trusts, if Ambac is permitted to cause a Head Lease Filing. Since the Trusts may effect a Head Lease Filing at any time (at the cost of a Beneficiary if a Head Lease Filing Event has not occurred), it will also be important to monitor
whether one or more of the Trusts has elected to make a Head Lease Filing on such a "voluntary" basis.
Head Lease Filing Event. For purposes of the Participation Agreements, a "Head Lease Filing Event" is generally defined as follows:
(A)(I) Province of Tyrol rated lower than "A-" (and, if rated by Moody’s, less than "A3" by Moody’s);
(II) Province of Tyrol ownership in TIWAG falls to less than 51% (with provision for intermediate entity ("IE") if Province of Tyrol owns 75% plus one share of IE and IE owns 51% plus one share of TIWAG);
(III) the occurrence and continuance of a Lessee Event of Default; or
(IV) the Lease shall have expired (unless TIWAG shall have purchased the Undivided Interest); and
(B) the Trust has not exercised the Facility Purchase Option.
"Head Lease Filing Event Safe Harbor"
In the case of clauses (A)(I) and (II) above, the documents provide for a "safe harbor" if certain rating tests or financial covenants are satisfied (i.e., if such rating tests or financial covenants are satisfied, no Head Lease Filing Event will occur). Such "safe harbor" may be summarized as follows:
"A-"/"A3" credit rating from TIWAG or an entity guaranteeing TIWAG's obligations in respect of the Transaction (including, subject to certain conditions, Province of Tyrol); or
Consolidated Net Worth of Euro 290 million and Debt/Net Worth ratio of not greater than 1.5:1.0 from TIWAG or certain TIWAG guarantors.
Ambac Documents. For purposes of the Ambac documents, a Head Lease Filing will be permitted if at any time an I&I Event of Default shall have occurred and be continuing under (x) Section 3.1(d) of the I&I Agreement in respect of a breach of TIWAG's obligations with respect to a "Lessee Transfer Event", an "Ownership Event", a "Network Transfer or a "Business Transfer" (see, Part B. of Annex I for definitions) or (y) Sections 3.1(e) or (f) thereof in respect of a failure to renew Priority Notice Decree or the imposition of a Head Lessor Lien (each a "Special Registration Event").
In addition, in the event a "Registration Event" (as defined in the definition of "Consolidated Owner's Equity" set forth in Part B. of Annex I hereto) shall have occurred and be continuing and TIWAG shall not have provided "Acceptable Collateral" (as defined in Part B of Annex I hereto) or obtained a rating or ratings as required and shall have failed to cause a Head Lease Filing within 45 days of any such occurrence and continuance of a Registration Event, Ambac shall have the right to cause such Head Lease Filing to be made at the end of the 75 day period after the occurrence and continuance of such Registration Event, at its sole cost and expense.
3. Time Periods for Filing. TIWAG will be required to cause a Head Lease Filing prior to the occurrence of a Head Lease Filing Event of the type specified in paragraph (II) of sub-clause 2.i. above. In other cases, the time for effecting the
Head Lease Filing will depend on the particular Head Lease Filing Event (between 3 Business Days and 60 calendar days) or will be as provided in the Ambac documents.
4. Alternatives to Filing. Prior to any Head Lease Filing being made, TIWAG will have an opportunity to offer alternate in rem rights (e.g., a transfer of legal title), subject to approval by the Trust and Agent as provided in Section ll(j) of the respective Participation Agreements.
5. Right of Trust to Cause Filing at Own Expense. The Trust will be permitted to make a Head Lease Filing at any time if the Beneficiary pays all relevant taxes and costs as provided in Section ll(j) of the respective Participation Agreements.
For ease of reference, the full text of Section ll(j) of the Participation Agreement, together with certain related definitions, are set forth in Annex I.
IV. Haftung für Mietzahlungen
Die TIWAG, die für die Rückmiete bis 2035 bzw. 2037 sämtliche Mietzahlungen en bloc bereits im voraus bei den Banken deponiert und mit diesen die kontinuierliche Überweisung vereinbart hat, bleibt für den Fall, daß deren Zahlungen an den Trust ausbleiben, weiterhin haftbar für die zu leistenden Leasingraten.
No Release From Liability. It is important to note that the collateral instruments provided by TIWAG as at Closing, or that may be provided by TIWAG during the term of the Transaction, in any such case as security for performance of TIWAG's Lease obligations (including the Equity Security, the Series A PUAs and the Series B PUAs) do not and will not have the effect of discharging such obligations, and that TIWAG will continue to be responsible for performance of such obligations if one or more of the obligors in respect of such instruments do not perform their obligations thereunder.
At closing, TIWAG arranged for payment undertakings which will pay 100% of all rental payments and the purchase option price (if the option is exercised) for all of the transaction (both investors). TIWAG also purchased in March of 2002 another payment undertaking from UBS to make USD payments of the premiums due for the Surety Bond to Ambac.
TIWAG remains, however, liable for rental payments and the surety bond premium if the payment undertaker fails to make the required payments. It is therefore prudent to confirm receipt of payment with the Agent and/or the Trustee on the next business day following a rental date on which there is Series B Debt Portion and/or Equity Portion of Lease Basic Rent due. These amounts are listed on Exhibit Bl to the Lease Agreement. The contact details and account information for the Agent, Ambac and the Trustee are listed below. In the case of the surety bond premium payments, receipt of payment should be confirmed with Ambac on the next business day after the due date for those payments (annually on 3 December starting in 2002 and ending in 2034).
V. Kosten/Gebühren/Abgaben
Certain Fees and Expenses of Trustee and Agent (Participation Agreements; Section 16(h)).
TIWAG has agreed to pay, on an After-Tax Basis, the reasonable ongoing fees and expenses of (x) the Trustee (in its capacity as Trustee and, if applicable, as Securities Intermediary) accruing during the Lease Term and (y) the Agent accruing during the term of the Loan Agreement, including the reasonable compensation and expenses of such Person's respective counsel, accountants or other skilled persons in its employ, arising out of such Person's discharge of its duties under the Operative Documents, in each case to the extent consistent with and set forth in an expense and fee reimbursement agreement between TIWAG and each such Person, respectively.
Austrian Stamp Tax (Participation Agreements; Section 22(q)).
As contemplated by Section 22(q) of the Participation
Agreements, TIWAG has agreed to provide an indemnity for and against any Austrian Stamp Taxes imposed with respect to any Operative Document and any other document executed and delivered in connection with the Transaction. Such indemnity is subject to exclusions, including, as to a particular party, a failure by such party to conform to the agreements set forth in the Participation Agreements which are intended to mitigate the underlying risks associated with TIWAG’s indemnification obligations in circumstances where such failure results in the imposition of Austrian Stamp Taxes. Such agreements include the following:
a. an agreement to not bring original documents or original versions of the Operative Documents or any other document executed in connection therewith to Austria (in any such case, an Original Copy"), unless the bringing of such Original Copy into Austria is, inter alia, (x) ordered by any Governmental Authority or required
by Applicable Law, (y) necessary to enable the Lessor to exercise and consummate its rights to make a Head Lease Filing or in respect of the Site Parcel Purchase Option or the Facility Purchase Option or (z) occurs (i) after good faith attempts to introduce an uncertified copy thereof into proceedings of a Governmental Authority are made or (ii) at a time when a Lessee Bankruptcy
Default shall have occurred and be continuing;
b. an agreement that, prior to the execution or giving, making or transmission of certain documents, certificates, notices or other written communications, the same will be submitted in draft form to (x) reputable Austrian counsel selected by such party in a prudent manner or (y) Austrian counsel selected by TIWAG, in any such case for review and comment and with a view to making such changes
thereto, if any, as such counsel shall have described as necessary in order to avoid the imposition of Austrian Stamp Taxes.
Austrian VAT (Participation Agreements; Section 22(p)).
If any Austrian VAT becomes payable in respect of any payment by the Trust under the Head Lease, TIWAG is required to account for and pay such VAT to the Austrian VAT authority and issue a VAT invoice to the Trust in respect of the amount payable according to the Head Lease plus VAT, where applicable. If such payment is made, the Trust is required to reimburse (after deduction of applicable withholding tax, if any) the amount of such VAT if and to the extent that it actually receives a credit or refund ("Vorsteuerabzug") or a combination of both in respect of such VAT payment, such reimbursement to become due and payable (in the case of a refund) at the time the same is received by the Trust or (in the case of a credit) at the time the Trust is in a position to set-off the relevant amount against its own VAT liability, or where applicable, receives a refund of any excess of tax credit over its own VAT liability (understanding that the Trust may discharge any such reimbursement obligation by assigning to TIWAG any such claim for refund or credit in compliance with Applicable Austrian Law).
If subsequent to the Trust having reimbursed TIWAG for Austrian VAT, any VAT refund or credit should be disallowed by the competent VAT authority, TIWAG is required to reimburse to the Trust the amounts for which a refund or credit has been disallowed.
Special Tax Indemnity (Tax Indemnity Agreements).
TIWAG has agreed to provide indemnities to each Beneficiary for the loss of tax benefits pursuant to the respective Tax Indemnity Agreements. Such indemnities are subject to a number of exclusions, all as set forth in such Tax Indemnity Agreements. As a general matter, a Beneficiary is required to provide written notice of an indemnity claim under the Tax Indemnity Agreement. If a claim is ever asserted, reference should be made to the relevant Tax Indemnity Agreement for purposes of determining, inter alia, (x) whether there exists the basis for a valid exclusion and (y) the rights and responsibilities of TIWAG with respect to the manner in which a contest of an underlying claim should be conducted and the provision of information requested in connection with the defense of such claim. Also, if TIWAG so requests, an intermediary firm may be retained for verification of the Beneficiary’s computations of an indemnity claim.
Certain of TIWAG's primary responsibilities under the Tax Indemnity Agreements, the breach of which may form the basis of a claim thereunder, are enumerated below:
VI. Weitere Verpflichtungen
Information/Records.
Upon request by the Beneficiary, TIWAG is required to provide all information with respect to the United States federal, state and local characterization that may be necessary to facilitate accomplishment of the intent of the parties that the Head Lessor be treated as the seller of the Undivided Interest and the Beneficiary be treated as the owner of the Undivided Interest. Within a reasonable time after written request therefore, TIWAG is required to provide such information and copies of records that are within the control of or otherwise reasonably accessible to TIWAG as the Beneficiary may reasonably require to enable the Beneficiary to fulfill its U.S. federal, state and local income tax return filing obligations or other tax reporting obligations or to pursue its related audit and litigation rights.
(…)
Lessee Purchase Option.
No Lessee Person will at any time represent in any governmental or regulatory filing or in any administrative or judicial proceeding that as of the Closing Date TIWAG had decided, planned or intended to exercise the Lessee Purchase Option.
Improvement/Modification/Alteration/Addition.
No Lessee Person is permitted to make any improvement, modification, alteration or addition to the Facility that will cause the Facility to be useful on a commercially reasonable basis only to, or usable on a commercially reasonable basis only by, a Lessee Person or otherwise will cause the Facility to become "limited use property" under U.S. tax laws.
Austrian Treatment.
Each Lessee Person, to the extent applicable to it, will characterize and treat the transactions contemplated by the Operative Documents for Austrian legal, tax and accounting purposes, respectively in accordance with the tax and accounting opinions of KPMG provided to the Beneficiary as of the Closing Date, in each case, except to the extent there is (A) a change in Austrian law, including Austrian tax law or in the interpretation thereof, (B) a change in Austrian accounting standards, or (C) a change in characterization of the Transaction by the Austrian tax authorities; in which case such Lessee Person may characterize or treat the Transaction in accordance with such change; provided, such treatment or characterization is proper under the then applicable Austrian laws or accounting standards.
VII Rückkauf-Option
Die TIWAG hat eine Rückkauf-Option nach 33 (im Fall der beiden Potomac-Trusts) bzw. 35 Jahren (im Falle der beiden Hancock-Trusts). Daß eindeutig von einer Kauf-Option die Rede ist (Purchase Option) beweist, daß das Kraftwerk nach amerikanischer Lesart eben verkauft worden ist. Für den möglichen Rückkauf wurde eine Ausgangssumme bei der United Bank of Switzerland (UBS) deponiert, die - in US-Anleihen investiert - bis 2035 bzw. 2037 die dann fällige, bereits bei Vertragsabschluß festgelegte Kaufsumme ergeben soll.
Wie weiter oben (siehe „Weitere Verpflichtungen“) ausgeführt, darf kein Leasingnehmer-Vertreter (hier also TIWAG-Verantwortlicher) je in irgendeinem regierungsamtlichen oder die Verwaltung betreffenden Akt oder einem administrativen oder gerichtlichen Vorgang verraten, daß die TIWAG bereits bei Vertragsabschluß entschieden oder beabsichtigt hat, die Rückkauf-Option wahrzunehmen. Dann nämlich würde die US-Steuerbehörde den Hauptmietvertrag (bis 2095) als bloße Vortäuschung ansehen und den Investoren die Steuergeschenke streichen. Eine öffentliche Bekanntgabe von seiten der TIWAG, „to exercise Lessee Purchase Option“ (die Kaufoption auszuüben), wäre ein klarer Vertragsbruch der TIWAG und geeignet, enorme Schadenersatzansprüche an sie durch die US-Trusts auszulösen.
Genau dies ist aber vor zwei Tagen passiert! Der Chairman Of The Board (Aufsichtsratsvorsitzende) der TIWAG, gleichzeitig Representative Of The Shareholder’s Meeting (Vertreter des Alleinaktionärs Land Tirol), Ferdinand Eberle hat genau diesen Vertragsbruch (Lessee Event of Default) in aller Öffentlichkeit begangen:
„Ausdrücklich erklärte Eberle, daß die Tiwag die Absicht habe, ihre Kraftwerke zum ersten vertraglich möglichen Zeitpunkt nach knapp über dreißig Jahren zurückzukaufen.“
(Pressekonferenz am 22. März 2005, zitiert nach dem Standard vom 23.3.2005)
Die TIWAG hat den Hut auf. Und er brennt lichterloh.
Lessee Purchase Option.
TIWAG will be permitted to exercise the Lessee Purchase Option as of the Lease Term Expiration Date, subject to various conditions that include the following:
1. No Lessee Event of Default or Lessee Material Default shall have occurred and be continuing.
2. TIWAG shall have previously given an irrevocable written notice to the Lessor (with a copy to the Agent and each Lender) of such exercise not earlier than four years nor later than two years prior to the Lease Term Expiration Date.
3. on the Lease Term Expiration Date, TIWAG shall pay to the Lessor (x) the initial installment of the Purchase Option Price or (y) the full amount thereof if (i) the Lessor, the Beneficiary, the Agent and the Lenders shall have waived any Lessee Event of Default or Lessee Material Default that shall have occurred and be continuing or (ii) Equity Collateral providing for scheduled payments at least equal to the remaining installments of the Purchase Option Price has not been provided on or prior to the Lease Term Expiration Date, together with an opinion of counsel in an agreed form or substantially to the effect that the provision of such Equity Collateral would not be subject to avoidance as a preference in any bankruptcy or similar proceeding affecting the Lessee (which opinion may be subject to customary exceptions) (understanding that such Equity Collateral will be required to be in the form of an agreed letter of credit if an "End of Term Credit Event" shall have occurred and be continuing (i.e., any event or circumstance whereby (i) the long-term unsecured debt obligations of each of the Lessee, any Lessee Guarantor and any Lessee Affiliate Guarantee do not have long term unsecured debt obligations rated at least "BBB-" by Standard & Poor's or the equivalent thereof by Moody's (or, if rated by both Standard & Poor's and Moody's, "BBB-" by Standard & Poor's and the equivalent thereof by Moody's) and (ii) the Province of Tyrol does not own, directly or indirectly, at least 51% of the outstanding shares of the Lessee in circumstances where the Province of Tyrol is rated at least "A-" by Standard & Poor's or "A3" by Moody's (or, if rated by both Standard and Poor's and Moody's, "A-" by Standard & Poor's and "A3" by Moody's), subject to a requirement, (a) such ownership may only be maintained indirectly if (x) there is not more than one entity between the Province of Tyrol and the Lessee and (y)(i) the Province of Tyrol directly owns at least 75% plus one share of the voting stock of the intermediate entity and (ii) the intermediate entity directly owns at least 51% of the voting stock in the Lessee and (b) if such ownership is maintained indirectly in the manner contemplated by the preceding clause (a), an End of Term Credit Event will not arise or occur).
VIII Vertragsverletzung durch den Leasingnehmer
Lessee Event of Default (Leases; Section 14).
A "Lessee Event of Default" may be generally summarized as follows:
a) failure to make required payments (notice required unless the payment relates to payment of a TV Amount (or any amount determined by reference thereto) or the Purchase Option Price (if the Lessee Purchase Option shall have been exercised) (14(a));
b) any representation or warranty made by the Lessee in any Operative Document (other than the Tax Indemnity Agreement) shall be discovered at any time to be untrue or inaccurate in any material respect (subject to cure period of up to 150 days) (14(b));
(…)
(d) the Lessee shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it (other than as referred to in any other paragraph of this Section 14) under any Operative Document in any material respect (other than the Tax Indemnity Agreement), and such failure shall continue to be unremedied for a period of 30 days (or, if such fai1ure is capable of being cured and provided the Lessee, the Head Lessor or the Access Grantor (as applicable) is diligently pursuing such cure, for an additional period, not to exceed 120 days (or, in the case of a failure by the Lessee to maintain the Series A PUA (or Acceptable Substitute Credit Protection provided in lien thereof) or to permit or suffer any termination thereof, in each case other than as a result of an act or omission of the Lessee, 150 days), as may be required in order for the Lessee to cure such failure) after the earlier to occur of the date upon which (x) the Lessee, the Head Lessor or the Access Grantor (as applicable) obtains Actual Knowledge of such failure and (y) notice of such failure shall have been given by the Beneficiary, the Lessor, any Lender or the Agent to the Lessee; provided, however, that, the occurrence of a "Trigger Event” (“Ausübungsereignis”) as defined in and pursuant to Section 3 of the Option Agreement shall, notwithstanding any other provision of the Operative Documents to the contrary, not by itself give rise to a Lessee Event of Default;
(…)
(k) failure to renew the Priority Notice Decree (to the extent renewal is required) and such failure shall continue to be unremedied for a period of 90 days after the date such renewal was required pursuant to Section 6 of the Option Agreement (14(m));
(l) the occurrence of a voluntary affirmative act to sell, transfer, pledge or otherwise similarly encumber any of the Facility, the Facility Site or the Key Site Parcels other than, in each case, as permitted by the Operative Documents (14(n));
Upon the occurrence of a Lessee Event of Default and at any time thereafter so long as the same shall be continuing, the Lessor will be entitled to exercise one or more of the remedies specified in Section 15 of the Leases. Such remedies may require the payment by TIWAG of the full TV Amounts (plus outstanding Lease Basic Rent, associated expenses and, where applicable, Section 467 related amounts) and/or the surrender to the Lessors of the Facility, and will be determined by the Lessors if such circumstance were ever to arise.
IX Option der Trusts auf den Kauf des Kraftwerks um U.S. $ 1
Facility Purchase Option (Participation Agreements; Section ll(d)(iv)).
If (x) a Lessee Event of Default has occurred and is continuing under the Lease, (y) the Lease shall have expired or terminated (other than by reason of the Lessee having exercised one of its purchase or termination options thereunder (other than an Obsolescence Termination)) or (z) the Lessee shall have given a FPO Notice (i.e., a voluntary notice by TIWAG given for purposes of providing an alternative to a Head Lease Filing), TIWAG is required to permit the respective Trusts to acquire legal title to an undivided interest in the Facility equal to their respective Undivided Interest Percentages of all such interests (the "Facility Purchase Option") for the Fair Market Sales Value thereof (with the understanding that the Fair Market Sales Value of the Undivided Interest for purposes of the Facility Purchase Option will be deemed to be $1).
X Berichtspflichten
Financial Statements; Annual Report.
Section ll(d)(iii)(A) of each Participation Agreement requires that TIWAG deliver to the Beneficiary, the Agent and each Lender copies of TIWAG’s annual financial statements (including without limitation a profit and loss statement, balance sheet and, if required by applicable accounting requirements, a statement of cash flows) for each fiscal year within 90 days after acceptance and approval of such financial statements by the respective competent corporate bodies of Lessee pursuant to Applicable Law or such earlier date as is commercially practicable and reasonable (and, in any event, no later than the earlier of the period required by Applicable Law and 240 days after the end of the relevant fiscal year).
Note the following:
• Such obligation begins with the annual report and financial statements apposite to the fiscal year ending December 31, 2001.
• Such financial statements are required to be made available in English and prepared in accordance with Applicable Law and generally accepted accounting principles applicable to TIWAG and audited by an independent auditor in accordance with Applicable Law.
Annual Compliance Certificates.
Section ll(d)(iii)(D) of the Participation Agreements require that TIWAG provide to the Beneficiary, the Agent and each Lender, at the time of delivery of the financial statements referred to in sub-clause C. above, a certificate of a Responsible Officer of TIWAG certifying to the following effect:
1. Such officer is familiar with and has reviewed the terms of the Operative Documents to which the Lessee is a party and has made, or caused to be made under such officer’s supervision, a review of the transactions and condition of the Lessee during the preceding fiscal year.
(…)
3. Other than in respect of Permitted Liens, no action has been taken by TIWAG during the preceding twelve months to create any encumbrances or Liens of record on the Facility in violation of the terms of the Operative Documents or, if such certification cannot be made, specifying the reasons therefore.
4. Indicating that there is documentation, attached to such certificate and effective as of a date not more than 15 Business Days prior to the delivery of such certificate, that sets forth:
i. the credit ratings (if any) of any entity then providing Supplemental Debt Collateral or Credit Support as required to be provided under Section 11(k) or Section 12, respectively, of the Participation Agreement;
ii. the credit rating, if any, applicable to the Province of Tyrol, the Lessee, any Lessee Guarantor and any Lessee Affiliate Guarantor; and
iii. the percentage of the Lessee’s outstanding economic and voting and non-voting (if any) capital stock which is owned, directly or indirectly, by the Province of Tyrol and, if such shares are owned indirectly, a description of the nature of such indirect ownership.
5. To the extent that a Head Lease Filing Event has not occurred by reason of the satisfaction of the financial covenant tests referred to in the proviso to the definition of "Head Lease Filing Event", attaching appropriate calculation certificates evidencing satisfaction of such financial covenant tests.
Facility Related Information.
Pursuant to Section 1l(d)(iii)(F) of the Participation Agreements, TIWAG is required to provide to the Beneficiary, at the time of delivery of the financial statements referred to in sub-clause C. above, a report in respect of the preceding calendar year, which report shall contain a brief summary description of the following matters in respect of the Facility:
1. Energy production, including availability, output, water usage and operational outages.
2. Matters relating to material violations of Environmental Laws or notices from or to any environmental agency or other Governmental Authority with respect to purported, actual or alleged material violations of Environmental Laws or with respect to material Environmental Claims.
3. Total estimated cost of all Lease Modifications with a description in reasonable detail of each Lease Modification (or related group of Lease Modifications) having a value in excess of Euros 15,000,000.
4. Any sublease transactions relating to the use of the Facility entered into during the preceding calendar year.
5. Material amendments, modifications, renewals, or terminations and non-renewals with respect to any Concession.
6. Any annual environmental and safety report filed with any Governmental Authority.
(…)
Conditional Obligations.
Interim Financial Statements.
TIWAG is required to provide the Beneficiary, the Agent and each Lender with copies of any interim financial statements (in English if available) which it may prepare for public dissemination from time to time within 30 days after dissemination thereof. (Participation Agreements, Section ll(d)(iii)(B)).
For ease of reference, the full text of Section ll(d)(iii)(B) of the Participation Agreements is attached as Annex F.
Additional Financial Information.
Within 30 days after receipt by TIWAG of the Beneficiary's or any Lender's written request therefor, TIWAG is required to provide such explanations or related additional information as the Beneficiary or such Lender may reasonably request with respect to any information contained in any financial statement provided by TIWAG in connection with the Transaction (understanding that (A) TIWAG will not be required to provide (x) any information which it may be prohibited from disclosing pursuant to Applicable Law or (y) any confidential information unless TIWAG is not prohibited from disclosing such confidential information pursuant to any third party confidentiality arrangements and the Beneficiary or such Lender, as applicable, agree to execute and deliver to TIWAG a confidentiality agreement which is reasonably acceptable to TIWAG in respect of such confidential information and (B) the Beneficiary or such Lender, as applicable, is required to pay the reasonable costs and expenses (to the extent such costs and expenses are not de minimis) incurred by TIWAG in assembling and providing such information (including any costs associated with preparing English language translations thereof)). (Participation Agreements, Section 11(d)(iii)(C)
Notice Requirements.
To the extent any notices are required to be given or documents delivered in connection with the performance of a Transaction Covenant, care should be taken to comply with the language, address and form requirements reflected in Sections 22(a) and 22(q) of the Participation Agreements, particularly with respect to the possibility of the imposition of Austrian Stamp Taxes. For ease of reference, such Sections 22(a) and 22(q) are attached as Annex A to this Part III.
Since TIWAG's primary address for notices is located in Frankfurt, Germany, a necessary part of the Compliance Program will be to establish the manner in which notices are promptly and effectively communicated to TIWAG's offices in the Province of Tyrol.
English Language Requirements.
All notices, financial statements, documents, written information and other correspondences to be provided by TIWAG in connection with the Transaction are required to be made or given, as applicable, in the English language (Participation Agreements, Section 22(i)).
Costs Associated with Compliance.
As a general matter, all costs associated with compliance with the Transaction Covenants will be for the account of TIWAG.
XI Inspektionen
Inspections (Leases; Section 12).
As contemplated by Section 12 of each Lease, on not more than two occasions per year during the Lease Terms, each of the relevant Beneficiary, Lessor, Agent and Lender and their respective authorized representatives may, upon provision of reasonable notice, visit the Facility and the Facility Site and, during any such visit, inspect the Facility and the Facility Site and the records of the Lessee relating to the operation and maintenance (including details as to in-service experience and acceptance testing) of the Facility.
XII Weitere Einschränkungen
Merger, Sale of Assets, Etc. (Participation Agreements; Section 11(d)(ii)(C)). (Veräußerungsverbot)
TIWAG has agreed that it will not be consolidated or merged with or into, or liquidated into, any corporation, partnership or other entity (or engage in any similar transaction by which two separate legal entities become one legal entity) and agreed that it will not spin-off, convey, transfer, assign or lease all or substantially all its assets to any Person, whether in a single transaction or a series of related transactions (a "Merger Event"), unless (x) required to do so by the terms and subject to the conditions of the Operative Documents or the Other Operative Documents as such Other Operative Documents are in effect as of the Closing Date or (y) the conditions set forth in Section 11 (d)(ii)(C) are satisfied.
Concessions; Facility Agreements (Participation Agreements; Section 11 (d) (v)).
Unless TIWAG has exercised one of its purchase or termination options (other than an Obsolescence Termination) in accordance with the respective Leases, TIWAG has agreed that it will:
(…)
7. not enter into any agreement with respect to the Facility or Facility Site that could reasonably be expected to adversely affect in any material respect any right or benefit intended to be afforded to the Beneficiary, the Trust, the Agent, or any Lender under the Operative Documents or that in any event would, except as contemplated or otherwise permitted by the Operative Documents in connection with the exercise of a Lessor End of Term Option, be binding on the Facility, such Persons or any of them after the expiration of the Lease Term.
Sovereign Immunity (Participation Agreements; Section 22(g)).
(Die TIWAG verzichtet unwiderrufbar darauf, sich auf hoheitliche Immunität zurückzuziehen)
TIWAG has irrevocably agreed that it will not assert any defense based on sovereign immunity as against the Trust, the Trustee, the Agent, any Lender, the Beneficiary or their respective successors and assigns in any legal proceedings, whether in the United States of America, Austria or elsewhere, related to or arising out of any Operative Document.
21.3.2005
Teil 8: Ganz legale Rechtsbrüche
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