exv4w9






Exhibit 4.9




Execution Version




 

 






U.S.$140,000,000




AMENDED AND RESTATED WORKING CAPITAL FACILITY CREDIT AGREEMENT



among



CONSTRUCTORA DE PROYECTOS HIDROELECTRICOS, S.A. DE C.V.,



as Borrower,



THE SEVERAL TRANCHE A LENDERS FROM TIME TO TIME PARTIES HERETO,



THE SEVERAL TRANCHE B LENDERS FROM TIME TO TIME PARTIES HERETO,



and



WESTLB AG, NEW YORK BRANCH,



as Working Capital Facility Administrative Agent



Dated as of October 13, 2010



 

 














 









 














CONTENTS




	 	 	 	 	 	 	 
	Clause	 	 	 	Page	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 1
	 	 	 	 
	 
	 	DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.1
	 	Defined Terms	 	 	1	 
	Section 1.2
	 	Other Definitional Provisions	 	 	8	 
	Section 1.3
	 	Rules of Construction	 	 	8	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 2
	 	 	 	 
	 
	 	AMOUNT AND TERMS OF COMMITMENTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.1
	 	Working Capital Facility Commitments	 	 	8	 
	Section 2.2
	 	Procedure for Working Capital Facility Borrowings	 	 	9	 
	Section 2.3
	 	Repayment of Working Capital Loans	 	 	11	 
	Section 2.4
	 	Optional Prepayments	 	 	11	 
	Section 2.5
	 	Conversion and Continuation Options	 	 	12	 
	Section 2.6
	 	Interest Rates and Payment Dates	 	 	12	 
	Section 2.7
	 	Computation of Interest and Fees	 	 	13	 
	Section 2.8
	 	Inability to Determine Interest Rate	 	 	13	 
	Section 2.9
	 	Pro Rata Treatment and Payments	 	 	14	 
	Section 2.10
	 	Fees	 	 	16	 
	Section 2.11
	 	Cancellation of Working Capital Facility Commitments	 	 	17	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 3
	 	 	 	 
	 
	 	REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.1
	 	Representations and Warranties of the Borrower	 	 	17	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 4
	 	 	 	 
	 
	 	CONDITIONS PRECEDENT	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.1
	 	Conditions Precedent to the Initial Closing Date and the Initial Working Capital Facility Borrowing	 	 	17	 
	Section 4.2
	 	Conditions Precedent to Each Working Capital Facility Borrowing	 	 	18	 
	Section 4.3
	 	Conditions Precedent to the Initial Disbursement of Tranche A-2 Loans and Tranche B Loans	 	 	19	 






 









 






	 	 	 	 	 	 	 
	Clause	 	 	 	Page	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 5
	 	 	 	 
	 
	 	AFFIRMATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.1
	 	Affirmative Covenants of the Borrower	 	 	21	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 6
 NEGATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.1
	 	Negative Covenants of the Borrower	 	 	21	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 7
 REPORTING OBLIGATIONS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.1
	 	Reporting Obligations of the Borrower	 	 	21	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 8
 EVENTS OF DEFAULT	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.1
	 	Events of Default; Remedies	 	 	21	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 9
	 	 	 	 
	 
	 	THE WORKING CAPITAL FACILITY ADMINISTRATIVE
	 	 	 	 
	 
	 	AGENT	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.1
	 	Appointment	 	 	22	 
	Section 9.2
	 	Delegation of Duties	 	 	22	 
	Section 9.3
	 	Exculpatory Provisions	 	 	23	 
	Section 9.4
	 	Reliance by Working Capital Facility Administrative Agent	 	 	23	 
	Section 9.5
	 	Notice of Default	 	 	23	 
	Section 9.6
	 	Non-Reliance on Working Capital Facility Administrative Agent and Other Working Capital Facility Lenders	 	 	24	 
	Section 9.7
	 	Indemnification	 	 	24	 
	Section 9.8
	 	Agent in Its Individual Capacity	 	 	25	 
	Section 9.9
	 	Successor Working Capital Facility Administrative Agent	 	 	25	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 10
 MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.1
	 	Incorporation of Miscellaneous Provisions by Reference	 	 	26	 
	Section 10.2
	 	Amendments and Waivers	 	 	26	 
	Section 10.3
	 	Notices	 	 	27	 






 









 






	 	 	 	 	 	 	 
	Clause	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 10.4
	 	Survival of Representations and Warranties	 	 	27	 
	Section 10.5
	 	Successors and Assigns; Participations and Assignments	 	 	27	 
	Section 10.6
	 	Adjustments; Set off	 	 	30	 
	Section 10.7
	 	Counterparts	 	 	31	 
	Section 10.8
	 	Severability	 	 	31	 
	Section 10.9
	 	Integration	 	 	31	 
	Section 10.10
	 	GOVERNING LAW, SUBMISSION TO JURISDICTION, ETC	 	 	31	 






SCHEDULES:





	1	 	Commitments





EXHIBITS:





	A 	 	Form of Assignment and Assumption
	B 	 	Form of Interest Rate Notice
	C 	 	Form of Working Capital Facility Notice of Borrowing
	D 	 	Form of Disbursement LC
	E 	 	Form of Guarantor Confirmation






 











 





     AMENDED AND RESTATED WORKING CAPITAL FACILITY CREDIT AGREEMENT (this
“Agreement”), dated as of October 13, 2010, among CONSTRUCTORA DE PROYECTOS
HIDROELECTRICOS, S.A. DE C.V., a sociedad anónima de capital variable organized under the laws of
Mexico (the “Borrower”), the Tranche A Lenders (as defined below), the Tranche B Lenders
(as defined below), and WESTLB AG, NEW YORK BRANCH, as working capital facility administrative
agent (the “Working Capital Facility Administrative Agent”).



WITNESSETH;




     WHEREAS, the Borrower, the Working Capital Facility Lenders party thereto and the Working
Capital Facility Administrative Agent have entered into the Working Capital Facility Credit
Agreement (the “Existing Working Capital Facility Credit Agreement”) dated as of October
19, 2007;



     WHEREAS, the Working Capital Facility Lenders party to the Existing Working Capital Facility
Credit Agreement have, prior to the Amendment Effective Date, extended certain Working Capital
Loans to the Borrower pursuant to the Existing Working Capital Facility Credit Agreement (such
Working Capital Loans, the “Existing Working Capital Loans”);



     WHEREAS, the Borrower has requested that the Existing Working Capital Loans be deemed to be
Tranche A-1 Loans, that the Tranche A Lenders and Tranche B Lenders extend Working Capital Loans
on the terms and conditions set forth herein to the Borrower in an aggregate amount of up to one
hundred and forty million U.S. Dollars (U.S.$140,000,000) and that the Existing Working Capital
Facility Credit Agreement be amended and restated in its entirety as set forth in this Agreement;
and



     WHEREAS, the Working Capital Facility Lenders under the Existing Working Capital Facility
Credit Agreement and the Working Capital Facility Administrative Agent are willing to amend and
restate the Existing Working Capital Facility Credit Agreement, the Tranche B Lenders are willing
to become party to this Agreement and the Tranche A Lenders and the Tranche B Lenders are willing
to extend to the Borrower from time to time Working Capital Loans on the terms and subject to the
conditions set forth herein.



     NOW, THEREFORE, the parties hereto hereby agree (a) that the Existing Working Capital
Facility Credit Agreement is hereby amended and restated, and (b) further as follows:



ARTICLE 1

DEFINITIONS




     Section 1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1:



     “Additional Works”: means works that (a) have been requested by CFE following the
date of execution of the Public Works Contract, (b) were performed at unit prices (whether such
unit prices are contemplated in the Public Works Contract or subsequently agreed between CFE and
the Borrower), (c) were not included in the original contractual quantities and (d) do not
constitute Project Costs included in the Construction Budget delivered pursuant to Section



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4.01(i) of the Common Agreement and attached as Annex F to the certificate, dated as of November
6, 2007, delivered by the Borrower to the Intercreditor Agent.




     “Agent Indemnitee”: as defined in Section 9.7.



     “Agreement”: as defined in the preamble hereto.



     “Amendment Effective Date” means October 13, 2010.



     “Amendment No.1 to the Depositary Agreement”: means an amendment to the Depositary
Agreement made in accordance with the terms of the Financing Documents and in form and substance
acceptable to the Working Capital Facility Administrative Agent and the Working Capital Facility
Lenders.



     “Amendment No.1 to the Intercreditor Agreement”: means an amendment to the
Intercreditor Agreement made in accordance with the terms of the Financing Documents and in form
and substance acceptable to the Working Capital Facility Administrative Agent and the Working
Capital Facility Lenders.



     “Amendment No.1 to the U.S. Security Agreement”: means an amendment to the U.S.
Security Agreement made in accordance with the terms of the Financing Documents and in form and
substance acceptable to the Working Capital Facility Administrative Agent and the Working Capital
Facility Lenders.



     “Applicable Margin”: means, on any date of determination, for an ABR Loan: 1.00% per
annum, or for a Eurodollar Loan: 0.75% per annum.



     “Applicable Expansion Margin”: means, on any date of determination, for each:




     (i) Tranche A-2 Loan that is an ABR Loan, 3.25% per annum;




     (ii) Tranche A-2 Loan that is a Eurodollar Loan, 3.00% per annum;




     (iii) Tranche B Loan that is an ABR Loan, 4.50% per annum; and




     (iii) Tranche B Loan that is a Eurodollar Loan, 4.25% per annum.



     “Approved Fund”: as defined in Section 10.5(b).



     “Assignee”: as defined in Section 10.5(b).



     “Assignment”: an Assignment and Assumption, substantially in the form of Exhibit
A.



     “Availability Period”: with respect to the Working Capital Loans, the period from the
Signing Date until the earliest of (i) the date that is thirty (30) days after the Signing Date in
the event that the Initial Closing Date shall not have occurred by such date, (ii) full
utilization of the amounts available under the aggregate Working Capital Facility Commitments, and
(iii) the Loan Maturity Date.



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     “Benefitted Lender”: as defined in Section 10.6(a).



     “Borrower”: as defined in the preamble hereto.



     “Borrowing Date”: any Business Day specified by the Borrower as a date on which the
Borrower requests the Working Capital Facility Lenders to make Working Capital Loans hereunder.



     “Consent, Joinder, Waiver and Amendment No.3 to the Common Agreement”: means a
consent, joinder, waiver and amendment to the Common Agreement made in accordance with the terms of
the Financing Documents and in form and substance acceptable to the Working Capital Facility
Administrative Agent and the Working Capital Facility Lenders.



     “Cost Certificate”: a certificate, in substantially the form of Schedule I to
Exhibit C hereto, duly executed and delivered by the Borrower’s Financial Representative to
the Working Capital Facility Administrative Agent and the Independent Engineer pursuant to Section
4.02(a) of the Common Agreement and Section 2.2(b) of this Agreement in connection with each
Working Capital Facility Borrowing.



     “Critical Event”: has the meaning assigned to Evento Crítico in the Public Works
Contract.



     “Critical Event Date”: has the meaning assigned to Fecha de Evento Crítico in the
Public Works Contract.



     “Disbursement LC Provider”: an Acceptable LC Provider (or any other financial
institution acceptable to the Working Capital Facility Administrative Agent in its sole discretion)
issuing or, if applicable, confirming any Disbursement LC.



     “Disbursement LCs”: means, collectively, the standby letters of credit, each in
substantially the form of Exhibit D to this Agreement (or otherwise in form and substance
acceptable to the Working Capital Facility Administrative Agent), issued or confirmed by the
Disbursement LC Providers in favor of the Working Capital Facility Administrative Agent.



     “Existing Working Capital Facility Credit Agreement”: as defined in the Recitals.



     “Existing Working Capital Loans”: as defined in the Recitals.



     “Funding Office”: the office of the Working Capital Facility Administrative Agent set
forth on its signature page to the Common Agreement or such other office as may be specified from
time to time by the Working Capital Facility Administrative Agent as its funding office by written
notice to the Borrower and the Working Capital Facility Lenders.



     “ICA Confirmation”: written confirmation from ICA, substantially in the form of
Exhibit E hereto, that the ICA Guarantee shall remain in full force and effect following the
Amendment Effective Date.



3









 





     “Interest Payment Date”: (a) as to any ABR Loan, the last day of each calendar month
to occur while such ABR Loan is outstanding and the final maturity date of such ABR Loan, (b) as
to any Eurodollar Loan having an Interest Period of one month, the last day of such Interest
Period and (c) as to any Working Capital Loan (other than any Working Capital Loan that is an ABR
Loan), the date of any repayment or prepayment made in respect thereof.



     “Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one month thereafter, as set forth by the Borrower in its Working Capital Facility Notice
of Borrowing or notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one month thereafter, as set forth by the Borrower
by irrevocable notice to the Working Capital Facility Administrative Agent not later than 11:00
A.M., New York City time, on the date that is three Business Days prior to the last day of the
then current Interest Period with respect thereto; provided that, all of the foregoing
provisions relating to Interest Periods are subject to the following:




     (i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Business Day;




     (ii) the Borrower may not select an Interest Period that would extend beyond the Loan
Maturity Date;




     (iii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of a calendar month; and




     (iv) the Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such Eurodollar Loan.



     “Interest Rate Notice”: as defined in Section 2.2(c).



     “Monthly Payment Date”: the earlier of (i) the date of any Working Capital Facility
Borrowing in each calendar month and (ii), if no Working Capital Facility Borrowing has occurred
in a calendar month, the last Business Day of such calendar month.



     “Nacional and Alcance Confirmation”: written confirmation from Nacional and Alcance,
substantially in the form of Exhibit E hereto, that the Nacional Guarantee shall remain in full
force and effect following the Amendment Effective Date.



     “Participant”: as defined in Section 10.5(c).



     “Permissible Critical Event Delay”: means any delay in achieving any Critical Event
(other than the Provisional Acceptance of the First Unit or the Project Completion) on the date



4









 




set forth therefor on the Construction Schedule (a) that is excused pursuant to Section 13.3(b) of
the Public Works Contract, provided that (i) such delay does not equal or exceed sixty (60) days
in the aggregate and (ii) all documented financial costs incurred by the Borrower as a result of
such delay are being paid by CFE to the Borrower when due in accordance with the Public Works
Contract (or CFE has recognized in a writing executed after the occurrence of the relevant act or
omission of CFE (which writing is in form and substance satisfactory to the Working Capital
Facility Administrative Agent) its obligation to pay such amounts not later than on the Loan
Maturity Date), (b) that is excused pursuant to Section 13.3(a) of the Public Works Contract as
the result of Governmental Force Majeure, provided that such delay does not equal or exceed sixty
(60) days in the aggregate, (c) that is excused pursuant to Section 13.3(a) of the Public Works
Contract as the result of an Event of Force Majeure which does not continue for more than one
hundred eighty (180) consecutive days or two hundred seventy (270) cumulative days, (d) that is
excused pursuant to a written waiver validly executed and delivered by CFE, a copy of which
(certified as true, correct and complete by the Borrower) shall have been provided to the Working
Capital Facility Administrative Agent or (e) that is attributable to any other reason (other than
a Commission PWC Event of Default or an Event of Force Majeure), provided that (i) such delay does
not equal or exceed thirty (30) days and (ii) the Working Capital Facility Administrative Agent is
satisfied that all amounts payable to CFE under the Public Works Contract during the period of
such delay will be made pursuant to the Public Works Contract and the Performance Guarantee, and,
in each of (a), (b), (c) and (d), provided CFE shall provided a written acknowledgement to the
Borrower, a copy of which (certified as true, correct and complete by the Borrower) shall have
been provided to the Working Capital Facility Administrative Agent, that the delay is excusable
under Section 13.3(a), 13.3(b) of the Public Works Contract or such waiver, as applicable;
provided that after giving effect to any such delay under (a), (b), (c), (d) and (e) above the
representations and warranties set forth in subsection 5.01(dd) of the Common Agreement are true
and correct.




     “Register”: as defined in Section 10.5(b).



     “Tranche A Commitment”: collectively, the Tranche A-1 Commitment and the Tranche A-2
Commitment.



     “Tranche A Lenders”: collectively, the Tranche A-1 Lenders and the Tranche A-2
Lenders.



     “Tranche A Loan”: each Tranche A-1 Loan and Tranche A-2 Loan.



     “Tranche A-1 Borrowing”: means a borrowing under this Agreement consisting of Tranche
A-1 Loans of the same Type and Interest Period and made on the same day by one or more Tranche A-1
Lenders, as thereafter continued and/or converted.



     “Tranche A-1 Commitment”: as to any Tranche A-1 Lender, the obligation of such
Tranche A-1 Lender to make a Tranche A-1 Loan to the Borrower in a principal amount not to exceed
the amount set forth under the heading “Commitment” opposite such Tranche A-1 Lender’s name on
Schedule 1 or in the Assignment pursuant to which such Tranche A-1 Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms



5









 




hereof. As of the Amendment Effective Date, the aggregate amount of the Tranche A-1 Commitments
shall be eighty million U.S. Dollars (U.S.$80,000,000).




     “Tranche A-1 Lenders”: the several banks and other financial institutions or entities
identified as “Tranche A-1 Lenders” in the signature pages hereof or which become Tranche A-1
Lenders pursuant to the terms of this Agreement; provided, that unless the context
otherwise requires, each reference herein to the Tranche A-1 Lenders shall be deemed to include
any Conduit Lender who extends a Tranche A-1 Loan to the Borrower.



     “Tranche A-1 Loan”: any loan made by any Tranche A-1 Lender pursuant to this
Agreement.



     “Tranche A-1 Percentage”: in respect of any Tranche A-1 Lender, the percentage set
forth next to such Lender’s name under the column entitled “Tranche A-1 Percentage” on
Schedule 1 (as reduced or increased by later Assignments) or in the Assignment pursuant to
which such Lender became a Tranche A-1 Lender.



     “Tranche A-2 Borrowing”: means a borrowing under this Agreement consisting of Tranche
A-2 Loans of the same Type and Interest Period and made on the same day by one or more Tranche A-2
Lenders, as thereafter continued and/or converted.



     “Tranche A-2 Commitment”: as to any Tranche A-2 Lender, the obligation of such
Tranche A-2 Lender to make a Tranche A-2 Loan to the Borrower in a principal amount not to exceed
the amount set forth under the heading “Commitment” opposite such Tranche A-2 Lender’s name on
Schedule 1 or in the Assignment pursuant to which such Tranche A-2 Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms hereof. As of the
Amendment Effective Date, the aggregate amount of the Tranche A-2 Commitments shall be thirty
million U.S. Dollars (U.S.$30,000,000).



     “Tranche A-2 Lenders”: the several banks and other financial institutions or
entities identified as “Tranche A-2 Lenders” in the signature pages hereof or which become Tranche
A-2 Lenders pursuant to the terms of this Agreement; provided, that unless the context
otherwise requires, each reference herein to the Tranche A-2 Lenders shall be deemed to include
any Conduit Lender who extends a Tranche A-2 Loan to the Borrower.



     “Tranche A-2 Loan”: any loan made by any Tranche A-2 Lender pursuant to this
Agreement.



     “Tranche A-2 Percentage”: in respect of any Tranche A-2 Lender, the percentage set
forth next to such Lender’s name under the column entitled “Tranche A-2 Percentage” on
Schedule 1 (as reduced or increased by later Assignments) or in the Assignment pursuant to
which such Lender became a Tranche A-2 Lender.



     “Tranche B Borrowing”: means a borrowing under this Agreement consisting of Tranche B
Loans of the same Type and Interest Period and made on the same day by one or more Tranche B
Lenders, as thereafter continued and/or converted.



6









 





     “Tranche B Commitment”: as to any Tranche B Lender, the obligation of such Tranche B
Lender to make a Tranche B Loan to the Borrower in a principal amount not to exceed the amount set
forth under the heading “Commitment” opposite such Tranche B Lender’s name on Schedule 1
or in the Assignment pursuant to which such Tranche B Lender became a party hereto, as the same
may be changed from time to time pursuant to the terms hereof. As of the Amendment Effective Date,
the aggregate amount of the Tranche B Commitments shall be thirty million U.S. Dollars
(U.S.$30,000,000).



     “Tranche B Lenders”: the several banks and other financial institutions or entities
identified as “Tranche B Lenders” in the signature pages hereof or which become Tranche B Lenders
pursuant to the terms of this Agreement; provided, that unless the context otherwise
requires, each reference herein to the Tranche B Lenders shall be deemed to include any Conduit
Lender who extends a Tranche B Loan to the Borrower.



     “Tranche B Loan”: any loan made by any Tranche B Lender pursuant to this Agreement.



     “Tranche B Percentage”: in respect of any Tranche B Lender, the percentage set forth
next to such Lender’s name under the column entitled “Tranche B Percentage” on Schedule 1
(as reduced or increased by later Assignments) or in the Assignment pursuant to which such Lender
became a Tranche B Lender.



     “United States”: the United States of America.



     “Working Capital Facility Administrative Decision”: means (i) the determination of
Eurodollar Base Rate and ABR from time to time and (ii) any of the other routine and
administrative decisions, actions, authorizations, directions, approvals, determinations, waivers
and consents that (a) do not relate to a Default or Event of Default (except to the limited extent
set forth in the proviso in Section 9.5) and could not reasonably be expected to result in a
Default or Event of Default, (b) could not have a Material Adverse Effect on the interests of any
Secured Party and (c) do not constitute Fundamental Decisions or require the instruction or
direction of the Working Capital Facility Administrative Agent by any Working Capital Facility
Lender or Working Capital Facility Lenders or their approval or consent pursuant to the Common
Agreement, the Intercreditor Agreement or the Working Capital Facility Credit Agreement.



     “Working Capital Facility Commitment”: collectively, the Tranche A Commitment and the
Tranche B Commitment.



     “Working Capital Facility Expansion Documents”: collectively, (a) this Agreement, (b)
Consent, Joinder, Waiver and Amendment No.3 to the Common Agreement, (c) Amendment No.1 to the
Intercreditor Agreement (d) Amendment No.1 to the U.S. Security Agreement and (e) Amendment No. 1
to Depositary Agreement.



     “Working Capital Facility Lenders”: collectively, the Tranche A Lenders and the
Tranche B Lenders.



     “Working Capital Facility Notice of Borrowing”: means the notice and related Cost
Certificate, in substantially the form of Exhibit C hereto, duly executed and delivered by
the



7









 




Borrower’s Financial Representative to the Working Capital Facility Administrative Agent and the
Independent Engineer pursuant to Section 4.02(a) of the Common Agreement and Section 2.2(b) of
this Agreement in connection with each Working Capital Facility Borrowing. Each Working Capital
Facility Notice of Borrowing shall specify the amount of the requested Working Capital Facility
Borrowing.




     “Working Capital Facility Percentage”: in respect of any Working Capital Facility
Lender, a fraction (expressed as a percentage) (a) the numerator of which is the sum of (i) the
aggregate outstanding principal amount of Working Capital Loans held by such Lender and (ii) the
unutilized portion of the aggregate amount of Working Capital Facility Commitments of such Lender
and (b) the denominator of which is the sum of (i) the aggregate outstanding principal amount of
all Working Capital Loans held by all Working Capital Facility Lenders and (ii) the aggregate
unutilized Working Capital Facility Commitments.



     “Working Capital Loan”: each Tranche A Loan and Tranche B Loan.



     Section 1.2 Other Definitional Provisions. (a) All capitalized terms used and not
defined herein shall have the respective meanings assigned thereto in the Common Agreement.



          (b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.




     Section 1.3 Rules of Construction. The rules of construction set forth in Section
1.03 of the Common Agreement shall apply as if it were fully set out herein; provided, that, the
words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of this Agreement,
and section, subsection, schedule and exhibit references are to this Agreement unless otherwise
specified.



ARTICLE 2

AMOUNT AND TERMS OF COMMITMENTS




     Section 2.1 Working Capital Facility Commitments.



          (a) Subject to the terms and conditions hereof, each Tranche A-1 Lender severally agrees to
make Tranche A-1 Loans to the Borrower from time to time during the Availability Period in an
aggregate principal amount at any one time outstanding which does not exceed the amount of such
Tranche A-1 Lender’s Tranche A-1 Commitment. During the Availability Period the Borrower may use
the Tranche A-1 Commitments by borrowing, prepaying the Tranche A-1 Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. All Existing Working Capital
Loans shall be deemed to be Tranche A-1 Loans and shall accordingly reduce the Tranche A-1
Commitments of each Working Capital Facility Lender to which such Existing Working Capital Loans
are owing. The Tranche A-1 Commitments shall terminate in their entirety upon the expiration of
the Availability Period.










8









 








          (b) Subject to the terms and conditions hereof, each Tranche A-2 Lender severally agrees to
make Tranche A-2 Loans to the Borrower from time to time during the Availability Period in an
aggregate principal amount at any one time outstanding which does not exceed the amount of such
Tranche A-2 Lender’s Tranche A-2 Commitment. During the Availability Period the Borrower may use
the Tranche A-2 Commitments by borrowing, prepaying the Tranche A-2 Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The Tranche A-2 Commitments
shall terminate in their entirety upon the expiration of the Availability Period.




          (c) Subject to the terms and conditions hereof, each Tranche B Lender severally agrees to
make Tranche B Loans to the Borrower from time to time during the Availability Period in an
aggregate principal amount at any one time outstanding which does not exceed the amount of such
Tranche B Lender’s Tranche B Commitment. During the Availability Period the Borrower may use the
Tranche B Commitments by borrowing, prepaying the Tranche B Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The Tranche B Commitments
shall terminate in their entirety upon the expiration of the Availability Period.




          (d) The failure of any Working Capital Facility Lender to make the Working Capital Loan
required to be made by it as part of any Working Capital Facility Borrowing shall not relieve any
other Working Capital Facility Lender of its obligation hereunder to make its respective Working
Capital Loan on such Borrowing Date, but no Working Capital Facility Lender shall be responsible
for the failure of any other Working Capital Facility Lender to make the Working Capital Loan to
be made by such other Working Capital Facility Lender on any date.




     Section 2.2 Procedure for Working Capital Facility Borrowings.



          (a) The Borrower may request disbursements of Tranche A-2 Loans and Tranche B Loans only in
the event that (i) no Tranche A-1 Commitments remain available to be borrowed or (ii) Tranche A-1
Loans in the total amount of the available Tranche A-1 Commitment are being requested in the
Working Capital Facility Notice of Borrowing pursuant to which the Borrower is requesting any
disbursement of Tranche A-2 Loans and Tranche B Loans. The Borrower shall request disbursements of
Tranche A-2 Loans and Tranche B Loans pro rata to the aggregate unutilized Tranche A-2
Commitment and the aggregate unutilized Tranche B Commitment. All Working Capital Loans to be made
as part of each Working Capital Facility Borrowing shall consist of Working Capital Loans of the
same Type and Interest Period.




          (b) Not later than the fifth (5th) Business Day prior to the date of any proposed Working
Capital Facility Borrowing (or such later date agreed to by the Working Capital Facility
Administrative Agent in its sole discretion), the Borrower shall deliver a Working Capital
Facility Notice of Borrowing to the Working Capital Facility Administrative Agent and the
Independent Engineer accompanied by the documents specified in the Working Capital Facility Notice
of Borrowing and specifying therein (i) the requested date of such Working Capital Facility
Borrowing and (ii) the respective aggregate amount of Tranche A-1 Loans, Tranche A-2 Loans and
Tranche B Loans constituting such proposed Working Capital Facility Borrowing. The Borrower shall
be entitled to request only one Working Capital Facility




9









 





Borrowing during any calendar month; provided, however, that in any calendar month in which any
interest or Fee is due and payable pursuant to Section 2.6 or Sections 2.10(a), (b) or (c), as
applicable, the Borrower shall be entitled to request additional Working Capital Facility
Borrowings (with each such Working Capital Facility Borrowing limited to the amount of, and for
the purposes of paying, such interest and Fees due and payable pursuant to Section 2.6 or Sections
2.10(a), (b) or (c), as applicable, and any Taxes payable with respect to such interest and Fees)
or with the prior written consent of the Working Capital Facility Administrative Agent, which may
be granted or withheld in its sole discretion. Each Working Capital Facility Notice of Borrowing
shall be irrevocable and binding on the Borrower.



          (c) In connection with each proposed Working Capital Facility Borrowing (other than any
Working Capital Facility Borrowing limited to the amount of, and for the purposes of paying,
interest and Fees due and payable pursuant to Section 2.6 or Sections 2.10(a), (b) or (c), as
applicable, and any Taxes payable with respect to such interest and Fees), the Borrower shall
deliver a further notice (an “Interest Rate Notice”) to the Working Capital Facility
Administrative Agent in substantially the form of Exhibit B hereto, specifying the
requested Interest Period for each such Working Capital Loan (and, subject to Section 2.2(a), the
Type of such Working Capital Loans). Each Interest Rate Notice shall be given by the Borrower to
the Working Capital Facility Administrative Agent not later than 11:00 a.m. (New York City time)
on the third Business Day prior to the date of the proposed Working Capital Facility Borrowing.
The Working Capital Facility Administrative Agent shall give each Working Capital Facility Lender
notice of each Interest Rate Notice within one (1) Business Day after the receipt thereof by the
Working Capital Facility Administrative Agent. Each Interest Rate Notice shall be irrevocable and
binding on the Borrower. If no Interest Rate Notice is received by the Working Capital Facility
Administrative Agent as provided in this Section 2.2(c), the interest rate applicable to such
Working Capital Facility Borrowing shall be the Eurodollar Rate with an Interest Period of one (1)
month (or such other Interest Period designated by the Working Capital Facility Administrative
Agent).




          (d) Each Working Capital Facility Lender shall, before 11:00 a.m. (New York City time) on the
date of any Working Capital Facility Borrowing, make available to the Working Capital Facility
Administrative Agent such Working Capital Facility Lender’s ratable portion of the Tranche A-1
Loans, Tranche A-2 Loans and/or Tranche B Loans constituting such Working Capital Facility
Borrowing, in accordance with Section 2.01(a) of the Common Agreement.




          (e) Notwithstanding anything to the contrary herein, in the event that on the date on which
any interest or Fees in respect of the Financing Documents are due and payable, the Borrower has
not delivered a Working Capital Facility Notice of Borrowing in accordance with this Agreement and
the other Financing Documents requesting a Working Capital Facility Borrowing in an amount and on
the date necessary to pay such interest or Fees, the Working Capital Facility Lenders shall have
the right to, and the Borrower hereby irrevocably authorizes the Working Capital Facility Lenders
to, make Working Capital Loans in the aggregate amount of such interest or Fees in respect of the
Financing Documents. In the event that the Borrower so fails to deliver such Working Capital
Facility Notice of Borrowing, the Working Capital Facility Administrative Agent may notify each
Working Capital Facility Lender of the failure of the Borrower to so deliver such Working Capital
Facility Notice of Borrowing and request that each




10









 




Working Capital Facility Lender make available to the Working Capital Facility Administrative
Agent the ratable share of such aggregate amount of interest or Fees due and payable by the
Borrower in respect of the Financing Documents. Each Working Capital Facility Lender agrees to
make available to the Working Capital Facility Administrative Agent no later than 11:00 a.m. (New
York City time on the date so requested by the Working Capital Facility Administrative Agent) its
ratable share of the aggregate amount requested by the Working Capital Facility Administrative
Agent to be disbursed by the Working Capital Facility Lenders. Notwithstanding the foregoing, the
Borrower and each other party hereto hereby agrees that any delay in giving or any failure to give
the request referenced in this Section 2.2(e) or to make any such disbursement referenced in this
Section 2.2(e) shall not affect the rights of any Working Capital Facility Lender or of the
Working Capital Facility Administrative Agent under this Working Capital Facility Credit Agreement
or any other Transaction Document and the Borrower expressly acknowledges and agrees that neither
the Working Capital Facility Administrative Agent nor any of the Working Capital Facility Lenders
shall have any liability to the Borrower arising therefrom or in connection therewith.




          (f) Notwithstanding the foregoing, if the date for any proposed Working Capital Facility
Borrowing is a date on which the Borrower is obligated to pay interest on any Working Capital Loan
pursuant to Section 2.6 hereof, any Fees in respect of any Working Capital Facility Commitment
pursuant to Sections 2.10(a), (b) or (c) hereof or any Fees pursuant to any Fee Letters, then the
Working Capital Facility Administrative Agent may instruct, and in that event each Working Capital
Facility Lender shall, set off against its ratable portion of the Working Capital Loan to be made
on such day the entire amount of interest and Fees due and owing on such date in respect of such
Working Capital Facility Lender’s Working Capital Loans.




     Section 2.3 Repayment of Working Capital Loans. All Working Capital Loans then
outstanding and all accrued interest thereon shall be due and payable in full on the Loan Maturity
Date.



     Section 2.4 Optional Prepayments. The Borrower may at any time and from time to time
prepay the Working Capital Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Working Capital Facility Administrative Agent no later than
11:00 A.M., New York City time, three Business Days prior thereto, in the case of Eurodollar
Loans, and no later than 11:00 A.M., New York City time, one Business Day prior thereto, in the
case of ABR Loans, which notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 3.04 of the Common Agreement. Upon receipt of
any such notice the Working Capital Facility Administrative Agent shall promptly notify each
Working Capital Facility Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with accrued interest to
such date on the amount prepaid. Partial prepayments of the Working Capital Loans shall be in an
aggregate principal amount of U.S.$1,000,000. All prepayments of Working Capital Loans made
pursuant to this Section 2.4 shall be applied in accordance with Section 2.9(d).



11









 





     Section 2.5 Conversion and Continuation Options. (a) The Borrower may elect from time
to time to convert Eurodollar Loans to ABR Loans by giving the Working Capital Facility
Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M., New York
City time, on the Business Day preceding the proposed conversion date, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the Working Capital Facility Administrative Agent prior irrevocable notice of such
election no later than 11:00 A.M., New York City time, on the third Business Day preceding the
proposed conversion date (which notice shall specify the length of the initial Interest Period
therefor), provided that no ABR Loan may be converted into a Eurodollar Loan when any
Event of Default has occurred and is continuing and the Working Capital Facility Administrative
Agent or the Working Capital Facility Majority Lenders have determined in its or their sole
discretion not to permit such conversions. Upon receipt of any such notice the Working Capital
Facility Administrative Agent shall promptly notify each Working Capital Facility Lender thereof.



          (b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the Working
Capital Facility Administrative Agent, in accordance with the applicable provisions of the term
“Interest Period” set forth in Section 1.1, of the length of the next Interest Period to
be applicable to such Eurodollar Loans, provided that no Eurodollar Loan may be continued
as such when any Event of Default has occurred and is continuing and the Working Capital Facility
Administrative Agent has or the Working Capital Facility Majority Lenders have determined in its
or their sole discretion not to permit such continuations, and provided, further,
that if the Borrower shall fail to give any required notice as described above in this paragraph
or if such continuation is not permitted pursuant to the preceding proviso such Eurodollar Loans
shall be automatically converted to ABR Loans on the last day of such then expiring Interest
Period. Upon receipt of any such notice the Working Capital Facility Administrative Agent shall
promptly notify each Working Capital Facility Lender thereof.




     Section 2.6 Interest Rates and Payment Dates. (a) Each Eurodollar Loan that is a
Tranche A-1 Loan shall bear interest for each day during each Interest Period with respect thereto
at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable
Margin. Each Eurodollar Loan that is a Tranche A-2 Loan or Tranche B Loan shall bear interest for
each day during each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Expansion Margin.



          (b) Each ABR Loan that is a Tranche A-1 Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin. Each ABR Loan that is a Tranche A-2 Loan or Tranche B Loan
shall bear interest at a rate per annum equal to the ABR plus the Applicable Expansion Margin.




          (c) Following the occurrence and during the continuance of an Event of Default, a rate per
annum equal to 2.00% above the rate per annum required to be paid on a Eurodollar Loan or an ABR
Loan, as the case may be.




12









 





          (d) Any other amounts payable hereunder and under the other Working Capital Facility Loan
Documents that are not paid when due shall (to the fullest extent permitted by law) bear interest,
from the date when due until paid in full, at a rate per annum equal at all times to the Working
Capital Facility Lender Default Rate.




          (e) Interest shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) or (d) of this Section shall be payable from time to
time on demand.




          (f) In connection with each Working Capital Facility Borrowing pursuant to Section 2.2 and
each continuation and/or conversion pursuant to Section 2.5, the Working Capital Facility
Administrative Agent shall promptly notify each Working Capital Facility Lender of the applicable
interest rate with respect thereto promptly after determination thereof.




     Section 2.7 Computation of Interest and Fees. (a) Interest and fees payable pursuant
hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except
that, with respect to ABR Loans the rate of interest on which is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case
may be) day year for the actual days elapsed. The Working Capital Facility Administrative Agent
shall as soon as practicable notify the Borrower and the Working Capital Facility Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Working Capital Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements shall become effective
as of the opening of business on the day on which such change becomes effective. The Working
Capital Facility Administrative Agent shall as soon as practicable notify the Borrower and the
Working Capital Facility Lenders of the effective date and the amount of each such change in
interest rate.



          (b) Each determination of an interest rate by the Working Capital Facility Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower
and the Working Capital Facility Lenders in the absence of manifest error. The Working Capital
Facility Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a
statement showing the quotations used by the Working Capital Facility Administrative Agent in
determining any interest rate pursuant to Section 2.6.




     Section 2.8 Inability to Determine Interest Rate. If prior to the first day of any
Interest Period:



          (a) the Working Capital Facility Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, or




          (b) the Working Capital Facility Administrative Agent shall have received notice from the
Working Capital Facility Majority Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to such Working Capital
Facility Lenders (as conclusively certified by such Working Capital Facility Lenders) of making or
maintaining their affected Working Capital Loans during such Interest




13









 




Period, the Working Capital Facility Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the Working Capital Facility Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (y) any Working Capital Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as ABR Loans and (z) any outstanding Eurodollar Loans shall be converted, on the last
day of the then-current Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Working Capital Facility Administrative Agent, no further Eurodollar Loans shall be made or
continued as such, nor shall the Borrower have the right to convert Working Capital Loans to
Eurodollar Loans.




     Section 2.9 Pro Rata Treatment and Payments. (a) Each Tranche A-1 Borrowing by the
Borrower from the Tranche A-1 Lenders hereunder, each payment by the Borrower on account of the
commitment fee payable pursuant to Section 2.10(a) and any reduction of the Tranche A-1
Commitments of the Tranche A-1 Lenders shall be made pro rata according to the respective
Tranche A-1 Percentages of the Tranche A-1 Lenders.



          (b) Each Tranche A-2 Borrowing by the Borrower from the Tranche A-2 Lenders hereunder, each
payment by the Borrower on account of the commitment fee payable pursuant to Section 2.10(b) and
any reduction of the Tranche A-2 Commitments of the Tranche A-2 Lenders shall be made pro rata according to the respective Tranche A-2 Percentages of the Tranche A-2 Lenders.




          (c) Each Tranche B Borrowing by the Borrower from the Tranche B Lenders hereunder, each
payment by the Borrower on account of the commitment fee payable pursuant to Section 2.10(c) and
any reduction of the Tranche B Commitments of the Tranche B Lenders shall be made pro rata
according to the respective Tranche B Percentages of the Tranche B Lenders.




          (d) Each payment or prepayment (including prepayments made pursuant to Section 3.01(b) of the
Common Agreement, but excluding optional prepayments made pursuant to Section 2.4) made by the
Borrower on account of principal of the Working Capital Loans (or any portion thereof) shall be
made pro rata according to the respective aggregate outstanding principal amounts of the
Working Capital Loans then held by each Working Capital Facility Lender. Each optional prepayment
made by the Borrower, pursuant to Section 2.4, on account of principal of the Working Capital
Loans (or any portion thereof) shall be made first to the Tranche A-2 Lenders and Tranche B
Lenders, pro rata according to the respective aggregate outstanding principal amounts of
Tranche A-2 Loans and Tranche B Loans (taken together) then held by each Tranche A-2 Lender and
Tranche B Lender and second to the Tranche A-1 Lenders, pro rata according to the
respective aggregate outstanding principal amounts of Tranche A-1 Loans then held by each Tranche
A-1 Lender. Each payment (including each prepayment) by the Borrower on account of commitment fees
payable pursuant to Sections 2.10(a), (b) or (c) and interest on the Working Capital Loans (or any
portion thereof) shall be made pro rata according to the respective aggregate outstanding
amounts of interest and such commitment fees then due and payable to each Working Capital Facility
Lender.










14









 








          (e) Each prepayment by the Borrower pursuant to either Section 2.4 of this Agreement or
Section 3.01(b) of the Common Agreement shall be applied to the Working Capital Loans in
chronological order of when each such Working Capital Loan was made, with the Working Capital Loan
that has been outstanding for the longest period of time being prepaid first.




          (f) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim
and shall be made prior to 11:00 a.m., New York City time, on the due date thereof to the Working
Capital Facility Administrative Agent, for the account of the Working Capital Facility Lenders, at
the Funding Office, in Dollars and in immediately available funds. The Working Capital Facility
Administrative Agent shall distribute such payments to each Working Capital Facility Lender
promptly upon receipt in like funds as received, net of any amounts owing by such Working Capital
Facility Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due
and payable on a day other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend such payment into
another calendar month, in which event such payment shall be made on the immediately preceding
Business Day. In the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate during such
extension.




          (g) Each reduction of the of the Tranche A-1 Commitments shall be made pro rata
according to the respective Tranche A-1 Percentages of each Tranche A-1 Lender; each reduction of
the Tranche A-2 Commitments or Tranche B Commitments shall be made pro rata between the
Tranche A-2 Commitments and Tranche B Commitments and, within each such tranche, pro rata
according to the respective Tranche A-2 Percentages and Tranche B Percentages, as the case may be,
of each Tranche A-2 Lender and each Tranche B Lender.




          (h) Unless the Working Capital Facility Administrative Agent shall have been notified in
writing by any Working Capital Facility Lender prior to a Working Capital Facility Borrowing that
such Working Capital Facility Lender will not make the amount that would constitute its share of
such Working Capital Facility Borrowing available to the Working Capital Facility Administrative
Agent, the Working Capital Facility Administrative Agent may assume that such Working Capital
Facility Lender is making such amount available to the Working Capital Facility Administrative
Agent, and the Working Capital Facility Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such amount is not made
available to the Working Capital Facility Administrative Agent by the required time on the
Borrowing Date therefor, such Working Capital Facility Lender shall pay to the Working Capital
Facility Administrative Agent, on demand, such amount with interest thereon, at a rate equal to
the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Working
Capital Facility Administrative Agent in accordance with banking industry rules on interbank
compensation, for the period until such Working Capital Facility Lender makes such amount
immediately available to the Working Capital Facility Administrative Agent. A certificate of the
Working Capital Facility Administrative Agent submitted to any Working Capital Facility Lender
with respect to any amounts owing under this




15









 




paragraph shall be conclusive in the absence of manifest error. If such Working Capital Facility
Lender’s share of such Working Capital Facility Borrowing is not made available to the Working
Capital Facility Administrative Agent by such Working Capital Facility Lender within three
Business Days after such Borrowing Date, the Working Capital Facility Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per annum applicable to
ABR Loans, on demand, from the Borrower.




          (i) Unless the Working Capital Facility Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder
that the Borrower will not make such payment to the Working Capital Facility Administrative Agent,
the Working Capital Facility Administrative Agent may assume that the Borrower is making such
payment, and the Working Capital Facility Administrative Agent may, but shall not be required to,
in reliance upon such assumption, make available to the Working Capital Facility Lenders their
respective pro rata shares of a corresponding amount. If such payment is not made to the
Working Capital Facility Administrative Agent by the Borrower within three Business Days after
such due date, the Working Capital Facility Administrative Agent shall be entitled to recover, on
demand, from each Working Capital Facility Lender to which any amount which was made available
pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal
to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the
rights of the Working Capital Facility Administrative Agent or any Working Capital Facility Lender
against the Borrower.




     Section 2.10 Fees.



          (a) The Borrower agrees to pay to the Working Capital Facility Administrative Agent for the
account of each Tranche A-1 Lender a commitment fee on the average daily unused amount of such
Tranche A-1 Lender’s Tranche A-1 Commitment, from the Signing Date, in the case of each Tranche
A-1 Lender initially a party hereto, and from the effective date specified in the Assignment
pursuant to which an Assignee becomes a Tranche A- 1 Lender, until the Loan Maturity Date, at the
rate of 0.25% per annum, payable monthly in arrears on each Monthly Payment Date, commencing on
the first such date to occur on or following the earlier of (i) the date that is thirty (30) days
following the Signing Date or (ii) the date of the initial Working Capital Facility Borrowing.




          (b) The Borrower agrees to pay to the Working Capital Facility Administrative Agent for the
account of each Tranche A-2 Lender a commitment fee on the average daily unused amount of such
Tranche A-2 Lender’s Tranche A-2 Commitment, from the Amendment Effective Date, in the case of
each Tranche A-2 Lender party hereto on such date, and from the effective date specified in the
Assignment pursuant to which an Assignee becomes a Tranche A-2 Lender, until the Loan Maturity
Date, at the rate of 1.20% per annum, payable monthly in arrears on each Monthly Payment Date,
commencing on the first such date to occur on or following the earlier of (i) the date that is
thirty (30) days following the Amendment Effective Date or (ii) the date of the initial Working
Capital Facility Borrowing made on or following the Amendment Effective Date.




          (c) The Borrower agrees to pay to the Working Capital Facility Administrative Agent for the
account of each Tranche B Lender a commitment fee on the




16









 




average daily unused amount of such Tranche B Lender’s Tranche B Commitment from the Amendment
Effective Date, in the case of each Tranche B Lender party hereto on the Amendment Effective Date,
and from the effective date specified in the Assignment pursuant to which an Assignee becomes a
Tranche B Lender, until the Loan Maturity Date, at the rate of 1.50% per annum, payable monthly in
arrears on each Monthly Payment Date, commencing on the first such date to occur on or following
the earlier of (i) the date that is thirty (30) days following the Amendment Effective Date or
(ii) the date of the initial Working Capital Facility Borrowing made on or following the Amendment
Effective Date.




          (d) The Borrower further agrees to pay the fees set forth in the WestLB Fee Letter, the
Expansion Structuring Fee Letter and the Expansion Upfront Fee Letter in accordance with the terms
thereof.




          (e) The Borrower further agrees to pay upon demand any transfer fee payable in connection
with any Disbursement LC.




     Section 2.11 Cancellation of Working Capital Facility Commitments. Subject to the
Working Capital Facility Administrative Agent’s approval thereof, the Borrower may, by notice to
the Working Capital Facility Administrative Agent, irrevocably request that all or any portion of
the unutilized Working Capital Facility Commitments be cancelled effective as of any Interest
Payment Date.



ARTICLE 3

REPRESENTATIONS AND WARRANTIES




     Section 3.1 Representations and Warranties of the Borrower. To induce the Working
Capital Facility Administrative Agent and the Working Capital Facility Lenders to enter into this
Agreement and to make the Working Capital Loans, the Borrower hereby confirms each of the
representations and warranties set forth in Section 5.01 of the Common Agreement, which
representations and warranties shall apply, mutatis mutandis, to this Agreement as if they had
been fully set out in this Agreement and made as of the dates specified in the Common Agreement
(unless and to the extent waived or amended from time to time in accordance with the terms of the
Common Agreement) and as of the Amendment Effective Date. All of these representations and
warranties shall survive the execution and delivery of this Agreement, the Initial Closing Date,
the Amendment Effective Date and all Working Capital Facility Borrowings and Working Capital
Facility Commitments made hereunder.



ARTICLE 4

CONDITIONS PRECEDENT




     Section 4.1 Conditions Precedent to the Initial Closing Date and the Initial Working
Capital Facility Borrowing. The Initial Closing Date and the initial Working Capital Facility
Borrowing are subject to satisfaction, in a manner satisfactory to each Lender, of each of the
conditions set forth in Sections 4.01, 4.02 and 4.05 of the Common Agreement, which conditions
shall apply, mutatis mutandis, to this Agreement as if they had been fully set out herein
(provided, that, a waiver of any condition under Section 4.01, 4.02 or 4.05 of the Common



17









 




Agreement shall be deemed a waiver of such condition hereunder) and, in a manner satisfactory to
each Working Capital Facility Lender, of each of the following conditions:




          (a) The Working Capital Facility Administrative Agent shall have received Disbursement LCs in
an amount not less than U.S.$30,000,000, each issued or confirmed in favor of the Working Capital
Facility Administrative Agent by the Disbursement LC Providers;




          (b) With respect to each Disbursement LC Provider, evidence has been provided to the Working
Capital Facility Administrative Agent that each such Disbursement LC Provider is an Acceptable LC
Provider;




          (c) Each of the conditions set forth in Section 4.2 of this Agreement shall be
satisfied.




     Section 4.2 Conditions Precedent to Each Working Capital Facility Borrowing. The
obligation of each Working Capital Facility Lender to make any Working Capital Loan is subject to
satisfaction, in a manner satisfactory to (x) in the case of the initial Working Capital Facility
Borrowing, each Lender and (y) in the case of any subsequent Working Capital Facility Borrowing,
the Working Capital Facility Administrative Agent, of each of the conditions set forth in Sections
4.02 and 4.05 of the Common Agreement, which conditions shall apply, mutatis mutandis, to this
Agreement as if they had been fully set out herein (provided, that, a waiver of any condition
under Section 4.02 or 4.05 of the Common Agreement shall be deemed a waiver of such condition
hereunder) and, in a manner satisfactory to each Working Capital Facility Lender with respect to
the initial Working Capital Facility Borrowing or in a manner satisfactory to the Working Capital
Facility Administrative Agent with respect to each subsequent Working Capital Facility Borrowing,
of each of the following conditions:



          (a) The proceeds of such Working Capital Facility Borrowing shall be used solely to pay
Project Costs (other than the repayment or prepayment of any Loans) to be incurred by the Borrower
within the thirty (30) day period immediately following the date of the applicable Working Capital
Facility Borrowing;




          (b) After giving effect to such Working Capital Facility Borrowing, (i) the aggregate amount
of all outstanding Tranche A Loans shall not exceed the product of (A) two (2) times (B) the sum
of the available undrawn amount of all Disbursement LCs and all cash deposits held in the Dollar
Disbursement Guarantee Account and (ii) the aggregate amount of all outstanding Loans shall not
exceed the Contract Price;




          (c) The Working Capital Facility Administrative Agent shall have received, no later than
three (3) Business Days prior to such Working Capital Facility Borrowing, a certificate of the
Independent Engineer certifying that (i) the Independent Engineer has reviewed the Working Capital
Facility Notice of Borrowing in respect of such Working Capital Facility Borrowing and does not
disagree in any material respect with any of the statements or calculations therein, (ii) all
Works for which payment will be made with the proceeds of such Working Capital Facility Borrowing
and all other Works for which payment was made with the proceeds of all prior Working Capital
Facility Notices of Borrowing have been performed properly in accordance with the Public Works
Contract and all other Project Documents and (iii)




18









 




construction of the Project is proceeding substantially in accordance with the Public Works
Contract and all other Project Documents and, in the Independent Engineer’s opinion, the Borrower
will achieve each Critical Event not later than the date set forth therefor in the Construction
Schedule (as such dates may be extended not more than two hundred seventy (270) days for
Permissible Critical Event Delays, Permissible Provisional Acceptance Delays or Permissible
Project Completion Delays, as applicable);




          (d) With respect only to the first Working Capital Facility Borrowing to occur on or after
the date that is sixty (60) days following the Initial Closing Date, the Construction Facility
Closing Date shall have occurred;




          (e) The construction of the Project shall be proceeding substantially in accordance with the
Public Works Contract and all other Project Documents and no Project Party shall be in breach of
any of its obligations under any Project Document; and




          (f) The Borrower (i) shall have achieved each Critical Event no later than the Critical Event
Date required therefor in the Public Works Contract or (ii) if the Borrower shall not have
achieved any Critical Event on or before the corresponding Critical Event Date, but shall have
achieved such Critical Event by the date that is not more than ninety (90) days following the
Critical Event Date required therefor in the Public Works Contract, the Borrower shall provide a
written certification (concurred in by the Independent Engineer) stating that (i) the Borrower
reasonably anticipates to achieve Provisional Acceptance of the First Unit not later than January
2, 2012 and the Project Completion Date not later than June 11, 2012 and (ii) the Borrower will
achieve each other Critical Event by the date that is not more than thirty (30) days following the
applicable Critical Event Date required therefor in the Public Works Contract.




     Section 4.3 Conditions Precedent to the Initial Disbursement of Tranche A-2 Loans and
Tranche B Loans. The obligation of each Tranche A-2 Lender to make the initial disbursement of
Tranche A-2 Loans and of each Tranche B Lender to make the initial disbursement of Tranche B Loans
is subject to satisfaction, in a manner satisfactory to each Working Capital Facility Lender, of
each of the following conditions:



          (a) The Working Capital Facility Administrative Agent shall have received Disbursement LCs in
an amount not less than fifty five million U.S. Dollars (U.S.$55,000,000), each issued or
confirmed in favor of the Working Capital Facility Administrative Agent by the Disbursement LC
Providers;




          (b) The Working Capital Facility Administrative Agent shall have received either (i) each of
the ICA Confirmation and the Nacional and Alcance Confirmation or (ii) one of the ICA Confirmation
and the Nacional and Alcance Confirmation, and the Borrower shall have used its best efforts to
procure and deliver that of the ICA Confirmation and the Nacional and Alcance Confirmation which
was not delivered to the Working Capital Facility Administrative Agent and shall have certified
the same in writing to the Working Capital Facility Administrative Agent.




          (c) CFE shall have recognized in one or more Monthly Reports (as confirmed by the Independent
Engineer) Additional Works with a nominal value of not less than ninety five




19









 




million U.S. Dollars (U.S.$95,000,000), and the Working Capital Facility Administrative Agent
shall have received true, correct and complete copies thereof;




          (d) Each party thereto shall have duly executed and delivered each Working Capital Facility
Expansion Document on and as of the Amendment Effective Date, and the Working Capital Facility
Administrative Agent shall have received true, correct and complete copies thereof;




          (e) The Working Capital Facility Administrative Agent shall have received (i) copies of the
organizational documents of the Borrower (including any shareholder agreement) certified to be
true and correct as of the date of the initial disbursement of Tranche A-2 Loans and Tranche B
Loans by a Representative of the Borrower and (ii) copies of all resolutions and other appropriate
authorizing actions taken by or on behalf of the Borrower authorizing and approving the execution,
delivery and performance of each Working Capital Facility Expansion Document, which resolutions or
authorizing actions have not been revoked, modified, amended or rescinded and are in full force
and effect as of the date of the initial disbursement of Tranche A-2 Loans and Tranche B Loans, as
certified by a Representative of the Borrower;




          (f) The Working Capital Facility Administrative Agent shall have received the following legal
opinions, each dated as of the date of the initial disbursement of Tranche A-2 Loans and Tranche B
Loans, and covering, among other things, the validity, binding effect and enforceability of this
Agreement:




               (i) legal opinion of White & Case LLP, special New York counsel to the Borrower;



               (ii) legal opinion of White & Case S.C., special Mexican counsel to the Borrower; and



               (iii) legal opinion of in-house counsel to the Borrower;



               (iv) legal opinion of Mayer Brown LLP, special New York counsel to the Working Capital
Facility Administrative Agent; and



               (v) legal opinion of Ritch Mueller, S.C., special Mexican counsel to the Working Capital
Facility Administrative Agent.



          (g) Each condition precedent set forth in Section 4.05 of the Common Agreement shall be
satisfied;




          (h) Each of the conditions set forth in Section 4.2 shall be satisfied; and




          (i) All Fees and other amounts required to be paid or deposited and all taxes, fees and other
costs payable in connection with the preparation, negotiation and delivery of this Agreement
(including reasonable fees and expenses of counsel and all other amounts payable under Section
10.04 of the Common Agreement) shall have been paid in full.








20









 








ARTICLE 5

AFFIRMATIVE COVENANTS




     Section 5.1 Affirmative Covenants of the Borrower. The Borrower hereby agrees to
comply with each of the covenants set forth in Section 6.01 of the Common Agreement and to
otherwise perform and observe all of the obligations undertaken by it in the Common Agreement, the
terms of which shall apply, mutatis mutandis, to this Agreement as if fully set forth herein
(unless and to the extent waived or amended from time to time in accordance with the terms of the
Common Agreement).



ARTICLE 6

NEGATIVE COVENANTS




     Section 6.1 Negative Covenants of the Borrower. The Borrower hereby agrees to comply
with each of the covenants set forth in Section 6.02 of the Common Agreement and to otherwise
perform and observe all of the obligations undertaken by it in the Common Agreement, the terms of
which shall apply, mutatis mutandis, to this Agreement as if fully set forth herein (unless and to
the extent waived or amended from time to time in accordance with the terms of the Common
Agreement).



ARTICLE 7

REPORTING OBLIGATIONS




     Section 7.1 Reporting Obligations of the Borrower. The Borrower hereby agrees to
comply with each of the obligations set forth in Section 6.03 of the Common Agreement and to
otherwise perform and observe all of the obligations undertaken by it in the Common Agreement, the
terms of which shall apply, mutatis mutandis, to this Agreement as if fully set forth herein
(unless and to the extent waived or amended from time to time in accordance with the terms of the
Common Agreement).



ARTICLE 8

EVENTS OF DEFAULT




     Section 8.1 Events of Default; Remedies.



          (a) An Event of Default shall occur hereunder upon the occurrence of any Event of Default set
forth in Section 7.01 of the Common Agreement, the terms of which shall apply, mutatis mutandis, to
this Agreement as if fully set forth herein.




          (b) If any Event of Default shall have occurred and be continuing, the Working Capital
Facility Administrative Agent, subject to the terms of the Common Agreement and the Intercreditor
Agreement, may take any of the actions specified in Section 7.02(a), 7.02(c), 7.03 or 7.04 of the
Common Agreement.




          (c) Subject to the Intercreditor Agreement, upon the acceleration of the Working Capital Loans
pursuant to Section 8.1(b) hereof or Section 7.02 of the Common Agreement, each of the Working
Capital Facility Lenders and the Working Capital Facility




21









 




Administrative Agent may take all such actions as it deems reasonable to recover any amounts due
hereunder.




          (d) All distributions to or for the benefit of the Working Capital Facility Lenders under or
in respect of any of the Financing Documents shall be received on account of the Working Capital
Facility Obligations owed to the Working Capital Facility Lenders without prejudice to any claim
by the Working Capital Facility Administrative Agent and the Working Capital Facility Lenders for
any deficiency after such distributions are distributed to the Working Capital Facility
Administrative Agent and the Working Capital Facility Lenders; the Working Capital Facility
Administrative Agent shall deliver notice to the Borrower of any such deficiency and the Borrower
shall remain liable for the same. After the occurrence and during the continuance of an Event of
Default, all such distributions shall be applied to such part of the Working Capital Facility
Obligations as is determined by the Working Capital Facility Lenders in their sole discretion
(subject, as between the Working Capital Lenders, to the terms of the Intercreditor Agreement) or,
in the event the Working Capital Facility Lenders fail to advise the Working Capital Facility
Administrative Agent of their determination, by the Working Capital Facility Administrative Agent.
After the occurrence and during the continuance of an Event of Default, the Working Capital
Facility Lenders may at any time change any application of any such distributions or other moneys
received by the Working Capital Facility Administrative Agent and may reapply the same to any part
of the Working Capital Facility Obligations as the Working Capital Facility Lenders may from time
to time in their absolute discretion determine (subject, as between the Working Capital Lenders,
to the terms of the Intercreditor Agreement).




ARTICLE 9

THE WORKING CAPITAL FACILITY ADMINISTRATIVE AGENT




     Section 9.1 Appointment. Each Working Capital Facility Lender hereby irrevocably
designates and appoints the Working Capital Facility Administrative Agent as the agent of such
Working Capital Facility Lender under this Agreement and the other Financing Documents, and each
such Working Capital Facility Lender irrevocably authorizes the Working Capital Facility
Administrative Agent, in such capacity, to take such action on its behalf under the provisions of
this Agreement and the other Financing Documents and to exercise such powers and perform such
duties as are expressly delegated to the Working Capital Facility Administrative Agent by the
terms of this Agreement and the other Financing Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Working Capital Facility Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary relationship with any
Working Capital Facility Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Financing Document or
otherwise exist against the Working Capital Facility Administrative Agent.



     Section 9.2 Delegation of Duties. The Working Capital Facility Administrative Agent
may execute any of its duties under this Agreement and the other Financing Documents by or through
agents or attorneys in fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Working Capital Facility Administrative Agent shall not



22









 




be responsible for the negligence or misconduct of any agents or attorneys in fact selected by it
with reasonable care.




     Section 9.3 Exculpatory Provisions. Neither the Working Capital Facility
Administrative Agent nor any of its officers, directors, employees, agents, advisors, attorneys in
fact or affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Financing Document (except
to the extent that any of the foregoing are found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from its or such Person’s own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Working Capital Facility
Lenders for any recitals, statements, representations or warranties made by any Project Party or
any officer thereof contained in this Agreement or any other Financing Document or in any
certificate, report, statement or other document referred to or provided for in, or received by
the Working Capital Facility Administrative Agent under or in connection with, this Agreement or
any other Financing Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Financing Document or for any failure
of any Project Party a party thereto to perform its obligations hereunder or thereunder. The
Working Capital Facility Administrative Agent shall not be under any obligation to any Working
Capital Facility Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Financing Document, or
to inspect the properties, books or records of any Project Party.



     Section 9.4 Reliance by Working Capital Facility Administrative Agent. The Working
Capital Facility Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy or email message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Working Capital Facility Administrative Agent. The
Working Capital Facility Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Financing Document unless it shall first receive
such advice or concurrence of the Working Capital Facility Majority Lenders (or, if so specified
by this Agreement, all Working Capital Facility Lenders) as it deems appropriate or it shall first
be indemnified to its satisfaction by the Working Capital Facility Lenders against any and all
liability and expense that may be incurred by it by reason of taking or continuing to take any
such action. The Working Capital Facility Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the other Financing
Documents in accordance with a request of the Working Capital Facility Majority Lenders (or, if so
specified by this Agreement, all Working Capital Facility Lenders), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the Working Capital
Facility Lenders and all future holders of the Working Capital Loans.



     Section 9.5 Notice of Default. The Working Capital Facility Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Working Capital Facility Administrative Agent has received notice from a
Working Capital Facility Lender or the Borrower referring to this Agreement, describing such



23









 




Default or Event of Default and stating that such notice is a “notice of default”. In the event
that the Working Capital Facility Administrative Agent receives such a notice, the Working Capital
Facility Administrative Agent shall give notice thereof to the Working Capital Facility Lenders.
Subject to the Intercreditor Agreement, the Working Capital Facility Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be reasonably directed
by the Working Capital Facility Majority Lenders (or, if so specified by this Agreement, all
Working Capital Facility Lenders); provided that unless and until the Working Capital
Facility Administrative Agent shall have received such directions, the Working Capital Facility
Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Working Capital Facility Lenders (subject to the Intercreditor Agreement).




     Section 9.6 Non-Reliance on Working Capital Facility Administrative Agent and Other
Working Capital Facility Lenders. Each Working Capital Facility Lender expressly acknowledges
that neither the Working Capital Facility Administrative Agent nor any of its officers, directors,
employees, agents, advisors, attorneys in fact or affiliates have made any representations or
warranties to it and that no act by the Working Capital Facility Administrative Agent hereafter
taken, including any review of the affairs of a Project Party or any affiliate of a Project Party,
shall be deemed to constitute any representation or warranty by the Working Capital Facility
Administrative Agent to any Working Capital Facility Lender. Each Working Capital Facility Lender
represents to the Working Capital Facility Administrative Agent that it has, independently and
without reliance upon the Working Capital Facility Administrative Agent or any other Working
Capital Facility Lender, and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Project Parties and their affiliates and made its own
decision to make its Working Capital Loans hereunder and enter into this Agreement. Each Working
Capital Facility Lender also represents that it will, independently and without reliance upon the
Working Capital Facility Administrative Agent or any other Working Capital Facility Lender, and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Financing Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other condition and
creditworthiness of the Project Parties and their affiliates. Except for notices, reports and
other documents expressly required to be furnished to the Working Capital Facility Lenders by the
Working Capital Facility Administrative Agent hereunder, the Working Capital Facility
Administrative Agent shall not have any duty or responsibility to provide any Working Capital
Facility Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of any Project Party
or any affiliate of a Project Party that may come into the possession of the Working Capital
Facility Administrative Agent or any of its officers, directors, employees, agents, attorneys in
fact or affiliates.



     Section 9.7 Indemnification. The Working Capital Facility Lenders agree to indemnify
the Working Capital Facility Administrative Agent and its officers, directors, employees,
affiliates, agents, advisors and controlling persons (each, an “Agent Indemnitee”) (to the
extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do
so), ratably according to their respective Working Capital Facility Percentages in effect on the



24









 




date on which indemnification is sought under this Section (or, if indemnification is sought after
the date upon which the Working Capital Facility Commitments shall have terminated and the Working
Capital Loans shall have been paid in full, ratably in accordance with such Working Capital
Facility Percentages immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (whether before or after the payment of
the Working Capital Loans) be imposed on, incurred by or asserted against such Agent Indemnitee in
any way relating to or arising out of, the Working Capital Facility Commitments, this Agreement,
any of the other Financing Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken or omitted by such
Agent Indemnitee under or in connection with any of the foregoing; provided that no
Working Capital Facility Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent Indemnitee’s gross negligence or willful misconduct.
The agreements in this Section shall survive the payment of the Working Capital Loans and all
other amounts payable hereunder.




     Section 9.8 Agent in Its Individual Capacity. The Working Capital Facility
Administrative Agent and its affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Project Party as though the Working Capital Facility
Administrative Agent did not serve in such capacity. With respect to its Working Capital Loans
made or renewed by it, the Working Capital Facility Administrative Agent shall have the same
rights and powers under this Agreement and the other Financing Documents as any Working Capital
Facility Lender and may exercise the same as though it were not the Working Capital Facility
Administrative Agent, and the terms “Working Capital Facility Lender” and “Working
Capital Facility Lenders” shall include the Working Capital Facility Administrative Agent in
its individual capacity.



     Section 9.9 Successor Working Capital Facility Administrative Agent. The Working
Capital Facility Administrative Agent may resign as Working Capital Facility Administrative Agent
upon 90 days’ notice to the Working Capital Facility Lenders and the Borrower. If the Working
Capital Facility Administrative Agent shall resign as Working Capital Facility Administrative
Agent under this Agreement and the other Financing Documents, then the Working Capital Facility
Required Lenders shall appoint from among the Working Capital Facility Lenders a successor agent
for the Working Capital Facility Lenders, which successor agent shall (unless a Default shall have
occurred and be continuing) be subject to approval by the Borrower (which approval shall not be
unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights,
powers and duties of the Working Capital Facility Administrative Agent, and the term “Working
Capital Facility Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Working Capital Facility Administrative Agent’s rights,
powers and duties as Working Capital Facility Administrative Agent shall be terminated, without
any other or further act or deed on the part of such former Working Capital Facility
Administrative Agent or any of the parties to this Agreement or any holders of the Working Capital
Loans. If no successor agent has accepted appointment as Working Capital Facility Administrative
Agent by the date that is 90 days following a retiring Working Capital Facility Administrative
Agent’s notice of resignation, the



25









 




retiring Working Capital Facility Administrative Agent’s resignation shall nevertheless thereupon
become effective, and the Working Capital Facility Lenders shall assume and perform all of the
duties of the Working Capital Facility Administrative Agent hereunder until such time, if any, as
the Working Capital Facility Required Lenders appoint a successor agent as provided for above.
Notwithstanding anything herein to the contrary, if no successor agent has accepted appointment as
Working Capital Facility Administrative Agent by the date that is sixty (60) days following the
effective date of the retiring Working Capital Facility Administrative Agent’s resignation, the
Intercreditor Agent may appoint a successor Working Capital Facility Administrative Agent from
among the Working Capital Facility Lenders (without obtaining the approval of any such Working
Capital Facility Lenders). After any retiring Working Capital Facility Administrative Agent’s
resignation as Working Capital Facility Administrative Agent, the provisions of this Section 9 and
of Section 10.04 of the Common Agreement shall continue to inure to its benefit.




ARTICLE 10

MISCELLANEOUS




     Section 10.1 Incorporation of Miscellaneous Provisions by Reference. Sections 10.03,
10.08, 10.10, 10.13, 10.14 and 10.15 of the Common Agreement are hereby incorporated by reference
herein as if fully set forth herein.



     Section 10.2 Amendments and Waivers. No amendment, supplement, modification, waiver,
cancellation, consent or approval with regard to any provision of this Agreement shall in any
event be effective unless the same shall be in writing and signed or approved by the Borrower, the
Working Capital Facility Administrative Agent and the Working Capital Facility Majority Lenders
and then such amendment, supplement, modification, cancellation, consent or approval shall be
effective only in the specific instance and for the specific purpose for which given; provided
that:



          (a) no amendment, supplement, modification, waiver, cancellation, consent or approval shall,
unless in writing and signed by all of the Working Capital Facility Lenders, do any of the
following: (i) take any action which is defined as a Fundamental Decision in the Common Agreement,
(ii) take any action that changes the Working Capital Facility Commitment of any Working Capital
Facility Lender or the obligation of any Working Capital Facility Lender to make a Working Capital
Loan, (iii) take any action which requires the consent of each Working Capital Facility Lender
pursuant to the terms of any Transaction Document or (iv) amend or modify this Section 10.2;




          (b) any amendment, supplement, modification, determination, waiver, cancellation, consent or
approval which is or effects a Working Capital Facility Administrative Decision may be effected by
the Working Capital Facility Administrative Agent;




          (c) no amendment, supplement, modification, waiver, cancellation, consent or approval shall,
unless in writing and signed by the Working Capital Facility Administrative Agent in addition to
the Working Capital Facility Lenders required hereinabove to take such action, affect the rights
or duties of the Working Capital Facility Administrative Agent under this Agreement; and




26









 





          (d) no amendment, supplement, modification, waiver, cancellation, consent or approval shall,
unless in writing and signed by the Working Capital Facility Required Lenders, do any of the
following: (i) waive any Payment Event of Default or Bankruptcy Event of Default with respect to
the Working Capital Facility Credit Agreement or (ii) amend or modify Section 8.1 or Section 10.5.



Any amendment, supplement, modification, determination, waiver, cancellation, consent or approval
so made shall be binding on all of the Working Capital Facility Lenders. The terms of this Section
10.2 shall be subject to the terms of the Intercreditor Agreement and Section 10.01 of the Common
Agreement.




     Section 10.3 Notices. All notices and other communications provided for hereunder
shall be given or made in accordance with the provisions of Section 10.02 of the Common Agreement.



     Section 10.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Financing Documents and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the execution and
delivery of this Agreement and the making of the Working Capital Loans and other extensions of
credit hereunder.



     Section 10.5 Successors and Assigns; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that (i) the Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder without the prior written
consent of each Working Capital Facility Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Working Capital Facility Lender
may assign or otherwise transfer its rights or obligations hereunder except in accordance with
this Section.



          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Working Capital
Facility Lender may assign to one or more assignees (each, an “Assignee”) all or a portion
of its rights and obligations under this Agreement (including all or a portion of its Working
Capital Facility Commitments and the Working Capital Loans at the time owing to it) with the prior
written consent of:




                    (A) the Borrower (such consent not to be unreasonably withheld), provided that no
consent of the Borrower shall be required for an assignment to a Working Capital Facility Lender,
an affiliate of a Working Capital Facility Lender, an Approved Fund (as defined below) or, if an
Event of Default has occurred and is continuing, any other Person; and



                    (B) the Working Capital Facility Administrative Agent, provided that no consent of
the Working Capital Facility Administrative Agent shall be required for an assignment of all or
any portion of a Working Capital Loan to a Working Capital Facility Lender, an affiliate of a
Working Capital Facility Lender or an Approved Fund.



27









 





               (ii) Assignments shall be subject to the following additional
conditions:



                    (A) except in the case of an assignment to a Working Capital Facility Lender, an affiliate of
a Working Capital Facility Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Working Capital Facility Lender’s Working Capital Facility Commitments or
Working Capital Loans, the amount of the Working Capital Facility Commitments or Working Capital
Loans of the assigning Working Capital Facility Lender subject to each such assignment (determined
as of the date the Assignment with respect to such assignment is delivered to the Working Capital
Facility Administrative Agent) shall not be less than U.S.$5,000,000 unless each of the Borrower
and the Working Capital Facility Administrative Agent otherwise consent, provided that (1)
no such consent of the Borrower shall be required if an Event of Default has occurred and is
continuing and (2) such amounts shall be aggregated in respect of each Working Capital Facility
Lender and its affiliates or Approved Funds, if any;



                    (B) each such assignment shall be of a constant, and not a varying, percentage of all of the
assigning Working Capital Facility Lender’s rights (including with respect to its Working Capital
Loans) and obligations (including with respect to its Working Capital Facility Commitments);



                    (C) (1) the parties to each assignment shall execute and deliver to the Working Capital
Facility Administrative Agent an Assignment, together with a processing and recordation fee of
U.S.$3,500 and (2) the assigning Working Capital Facility Lender shall have paid in full any
amounts owing by it to the Working Capital Facility Administrative Agent; and



                    (D) the Assignee, if it shall not be a Working Capital Facility Lender, shall deliver to the
Working Capital Facility Administrative Agent an administrative questionnaire in which the
Assignee designates one or more credit contacts to whom all syndicate-level information (which may
contain material non-public information about the Borrower and its Affiliates and their related
parties or their respective securities) will be made available and who may receive such
information in accordance with the assignee’s compliance procedures and applicable laws, including
Federal and state securities laws.



     For the purposes of this Section 10.5, “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is administered or
managed by (a) a Working Capital Facility Lender, (b) an affiliate of a Working Capital Facility
Lender or (c) an entity or an affiliate of an entity that administers or manages a Working Capital
Facility Lender.



               (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from
and after the effective date specified in each Assignment the Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment, have the rights and
obligations of a Working Capital Facility Lender under this Agreement, and the assigning Working
Capital Facility Lender thereunder shall, to the extent of the interest



28









 




assigned by such Assignment, be released from its obligations under this Agreement (and, in the
case of an Assignment covering all of the assigning Working Capital Facility Lender’s rights and
obligations under this Agreement, such Working Capital Facility Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 3.02, 3.03, 3.04 and 10.04 of
the Common Agreement). Any assignment or transfer by a Working Capital Facility Lender of rights
or obligations under this Agreement that does not comply with this Section 10.5 shall be treated
for purposes of this Agreement as a sale by such Working Capital Facility Lender of a
participation in such rights and obligations in accordance with paragraph (c) of this Section.




               (iv) The Working Capital Facility Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment delivered to it
and a register for the recordation of the names and addresses of the Working Capital Facility
Lenders, and the Working Capital Facility Commitments of, and principal amount of the Working
Capital Loans owing to, each Working Capital Facility Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive, and the
Borrower, the Working Capital Facility Administrative Agent and the Working Capital Facility
Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Working Capital Facility Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.



               (v) Upon its receipt of a duly completed Assignment executed by an assigning Working Capital
Facility Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the
Assignee shall already be a Working Capital Facility Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Working Capital Facility Administrative
Agent shall accept such Assignment and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.



          (c) (i) Any Working Capital Facility Lender may, without the consent of the Borrower or the
Working Capital Facility Administrative Agent, sell participations to one or more banks or other
entities (a “Participant”) in all or a portion of such Working Capital Facility Lender’s
rights and obligations under this Agreement (including all or a portion of its Working Capital
Facility Commitments and the Working Capital Loans owing to it); provided that (A) such
Working Capital Facility Lender’s obligations under this Agreement shall remain unchanged, (B)
such Working Capital Facility Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (C) the Borrower, the Working Capital Facility
Administrative Agent and the other Working Capital Facility Lenders shall continue to deal solely
and directly with such Working Capital Facility Lender in connection with such Working Capital
Facility Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a
Working Capital Facility Lender sells such a participation shall provide that such Working Capital
Facility Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement. Subject to paragraph (c)(ii)
of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.02, 3.03 and 3.04 of the Common Agreement to the same extent as if it were a Working
Capital Facility Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be




29









 




entitled to the benefits of Section 10.6(b) as though it were a Working Capital Facility Lender,
provided such Participant shall be subject to Section 10.6(a) as though it were a Working Capital
Facility Lender.




               (ii) A Participant shall not be entitled to receive any greater payment under the Common
Agreement than the applicable Working Capital Facility Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent. Any Participant that is a
non-U.S. Lender shall not be entitled to the benefits of Section 3.02 of the Common Agreement
unless such Participant complies with Section 3.02(e) of the Common Agreement.



          (d) Any Working Capital Facility Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Working
Capital Facility Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest shall release
a Working Capital Facility Lender from any of its obligations hereunder or substitute any such
pledgee or Assignee for such Working Capital Facility Lender as a party hereto.




          (e) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Working
Capital Loans it may have funded hereunder to its designating Working Capital Facility Lender
without the consent of the Borrower or the Working Capital Facility Administrative Agent and
without regard to the limitations set forth in Section 10.5(b). Each of the Borrower, each Working
Capital Facility Lender and the Working Capital Facility Administrative Agent hereby confirms that
it will not institute against a Conduit Lender or join any other Person in instituting against a
Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any state bankruptcy or similar law, for one year and one day after the payment in full of
the latest maturing commercial paper note issued by such Conduit Lender; provided,
however, that each Working Capital Facility Lender designating any Conduit Lender hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense
arising out of its inability to institute such a proceeding against such Conduit Lender during
such period of forbearance.




     Section 10.6 Adjustments; Set off. (a) Except to the extent that this Agreement, any
other Financing Document or a court order expressly provides for payments to be allocated to a
particular Working Capital Facility Lender, if any Working Capital Facility Lender (a
“Benefitted Lender”) shall receive any payment of all or part of the Working Capital
Facility Obligations owing to it (other than in connection with an assignment made pursuant to
Section 10.5), or receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set off, or otherwise), in a greater proportion than any such payment to or collateral received
by any other Working Capital Facility Lender, if any, in respect of the Working Capital Facility
Obligations owing to such other Working Capital Facility Lender, such Benefitted Lender shall
purchase for cash from the other Working Capital Facility Lenders a participating interest in such
portion of the Working Capital Facility Obligations owing to each such other Working Capital
Facility Lender, or shall provide such other Working Capital Facility Lenders with the benefits of
any such collateral, as shall be necessary to cause such Benefitted Lender to share the excess



30









 




payment or benefits of such collateral ratably with each of the Working Capital Facility Lenders;
provided, however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but without interest.




          (b) In addition to any rights and remedies of the Working Capital Facility Lenders provided
by law, each Working Capital Facility Lender shall have the right, without notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted by applicable law,
upon any Working Capital Facility Obligations becoming due and payable by the Borrower (whether at
the stated maturity, by acceleration or otherwise), to apply to the payment of such Obligations,
by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Working Capital Facility Lender, any affiliate thereof or any of their respective
branches or agencies to or for the credit or the account of the Borrower. Each Working Capital
Facility Lender agrees promptly to notify the Borrower and the Working Capital Facility
Administrative Agent after any such application made by such Working Capital Facility Lender,
provided that the failure to give such notice shall not affect the validity of such
application.




     Section 10.7 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. Delivery of an executed
signature page of this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Working Capital Facility Administrative Agent.



     Section 10.8 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     Section 10.9 Integration. This Agreement and the other Financing Documents represent
the entire agreement of the Borrower, the Working Capital Facility Administrative Agent and the
Working Capital Facility Lenders with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the Working Capital Facility
Administrative Agent or any Working Capital Facility Lender relative to the subject matter hereof
not expressly set forth or referred to herein or in the other Financing Documents.



     Section 10.10 GOVERNING LAW, SUBMISSION TO JURISDICTION, ETC.



          (a) THIS AGREEMENT AND EACH OF THE OTHER FINANCING DOCUMENTS (UNLESS SUCH DOCUMENT EXPRESSLY
STATES OTHERWISE




31









 




THEREIN) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.




          (b) Each of the parties hereto hereby (i) expressly and irrevocably submits and consents to
the jurisdiction of any State or Federal court sitting in the Borough of Manhattan, and any
appellate court having jurisdiction over appeals from any of such courts, in any action to resolve
any controversy or claim arising out of this Agreement or any other Financing Document, (ii)
agrees that all claims in such action may be decided in any such court, (iii) waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum and (iv) consents to
the service of process by registered or certified mail (or any substantially similar form of
mail), postage prepaid and return receipt requested, or by personal service within or without the
State of New York, at the address for notices referred to in Section 10.3. A final judgment in any
such action shall be conclusive and may be enforced in other jurisdictions. Furthermore, each
party hereby submits to the competent courts of its corporate domicile in any action or proceeding
against it in connection with this Agreement or any other Financing Document. Nothing herein shall
affect the right of any party to bring legal action or proceedings in any other competent
jurisdiction.




          (c) To the extent the Borrower may, in any action or proceeding arising out of or relating to
any of the Financing Documents brought in Mexico or elsewhere, be entitled under applicable Law to
require or claim that any Working Capital Facility Lender or the Working Capital Facility
Administrative Agent post security for costs or take similar action, the Borrower hereby
irrevocably waives and agrees not to claim the benefit of such entitlement.





32











 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
and delivered by their proper and duly authorized officers as of the day and year first above
written.



	 	 	 	 	 
	 	CONSTRUCTORA DE PROYECTOS

HIDROELECTRICOS, S.A. DE C.V., as the

Borrower

 	 
	 	By:  	/s/ Luis Horcasitas Manjarrez
 	 
	 	 	Name:  	Luis Horcasitas Manjarrez 	 
	 	 	Title:  	Legal Representative 	 
	 



Signature Page to Amended and Restated Working Capital Facility Credit Agreement









 









 








	 	 	 	 	 
	 	WESTLB AG, NEW YORK BRANCH, as

Working Capital Facility Administrative Agent

 	 
	 	By:  	/s/ Jared Brenner
 	 
	 	 	Name:  	Jared Brenner 	 
	 	 	Title:  	Executive Director 	 
	 
	 	 	 
	 	By:  	/s/ Cristhyan Rey
 	 
	 	 	Name:  	Cristhyan Rey 	 
	 	 	Title:  	Associate Director 	 
	 



Signature Page to Amended and Restated Working Capital Facility Credit Agreement






 









 








	 	 	 	 	 
	 	TRANCHE A LENDERS



WESTLB AG, NEW YORK BRANCH, as a

Tranche A-1 Lender and a Tranche A-2 Lender

 	 
	 	By:  	/s/ Jared Brenner
 	 
	 	 	Name:  	Jared Brenner 	 
	 	 	Title:  	Executive Director 	 
	 
	 	 	 
	 	By:  	/s/ Cristhyan Rey
 	 
	 	 	Name:  	Cristhyan Rey 	 
	 	 	Title:  	Associate Director 	 
	 



Signature Page to Amended and Restated Working Capital Facility Credit Agreement





 









 








	 	 	 	 	 
	 	TRANCHE B LENDERS



CITIBANK, N.A., NASSAU BAHAMAS BRANCH, as a Tranche B Lender

 	 
	 	By:  	/s/ Leslie Munroe
 	 
	 	 	Name:  	Leslie Munroe 	 
	 	 	Title:  	Attorney-In-Fact

Citibank N.A.

Nassau Bahamas Branch 	 
	 



Signature Page to Amended and Restated Working Capital Facility Credit Agreement





 









 








SCHEDULE 1 TO

AMENDED AND RESTATED

WORKING CAPITAL FACILITY CREDIT AGREEMENT




TRANCHE A-1 COMMITMENTS AND PERCENTAGES




	 	 	 	 	 
	 	 	TRANCHE A-1	 	TRANCHE A-1
	LENDER	 	COMMITMENT	 	PERCENTAGE
	WestLB AG, New York 

Branch
	 	U.S.$80,000,000
	 	100%






	 	 	 	 	 
	 	 	Total Tranche A-1	 	Total Tranche A-1
	 	 	Commitments	 	Percentages
	 
	 	U.S.$80,000,000
	 	100%






TRANCHE A-2 COMMITMENTS AND PERCENTAGES




	 	 	 	 	 
	 	 	TRANCHE A-2	 	TRANCHE A-2
	LENDER	 	COMMITMENT	 	PERCENTAGE
	WestLB AG, New York 

Branch
	 	U.S.$30,000,000
	 	100%






	 	 	 	 	 
	 	 	Total Tranche A-2	 	Total Tranche A-2
	 	 	Commitments	 	Percentages
	 
	 	U.S.$30,000,000
	 	100%






 









 






TRANCHE B COMMITMENTS AND PERCENTAGES




	 	 	 	 	 
	 	 	TRANCHE B	 	TRANCHE B
	LENDER	 	COMMITMENT	 	PERCENTAGE
	Citibank, N.A., Nassau 

Bahamas Branch
	 	U.S.$30,000,000
	 	100%






	 	 	 	 	 
	 	 	Total Tranche B	 	Total Tranche B
	 	 	Commitments	 	Percentages
	 
	 	U.S.$30,000,000
	 	100%







 











 





EXHIBIT A TO 
AMENDED AND RESTATED 
WORKING CAPITAL FACILITY CREDIT AGREEMENT




[FORM OF ASSIGNMENT]




     THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of [___],
20[___] (this “Agreement”) is made [between]1 [among]2 [ASSIGNOR] (the “Assignor”),
[ASSIGNEE] (the “Assignee”), [Constructora de Proyectos Hidroelectricos, S.A. de C.V. (the
“Borrower”)]3 and [WestLB AG, New York Branch, as working capital facility
administrative agent (together with its successors and assigns in such capacity, the “Working
Capital Facility Administrative Agent”) for the Working Capital Facility Lenders (as defined
below)]4. All capitalized terms used herein and not otherwise defined herein shall have
the meanings specified in the Working Capital Facility Credit Agreement referred to below.



PRELIMINARY STATEMENTS




          1. This Agreement relates to the Amended and Restated Working Capital Facility Credit
Agreement dated, as of October 13, 2010 (as the same may be amended, supplemented or otherwise
modified from time to time, the “Working Capital Facility Credit Agreement”), among the
Borrower, the Tranche A Lenders and Tranche B Lenders named on the signature pages thereto and
from time to time parties thereto (the “Working Capital Facility Lenders”), and the
Working Capital Facility Administrative Agent.




          2. [Tranche A-1 Loans] [Tranche A-2 Loans] [Tranche B Loans] in the principal amount of U.S.$[___] made to the Borrower by the Assignor under the Working
Capital Facility Credit Agreement are outstanding on the date hereof.




          3. The Assignor proposes to assign to the Assignee all of its rights under the
Working Capital Facility Credit Agreement in respect of U.S.$[___] of its [Tranche A-1
Commitment] [Tranche A-2 Commitment] [Tranche B Commitment] thereunder (the “Assigned
Commitment”), together with a portion of its outstanding [Tranche A-1 Loans] [Tranche A-2
Loans] [Tranche B Loans] in the principal amount equal to U.S.$[___] (the “Assigned
Loans”) and the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on the terms herein.5




          NOW THEREFORE, in consideration of the foregoing and the mutual agreements contained herein,
the parties hereto agree as follows:






 




			
	1	 	Insert if this agreement is between the Assignor and Assignee only.
	 
	2	 	Insert if this agreement is among the Assignor, the Assignee, the Working Capital
Facility Administrative Agent and, if applicable, the Borrower.
	 
	3	 	Insert if no Event of Default has occurred and is continuing and the Assignee is not
(A) a Working Capital Facility Lender, (B) an affiliate of a Working Capital Facility Lender or
(C) an Approved Fund.
	 
	4	 	Insert if the Assignee is not (A) a Working Capital Facility Lender, (B) an affiliate
of a Working Capital Facility Lender or (C) an Approved Fund.
	 
	5	 	Each assignment must be of a constant percentage of all of the assigning Working
Capital Facility Lender’s rights (including its Working Capital Loans) and obligations (including
its Working Capital Facility Commitments).




 









 










          SECTION 1. Assignment and Assumptions.




          (a) The Assignor hereby sells, assigns, transfers and conveys to the Assignee all of the
rights of the Assignor under the Working Capital Facility Credit Agreement in and to the Assigned
Commitment and the Assigned Loans, and the Assignee hereby accepts such assignment, transfer and
conveyance from the Assignor and assumes all of the obligations of the Assignor under the Working
Capital Facility Credit Agreement in and to the Assigned Commitment and the Assigned Loans. Upon
(i) the execution and delivery hereof by the Assignor, the Assignee and, to the extent required
pursuant to Section 3 below, the Borrower and the Working Capital Facility Administrative Agent
and (ii) the payment of the amounts specified in Section 2 hereof required to be paid on the date
hereof, (A) the Assignee shall, as of the date hereof, succeed to the rights and be obligated to
perform the obligations of a [Tranche A-1 Lender] [Tranche A-2 Lender] [Tranche B Lender] under
the Working Capital Facility Credit Agreement with a [Tranche A-1 Commitment] [Tranche A-2
Commitment] [Tranche B Commitment] in an amount equal to the Assigned Commitment, [Tranche A-1
Loans] [Tranche A-2 Loans] [Tranche B Loans] outstanding in an aggregate principal amount equal to
the Assigned Loans, and a [Tranche A-1 Percentage] [Tranche A-2 Percentage] [Tranche B
Percentage] equal to [___] percent ([___]%) and (B) the [Tranche A-1 Commitment] [Tranche A-
2 Commitment] [Tranche B Commitment], [Tranche A-1 Loans] [Tranche A-2 Loans] [Tranche B Loans]
and [Tranche A-1 Percentage] [Tranche A-2 Percentage] [Tranche B Percentage] of the Assignor
shall, as of the date hereof, be reduced correspondingly and the Assignor shall be released from
its obligations under the Working Capital Facility Credit Agreement to the extent such obligations
have been assumed by the Assignee. The assignment provided for herein shall be without recourse to
the Assignor.




          (b) Each party hereto agrees to comply with the terms and conditions set forth in Section
10.5 of the Working Capital Facility Credit Agreement that govern the making of an assignment
thereunder, and such terms and conditions are incorporated herein by reference as if fully set
forth herein.




          SECTION 2. Payments. As consideration for the sale and assignment contemplated in
Section 1 hereof, the Assignee shall pay to the Assignor on the date hereof in federal funds an
amount equal to [INSERT AMOUNT OF PAYMENT IN WORDS AND FIGURES]. It is understood that all Fees
with respect to the Assigned Commitment and the Assigned Loans accrued to the date hereof are for
the account of the Assignor. The commitment fees set forth in [Section 2.10(a)] [Section 2.10(b)]
[Section 2.10(c)] of the Working Capital Facility Credit Agreement, with respect to the Assigned
Commitment accrued from and including the date hereof, are for the account of the Assignee. Each
of the Assignor and the Assignee hereby agrees that if it receives any amount under the Working
Capital Facility Credit Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other party’s interest
therein and shall promptly pay the same to such other party.




          SECTION 3. Consent of the Borrower and the Working Capital Facility Administrative
Agent. This Agreement is conditioned upon the consent of the Borrower pursuant to Section 10.5
of the Working Capital Facility Credit Agreement if no Event of Default has occurred and is
continuing and the Assignee is not (A) a Working Capital Facility Lender,







 









 







(B) an affiliate of a Working Capital Facility Lender or (C) an Approved Fund. This Agreement is
conditioned upon the consent of the Working Capital Facility Administrative Agent pursuant to
Section 10.5 of the Working Capital Facility Credit Agreement if the Assignee is not (A) a Working
Capital Facility Lender, (B) an affiliate of a Working Capital Facility Lender or (C) an Approved
Fund. The execution of this Agreement by the Borrower and the Working Capital Facility
Administrative Agent, in each case as applicable, is evidence of such consent.




          SECTION 4. Non-Reliance on Assignor.




          (a) Neither the Assignor nor the Working Capital Facility Administrative Agent nor any other
Working Capital Facility Lender shall be responsible to the Assignee for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of any of the
Transaction Documents or for any representations, warranties, recitals or statements made therein
or in any written or oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents made or furnished or made available by the Assignor, the
Working Capital Facility Administrative Agent or any other Working Capital Facility Lender to the
Assignee or by or on behalf of the Borrower to the Assignor, the Working Capital Facility
Administrative Agent, such Working Capital Facility Lender or the Assignee in connection with the
Transaction Documents and the transactions contemplated thereby. Neither the Assignor nor the
Working Capital Facility Administrative Agent nor any other Working Capital Facility Lender shall
be required to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Transaction Documents or
as to the use of the proceeds of the Working Capital Facility Loans or as to the existence or
possible existence of any Default or Event of Default.




          (b) Neither the Assignor nor the Working Capital Facility Administrative Agent nor any other
Working Capital Facility Lender makes any representation or warranty in connection with, and shall
have no responsibility with respect to, the solvency, financial condition, or statements of the
Borrower or any other party to any Transaction Document, or the validity and enforceability of the
Working Capital Facility Obligations or the obligations of any party to any Transaction Document.
The Assignee acknowledges that it has, independently and without reliance on the Assignor, the
Working Capital Facility Administrative Agent or any other Working Capital Facility Lender, and
based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of the Borrower and each
other party to the Transaction Documents.




          SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




          SECTION 6. Amendment. No term or provision of this Agreement may be amended, changed,
waived, discharged or terminated orally, but only by an instrument in writing signed by the
Assignor and the Assignee, with the consent of the Working Capital Facility Administrative Agent,
the Working Capital Facility Majority Lenders and the Borrower.







 









 








          SECTION 7. Counterparts. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.




[SIGNATURE PAGE FOLLOWS ]







 









 








          IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by
their duly authorized officers as of the date first above written.




	 	 	 	 	 
	 	[ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[WESTLB AG, NEW YORK BRANCH,

as Working Capital Facility Administrative
Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]6  	 	 
	 
	 	[CONSTRUCTORA DE PROYECTOS

HIDROELECTRICOS, S.A. DE C.V.,

as the Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]7  	 	 
	 





 




			
	6	 	See footnote 4.
	 
	7	 	See footnote 3.




 









 










EXHIBIT B TO 
AMENDED AND RESTATED

WORKING CAPITAL FACILITY CREDIT AGREEMENT




[FORM OF INTEREST RATE NOTICE]




INTEREST RATE NOTICE



[____________, 20__]



WestLB AG, New York Branch



as Working Capital Facility Administrative Agent for the Working Capital Facility Lenders
party to the Working Capital Facility Credit Agreement referred to below


1211 Avenue of the
Americas
 New York, New York 10036



Attention: Jared Brenner




Ladies and Gentlemen:



Pursuant to the Amended and Restated Working Capital Facility Credit Agreement, dated as of
October 13, 2010 (as the same may be amended, supplemented or otherwise modified from time to
time, the “Working Capital Facility Credit Agreement”), among Constructora de Proyectos
Hidroeléctricos, S.A. de C.V. (the “Borrower”), certain Tranche A Lenders and Tranche B
Lenders party thereto (the “Working Capital Facility Lenders”), and WestLB AG, New York
Branch, as Working Capital Facility Administrative Agent for the Working Capital Facility Lenders
(all capitalized terms used herein and not otherwise defined herein having the meanings specified
in the Working Capital Facility Credit Agreement), the Borrower has delivered to the Working
Capital Facility Administrative Agent and the Independent Engineer its Working
Capital Facility Notice of Borrowing dated [_________, 20___]. With respect thereto, the
Borrower hereby gives notice of its desire to make the Working Capital Facility Borrowing on [_________ ___, 20___]8 in accordance with the terms set forth below:






(i) The Working Capital Facility Borrowing shall be comprised of [Tranche A-1 Loans]
[,] [Tranche A-2 Loans] [and] [Tranche B Loans] that are [Eurodollar Loans] [ABR
Loans].




(ii)[The initial Interest Period for such Working Capital Loans shall be one month.]9





 




			
	8	 	Insert date that is not sooner than third Business Day following the date of delivery of this Interest Rate Notice.
	 
	9	 	Use only for Eurodollar Loans.




 









 










	 	 	 	 	 
	 	CONSTRUCTORA DE PROYECTOS HIDROELECTRICOS, S.A. DE C.V.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 







EXHIBIT C TO
 AMENDED AND RESTATED
 WORKING CAPITAL FACILITY CREDIT AGREEMENT




[FORM OF WORKING CAPITAL FACILITY NOTICE OF BORROWING]




WORKING CAPITAL FACILITY NOTICE OF BORROWING



(Date)



WestLB AG, New York Branch

as Working Capital Facility Administrative Agent

1211 Avenue of the Americas

New York, New York 10036

Attention: Jared Brenner

Telephone: 1 (212) 852-6116

Telecopier: 1 (212)789-0075




MWH Americas, Inc.

as Independent Engineer (as defined in the Common Agreement, defined below)

[address]

Telephone: [_]

Telecopier: [_]

Attention: José Mayen




Ladies and Gentlemen:





     The undersigned,
Constructora de Proyectos Hidroeléctricos, S.A. de C.V. (the
“Borrower”), refers to:




	 	(i)	 	the Common Agreement, dated as of October 19, 2007 (as amended, supplemented or
otherwise modified from time to time, the “Common Agreement”) among the
Borrower; WestLB AG, New York Branch (“WestLB”), as intercreditor agent (the
“Intercreditor Agent”); each of the banks and other financial institutions
listed on the signature pages thereto as Construction Facility Lenders (the
“Construction Facility Lenders”); WestLB, as Construction Facility
Administrative Agent (the “Construction Facility Administrative Agent”); each of
the banks and other financial institutions listed on the signature pages thereto as
Working Capital Facility Lenders (the “Working Capital Facility Lenders”);
WestLB, as Working Capital Facility Administrative Agent (the “Working Capital
Facility Administrative Agent”); Citibank, N.A., as Offshore Collateral Agent (the
“Offshore Collateral Agent”); Banco Nacional de
México, Integrante del Grupo
Financiero Banamex, as Onshore Collateral Agent (the “Onshore Collateral
Agent”); and the other Lenders (as defined therein) and Lender Representatives (as
defined therein) from time to time party thereto; and




 









 






	 	(ii)	 	the Amended and Restated Working Capital Facility Credit Agreement, dated as of
October 13, 2010 (as amended, supplemented or otherwise modified from time to time, the
“Working Capital Facility Credit Agreement”), among the Borrower, the Working
Capital Facility Lenders, and the Working Capital Facility Administrative Agent.




and hereby gives you notice, irrevocably, pursuant to Section 2.01 of the Common Agreement (to the
extent applicable), Section 4.02(a) of the Common Agreement and Section 2.2(b) of the Working
Capital Facility Credit Agreement that the Borrower hereby requests:





	 	•	 	a Working Capital Facility Borrowing under the Working Capital Facility Credit
Agreement, in the aggregate amount of [U.S. $_______ in Tranche A-1 Loans] [,] [and]
[U.S.$ ___ in Tranche A-2 Loans] [and] [U.S. $_______ in Tranche B Loans] (the
“Requested Borrowing”), to be made on ______ ___, 20___ (the “Requested Borrowing
Date”).





     All capitalized terms used herein and not otherwise defined herein having the meanings
specified in the Working Capital Facility Credit Agreement.




	I.	 	WIRE TRANSFER INSTRUCTIONS





          The Borrower hereby requests transfer of the amount of the Requested Borrowing on the
Requested Borrowing Date in accordance with the wire transfer instructions set forth on Schedule I
hereto.





	II.	 	CALCULATION OF REQUESTED BORROWING





     The Borrower hereby
represents and warrants that:



     a. The aggregate principal amount of the Requested Borrowing does not exceed the aggregate
amount of Project Costs (other than the repayment or prepayment of any Loans) to be paid by the
Borrower within the thirty (30) day period immediately following the Requested Borrowing Date, as
set forth on Schedules I and II hereto in the aggregate.



     b. The available undrawn amount of all Disbursement LCs is U.S. $_______ [and
the amount of all cash deposits held in the Dollar Disbursement Guarantee Account is
U.S. $_______ ]* .



     c. After giving effect to the Requested Borrowing, the amount of all Tranche A Loans
outstanding and all accrued but unpaid Debt Service in respect of such Tranche A Loans does not
exceed “X”, calculated as follows:



X = (2 x C)




          where






 




			
	*	 	Include bracketed language only if there is a balance in the Dollar Disbursement
Guarantee Account.




 









 











     “C” is U.S. $_______, which is the sum of the available undrawn amount of all
Disbursement LCs [and all cash deposits held in the Dollar Disbursement Guarantee
Account]* .



     d. After giving effect to the Requested Borrowing, the aggregate amount of all outstanding
Loans does not exceed the Contract Price.



     e. Each of the conditions precedent to the making of the Requested Borrowing are satisfied and
shall remain satisfied on and as of the Requested Borrowing Date.



     f. The Borrower has delivered to the Intercreditor Agent all Monthly Reports delivered to CFE
pursuant to the Public Works Contract and all certifications or other responses thereto received from CFE.



	 	 	 	 	 
	 	
Very truly yours,



CONSTRUCTORA DE PROYECTOS HIDROELECTRICOS, S.A. DE C.V.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	*	 	Id.




 









 










SCHEDULE I




COST CERTIFICATE




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Current Month (Mes en Curso)	 
	 	 	Cumulative10	 	 	Budget	 	 	Actual (Actual)	 
	A. DIRECT COSTS 
COSTOS DIRECTOS
	 	 	 	 	 	 	 	 	 	 	 	 
	Workforce

Mano de Obra
	 	 	 	 	 	 	 	 	 	 	 	 
	Materials

Materiales
	 	 	 	 	 	 	 	 	 	 	 	 
	Machinery 

Maquinaria
	 	 	 	 	 	 	 	 	 	 	 	 
	Materials Processing

Procesamiento de Materiales
	 	 	 	 	 	 	 	 	 	 	 	 
	Electromechanical 

Electromecánicos
	 	 	 	 	 	 	 	 	 	 	 	 
	B. INDIRECT COSTS
 COSTOS INDIRECTOS
	 	 	 	 	 	 	 	 	 	 	 	 
	Construction and conservation of access roads

Construcción y Conservación de Accesos
	 	 	 	 	 	 	 	 	 	 	 	 
	Other installations for electromechanical works 

Otras instalaciones para trabajos electromecánicos
	 	 	 	 	 	 	 	 	 	 	 	 
	Installment and dismantling of Equipment 

Montaje y Desmantelamiento de Equipo
	 	 	 	 	 	 	 	 	 	 	 	 
	Technical and Administrative Personnel

Personal Técnico y Administrativo
	 	 	 	 	 	 	 	 	 	 	 	 
	Travel Allowance 

Pasajes y viáticos
	 	 	 	 	 	 	 	 	 	 	 	 
	Other services

Otros Servicios
	 	 	 	 	 	 	 	 	 	 	 	 
	Execution of Workforce Contracts 

Suscripción de contratos de Trabajo
	 	 	 	 	 	 	 	 	 	 	 	 
	Buildings and locals 

Edificios y otras construcciones
	 	 	 	 	 	 	 	 	 	 	 	 
	Maintenance and storage premises

Locales de mantenimiento y guarda
	 	 	 	 	 	 	 	 	 	 	 	 
	Warehouses 

Bodegas
	 	 	 	 	 	 	 	 	 	 	 	 
	General Installations 

Instalaciones Generales
	 	 	 	 	 	 	 	 	 	 	 	 
	Equipment, furniture and other fixtures 

Equipos, Muebles y enseres
	 	 	 	 	 	 	 	 	 	 	 	 
	Rents (buildings, vehicles) 

Rentas (construcciones, vehículos)
	 	 	 	 	 	 	 	 	 	 	 	 
	Construction of camps 

Construcción de campamentos
	 	 	 	 	 	 	 	 	 	 	 	 
	Installation of electric lines 

Instalación de líneas eléctricas
	 	 	 	 	 	 	 	 	 	 	 	 








 




			
	10	 	Insert cumulative amount to date including amounts included in this Notice of Borrowing.




 









 










	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Current Month (Mes en Curso)	 
	 	 	Cumulative10	 	 	Budget	 	 	Actual (Actual)	 
	Freight and transport of Machinery and others

Fletes y acarreos de Maquinaria y otros.
	 	 	 	 	 	 	 	 	 	 	 	 
	Telecommunications

Telecomunicaciones
	 	 	 	 	 	 	 	 	 	 	 	 
	Information Technologies (Software and
Hardware)

Tecnología Informática (Software and Hardware)
	 	 	 	 	 	 	 	 	 	 	 	 
	Electricity, Gas 

Electricidad y Gas
	 	 	 	 	 	 	 	 	 	 	 	 
	Bidding Costs 

Costos de Licitación
	 	 	 	 	 	 	 	 	 	 	 	 
	Construction of camps, plants and
installation elements

Construcción de campamentos, plantas y
elementos para instalaciones
	 	 	 	 	 	 	 	 	 	 	 	 
	Engineering, Consulting and Laboratories 

Consultoría y Laboratorio de Ingeniaría
	 	 	 	 	 	 	 	 	 	 	 	 
	Insurance, Performance Bond

Seguros, Fianza de Desempeño
	 	 	 	 	 	 	 	 	 	 	 	 
	Corporate Allocation 

Gastos Corporativos
	 	 	 	 	 	 	 	 	 	 	 	 
	Profits before tax 

Utilidad antes de Impuestos
	 	 	 	 	 	 	 	 	 	 	 	 
	VAT Payable 

IVA a Pagar
	 	 	 	 	 	 	 	 	 	 	 	 
	C. AGGREGATE DEBT SERVICE 

SERVICIO DE LA DEUDA EN EL AGREGADO
	 	 	 	 	 	 	 	 	 	 	 	 
	Debt Service (other than Non-Excluded Taxes,

Other Taxes and Additional Amounts)

Debt Service (otro que los Impuestos No Excluidos, Otros
Impuestos y Montos Adicionales)
	 	 	 	 	 	 	 	 	 	 	 	 
	Non-Excluded Taxes, Other Taxes and
Additional Amounts

Impuestos No Excluidos, Otros Impuestos y
Montos Adicionales
	 	 	 	 	 	 	 	 	 	 	 	 
	D. OTHER FINANCING-RELATED EXPENSES (e.g., legal,
consultants, agents and the like)

OTROS GASTOS RELACIONADOS AL FINANCIAMIENTO (e.g.,
abogados, consultores, agents y otros)
	 	 	 	 	 	 	 	 	 	 	 	 






 









 






SCHEDULE II




WIRE TRANSFER INSTRUCTIONS







 









 








Exhibit D

to Amended and Restated

Working Capital Facility Credit Agreement




[FORM OF DISBURSEMENT LC]




[LETTERHEAD OF ISSUING BANK]




[Date]




IRREVOCABLE STANDBY LETTER OF CREDIT NO. ___





	To:  	 	WestLB AG, New York Branch,

as Working Capital Facility Administrative Agent for the lenders

under the Working Capital Facility Credit Agreement and the

Common Agreement referred to below

1211 Avenue of the Americas

New York, New York 10036

Attention: Jared Brenner

Telephone: 1 (212) 852-6166

Telecopier: 1 (212) 789-0075





Dear Sirs:



At the request of our client ____________11 we, the issuing bank (the “Issuing Bank”),
hereby establish this unconditional and irrevocable standby Letter of Credit (this “Letter
of Credit”) in the amount of _______ (the “Total Amount”) in favor of WestLB AG,
New York Branch, in its capacity as Working Capital Facility Administrative Agent under (i) that
certain [Working Capital Facility Credit Agreement dated as of October 19, 2007] [Amended and
Restated Working Capital Facility Credit Agreement dated as of October 13, 2010] (as the same may
be executed, amended, supplemented or otherwise modified from time to time, the “Working
Capital Facility Credit Agreement”), among Constructora de Proyectos Hidroeléctricos, S.A. de
C.V. as Borrower (the “Borrower”), WestLB AG, New York Branch as Working Capital Facility
Administrative Agent (in its capacity as Working Capital Facility Administrative Agent, the
“Beneficiary”), and the Working Capital Facility Lenders from time to time party thereto,
in connection with certain payment obligations of the Borrower under the Working Capital Facility
Credit Agreement and (ii) that certain Common Agreement, dated as of October 19, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Common Agreement”) among the
Borrower, the Beneficiary, WestLB AG, New York Branch, as Intercreditor Agent and as Construction
Facility Administrative Agent, the Working Capital Facility Lenders from time to time party
thereto, the Construction Facility Lenders from time to time party thereto, Citibank, N.A., as
Offshore Collateral Agent,






 




			
	11	 	Insert name of account party, which must not be the Borrower.




 









 









Banco Nacional de México, S.A., Integrante del Grupo Financiero Banamex, as Onshore
Collateral Agent.



The aggregate amount required to be paid by the Issuing Bank pursuant to this Letter of Credit
shall at no time exceed the Total Amount, and all amounts paid by the Issuing Bank in compliance
with this Letter of Credit shall constitute a pro tanto reduction in the Total Amount.



The Beneficiary may demand payment from time to time from the Issuing Bank pursuant hereto by
presenting a certificate which conforms to the form set out in Annex A to this Letter of
Credit, and completed and purportedly signed by an authorized officer of the Beneficiary (each
such certificate, a “Certificate of Execution”). Such Certificates of Execution may be
presented in the form of a letter or other writing transmitted by any means of telecommunication.
Any such Certificate of Execution shall be dated the date of presentation and shall be presented
at or delivered to the office of the Issuing Bank
located at _________ or, (i) if transmitted by authenticated SWIFT, address
or (ii) if transmitted by telecopy, telex or electronic mail, to the
following, respectively, _______, ________or ______.



The Issuing Bank agrees that all demands for payment made by the Beneficiary under this Letter of
Credit shall be honored by the Issuing Bank, and agrees to pay the amounts indicated in the
Certificate of Execution upon presentation of such Certificate of Execution, provided, that the
form of Certificate of Execution and the means of presentation thereof are in compliance with the
provisions set forth in the previous paragraph. The Certificate of Execution shall be presented on
a Business Day and during business hours of the Issuing Bank, which are understood to be 9:00 a.m.
to 5:00 p.m.
(______ time). If a Certificate of Execution is presented before 3:00 p.m.
(______ time), the Issuing Bank is required to place the corresponding funds at the
disposal of the Beneficiary no later than 10:00 a.m. (______ time) on the
Business Day immediately following the day on which the Certificate of Execution was presented. In
the event a Certificate of Execution is presented after 3:00 p.m.
(_______ time), the Issuing Bank is required to place the corresponding funds at the
disposal of the Beneficiary, no later than 10:00 a.m. (______ time) on the second
Business Day immediately following the day on which the Certificate of Execution was presented. As
used in this Letter of Credit, the term “Business Day” means any day of
the year other than a day on which banks located in _______ are authorized or are
required by law or regulation to close.



In the event a Certificate of Execution fails to comply with any requirement indicated in this
Letter of Credit, the Issuing Bank shall immediately notify the Beneficiary in writing at the
address indicated in the heading of this letter, or at such other address as the Beneficiary may
provide to the Issuing Bank in the future for such purpose, that the presentation has been
rejected by the Issuing Bank. The notice of the Issuing Bank shall indicate the reason why the
Issuing Bank considers the Certificate of Execution to be not proper and shall place at the
disposal of the Beneficiary the documents presented by the Beneficiary in support of its demand
for payment. The Beneficiary may thereafter







 









 







present a new Certificate of Execution that is in compliance with the provisions of this Letter of
Credit.



All payments made by the Issuing Bank to the Beneficiary under this Letter of Credit shall be made
by means of wire transfer in immediately available funds to the bank account indicated by the
Beneficiary in New York, New York, U.S.A., in the corresponding request. The Issuing Bank shall
make all payments under this Letter of Credit with its own funds. All payments shall be made by
the Issuing Bank to the Beneficiary under this Letter of Credit without the exercise of any rights
of set-off, counterclaim or other similar rights.



The Issuing Bank [and any confirming bank of this Letter of Credit12] hereby
irrevocably waive[s] all rights and claims against the Borrower and any of its assets in
connection
with the [______________]13 and this Letter of Credit or arising by operation of
law or otherwise in connection therewith (including without limitation pursuant to any applicable
principles of subrogation and any and all rights of the Issuing Bank pursuant to any applicable
law (including without limitation pursuant to
[Sections 5-108(i)(1) and 5-117 of the Uniform
Commercial Code of the State of New York)]14 [Rule 8.01 or 8.02 of the ISP98 (as
defined below))]15 until such time as the Beneficiary has notified the Issuing Bank in
writing that all of the Borrower’s payment obligations pursuant to the financing documents
described in the Common Agreement have been irrevocably and indefeasibly paid and satisfied in
full and all commitments referred to in any such financing documents have terminated. The waiver
set forth in this paragraph shall survive any expiration of this Letter of Credit.



This Letter of Credit shall remain valid until, and expire automatically on, the date (the
“Expiration Date”) that is the earlier of (i) the date on which the Total Amount is
reduced to zero, and (ii) [INSERT ONE YEAR ANNIVERSARY OF THE DATE OF ISSUANCE] (as such date
shall be extended pursuant to the immediately following paragraph). The Beneficiary may not submit
any Certificate of Execution after the Expiration Date.



It is a condition of this Letter of Credit that it shall be deemed automatically extended without
amendment for additional periods of one year from the date set forth in subsection (ii) of the
immediately preceding paragraph, unless at least ninety (90) days prior to such specified date (as
it may have been extended previously hereunder) we notify you by courier that we have elected not
to renew this Letter of Credit for any such additional period.




[Applicable Rules: Version 1-UCP]






 




			
	12	 	If any letter of credit is confirmed, the confirming bank’s form must make clear that that waiver described above is applicable to such bank.
	 
	13	 	Insert description of relevant document(s) which governs the reimbursement obligations of the account party to the Issuing Bank.
	 
	14	 	Include if LC governed by NY law.
	 
	15	 	Insert only if LC utilizes ISP98.




 









 









[This Letter of Credit shall be subject to the provisions (to the extent that such
provisions are not inconsistent with this Letter of Credit) of the Uniform Customs and Practice for
Documentary Credits, 1993 Revision, International Chamber of Commerce Publication No. 500 (the
“UCP”); provided, however, that the provisions of Article 17 thereof are specifically excluded.
With regard to all matters not provided for herein, and, to the extent not inconsistent with the
UCP, this Letter of Credit shall be governed by and interpreted in accordance with the laws of [the
United Mexican States][the State of New York]. The preceding sentence notwithstanding, to the
extent Articles 13(b) and 14(d)(i) of the UCP [and Sections 5-108(b) and 5-108(c) of the New York
Uniform Commercial Code]16 would or could be construed to extend the express time
periods set forth in this Letter of Credit for making payment or giving notice to you that a demand
for payment does not conform to the terms and conditions hereunder, we knowingly and willingly
waive our rights in respect of such provisions and we will make payment hereunder or give notice in
accordance with the terms and conditions of this Letter of Credit.



Notwithstanding Article 48 of the UCP, this Letter of Credit may be transferred to any person that
is a transferee of any Beneficiary’s interest under (a) the Working Capital Facility Credit
Agreement, or (b) any other agreements entered into by the Borrower in connection with the
financing of the Project (as defined below), and the Issuing Bank [and confirming bank] hereby
irrevocably consent[s] to and agree[s] to effect any such transfer. Such transfer shall be
effected upon delivery to us of this Letter of Credit accompanied by a properly completed notice
of transfer in the form attached as Annex B. Upon written request in connection with such
transfer, we shall issue a replacement Letter of Credit on the same terms as this Letter of Credit
but with revised Annexes A and B showing the name of the transferee where applicable. [To
the extent Section 5- 112(b)(2) of the New York Uniform Commercial Code would or could be
construed to impose any additional requirement relating to any such transfer, we knowingly and
willingly waive our rights in respect of such provision and we will effect such transfer in
accordance with the terms and conditions of this Letter of Credit.]17



As used herein, “Project” shall mean the hydroelectric generating plant to be developed and
constructed by the Borrower in the States of Jalisco and Nayarit, Mexico.]



[Applicable Rules: Version 2 — ISP98 (to be used only if the Letter of Credit Provider cannot
provide a Letter of Credit governed by the UCP)]



[This Letter of Credit shall be subject to the provisions (to the extent that such provisions are
not inconsistent with this Letter of Credit) of the International Standby Practices of 1998 (the
“ISP98”). With regard to all matters not provided for herein, and, to the extent not inconsistent
with the ISP98, this Letter of Credit shall be governed by and interpreted in accordance with the
laws of [the United Mexican States][the State of New York]. The preceding sentence
notwithstanding, to the extent Rules 5.01, 5.03 or 5.04 of the ISP98 [and Sections 5-108(b) and
5-108(c) of the New York Uniform Commercial Code]18






 




			
	16	 	Include if LC governed by NY law.
	 
	17	 	Include if LC governed by NY law.
	 
	18	 	Include if LC governed by NY law.




 









 









would or could be construed to extend the express time periods set forth in this Letter of
Credit for making payment or giving notice to you that a demand for payment does not conform to
the terms and conditions hereunder, we knowingly and willingly waive our rights in respect of such
provisions and we will make payment hereunder or give notice in accordance with the terms and
conditions of this Letter of Credit.



Notwithstanding Rules 6.02, 6.03 and 6.04 of the ISP98, this Letter of Credit is transferable (i)
to any person that is a transferee of any Beneficiary’s interest under (a) the Working Capital
Facility Credit Agreement, or (b) any other agreements entered into by the Borrower in connection
with the financing of the Project (as defined below), and the Issuing Bank [and confirming bank]
hereby irrevocably consent[s] to and agree[s] to effect any such transfer. Such transfer shall be
effected upon delivery to us of this Letter of Credit accompanied by a properly completed notice
of transfer in the form attached as Annex B. Upon written request in connection with such
transfer, we shall issue a replacement Letter of Credit on the same terms as this Letter of Credit
but with revised Annexes A and B showing the name of the transferee where applicable. To
the extent Rule 6 of the ISP98 [or Section 5-112(b)(2) of the New York Uniform Commercial
Code]19 would or could be construed to impose any additional requirement relating to
any such transfer, we knowingly and willingly waive our rights in respect of such provision and we
will effect such transfer in accordance with the terms and conditions of this Letter of Credit.



As used herein, “Project” shall mean the hydroelectric generating plant to be developed and
constructed by the Borrower in the States of Jalisco and Nayarit, Mexico.]



[Dispute Resolution: Version 1 — New York law]



We hereby submit to the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state courts sitting in New York County for the
purposes of all legal proceedings arising out of or relating to this Letter of Credit. We hereby
waive, to the fullest extent permitted by law, any objection which we may now or hereafter have to
the laying of the venue of any such proceeding brought in such court and any claim that any such
proceeding brought in such court has been brought in an inconvenient forum. In addition, we hereby
agree to receive and accept service of process sent by registered or certified mail or by
overnight courier to the address at which a sight draft delivered pursuant hereto is to be
presented.



[Dispute Resolution: Version 2 — Mexican Law (to be used only if the Letter of Credit Provider
cannot provide a Letter of Credit governed by New York Law ]



Any disputes and other matters in question arising out of or relating to this Letter of Credit, or
the alleged breach hereof, or in any way relating to the subject matter of this Letter of Credit
or the relationship between the Parties created by this Letter of Credit (hereafter a
“Dispute”) shall be finally resolved by binding arbitration administered by the American
Arbitration Association (“AAA”) under the AAA International Arbitration






 




			
	19	 	Include if LC governed by NY law.




 









 









Rules (the “Rules”) then in force, to the extent such Rules are not inconsistent
with the provisions of this Letter of Credit. The arbitral tribunal shall be composed of three
arbitrators (the “Tribunal”) appointed and confirmed in accordance with the Rules. The
seat of the arbitration shall be New York, New York. The arbitration shall be conducted and the
award rendered in the English language. The Tribunal shall not have the authority to modify or
amend any term or provision of this Letter of Credit. The Parties agree to accept and honor any
interim orders and agree that any such interim orders may be enforced as necessary in any court
having relevant jurisdiction. The award shall be final, non-appealable and binding on the Parties
and may be enforced by a competent court. The Tribunal’s award shall be entitled to all of the
protections and benefits of a final judgment as to any Dispute, including compulsory
counterclaims, that were or could have been presented to the Tribunal. Except to the extent
necessary for proceedings relating to enforcement of the arbitration agreement, the award or
other, related rights of the Parties, the fact of the arbitration, the arbitration proceeding
itself, all evidence, memorials or other documents exchanged or used in the arbitration and the
arbitrators’ award shall be maintained in confidence by the Parties to the fullest extent
permitted by applicable law. The Tribunal shall designate a prevailing Party (or Parties) in its
final award. Pursuant to this determination, the Tribunal shall award to the prevailing Party (or
Parties) its attorneys’ fees, costs and expenses of the arbitration (including the arbitrators’
fees and expenses) in full. The award shall include interest, unless the Tribunal determines it is
not appropriate. Interest shall run from the date of any breach or violation of this Agreement,
which shall be determined by the Tribunal in its award. If the Tribunal cannot determine such date
or fails to specify such date in its award, interest shall run from the date of filing of the
request for arbitration. Interest shall continue to run from the date of award until the award is
paid in full. Interest shall be calculated monthly at a rate equal to the one-year US$ LIBOR rate
as published by the Financial Times on the first business day of the month plus 4 percent.



Any communication from the Beneficiary regarding this Letter of Credit shall be made in writing
and delivered in accordance with the procedures for presentation of the Certificates of Execution.



No provision of this Letter of Credit shall be amended or modified without the express written
consent of the Beneficiary hereunder.



[We hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Letter of Credit or any instrument, certificate or document
delivered in connection herewith.]20



The benefit and burden of this Letter of Credit may not be assigned or transferred by us except
with your prior written consent.




Sincerely,




[Name of Issuing Bank]






 




			
	20	 	Include if LC governed by NY law.




 









 










	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	Title:
	 	Authorized Representative
	 	 	 	 	 	Title:
	 	Authorized Representative	 	 






 









 






ANNEX A




FORM OF CERTIFICATE OF EXECUTION




TO: [INSERT NAME AND ADDRESS OF ISSUING BANK]

Attention:




RE: IRREVOCABLE STANDBY LETTER OF CREDIT NO. _________




Dear Sirs:



I refer to Irrevocable Standby Letter of Credit No. ___ dated _________, ___ issued by
[Issuing Bank] in the amount of ___ Dollars (U.S.$_______) in favor of
[___________]21, as [______]22 (the “Beneficiary”) in connection
with the obligations of the Borrower under the Working Capital Facility Credit Agreement.
Capitalized terms used but not otherwise defined herein shall have the meanings given to them in
the Letter of Credit.



In my capacity as an authorized officer of the Beneficiary, I hereby certify that:





(a) [The Borrower has failed to comply with its payment obligations under the Working Capital
Facility Credit Agreement. Accordingly, the Beneficiary has the right to draw on the Letter
of Credit in the amount set forth in paragraph (b) below.]


OR



[You have notified us of your election not to renew the Letter of Credit and no replacement letter
of credit has been provided to us on behalf of the Borrower.]





(b) The amount that the Beneficiary is entitled to draw on the Letter of Credit is U.S. $_______.



In consideration of the matters set forth above, I hereby demand the wire transfer to bank
account number _________ at _________ in immediately available funds of the
amount indicated in paragraph (b) above. Payment by the Issuing Bank shall be understood to be
made in order to give effect to the Letter of Credit.






 




			
	21	 	Insert name of Beneficiary.
	 
	22	 	Insert capacity of Beneficiary.




 









 










[Place and Date of Execution]




	 	 	 	 	 
	 	Sincerely,

[BENEFICIARY]

[____________]23, as

[____________]24

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	23	 	Insert name of Beneficiary.
	 
	24	 	Insert capacity of Beneficiary.




 









 










ANNEX B




[FORM OF NOTICE OF TRANSFER]




DATE: _________



TO: [INSERT NAME AND ADDRESS OF ISSUING BANK]


Attention:


RE: IRREVOCABLE STANDBY LETTER OF CREDIT NO. _____



The undersigned, an authorized officer of [_______]25, hereby certifies to [INSERT
NAME OF ISSUING BANK] that:



All rights of the undersigned to draw under the Letter of Credit have been and hereby are
irrevocably transferred to:



 


(NAME OF TRANSFEREE)




 


 


 


(ADDRESS OF TRANSFEREE)



By transfer, all rights of the undersigned in the Letter of Credit are transferred to the
transferee and said transferee shall have all and exclusively the sole rights as Beneficiary of
the Letter of Credit, including (without limitation) the right to draw funds under the Letter of
Credit in accordance with its terms.



As provided under the terms of the Letter of Credit, please issue a replacement Letter of Credit
in the name of the transferee at the address set forth above, in an amount equal to the stated
amount of the Letter of Credit on the date of this notice, and otherwise on the same terms as the
original Letter of Credit due but with revised Annexes A and B to the Letter of Credit
showing the name of the Transferee where applicable..




	 	 	 	 	 
	 	[____________]26, as Transferor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	25	 	Insert name of Beneficiary.
	 
	26	 	Insert name of Transferor.




 









 










Exhibit E

to Amended and Restated

Working Capital Facility Credit Agreement




[FORM OF GUARANTOR CONFIRMATION]




Confirmation




     [[Name of Guarantor] (the “Guarantor”)] [Each of [Name of Guarantors] (each a
“Guarantor”)] hereby confirms and agrees that, notwithstanding (i) Consent, Joinder,
Waiver and Amendment No. 3 to the Common Agreement, (ii) Amendment No.1 to the U.S. Security
Agreement (iii) Amendment No.1 to the Depositary Agreement and (iv) the amendment and restatement
of the Working Capital Facility Credit Agreement (to which this Confirmation is attached), the
[name of guarantee] (as defined in the Common Agreement) is, and shall continue to be, in full
force and effect and is hereby confirmed and ratified in all respects and the obligations of the
undersigned under the [name of guarantee] remain unimpaired and are in full force and effect.



     [The] [Each] Guarantor represents and warrants that: (a) this Confirmation has been duly
executed and delivered by [the] [each] Guarantor and (b) this Confirmation constitutes a legal,
valid and binding obligation of [the] [each] Guarantor, enforceable in accordance with its terms.
[The] [Each] Guarantor hereby represents and warrants that each of its representations and
warranties set forth in Article III of the [name of guarantee] are true and correct on and as of
the date hereof as if made on the date hereof (other than any such representation and warranty
that is expressly stated to have been made as of an earlier date, in which case such
representation and warranty was true and correct on and as of such earlier date).



     Terms used but not defined herein shall have the respective meanings accorded thereto by the
Common Agreement, dated as of October 19, 2007 (as amended, supplemented or otherwise modified
from time to time) among Constructora de Proyectos Hidroélectricos, S.A. de C.V. as Borrower,
WestLB AG, New York Branch as Intercreditor Agent, Construction Facility Administrative Agent and
Working Capital Facility Administrative Agent, each of the banks and other financial institutions
listed on the signature pages thereto as Construction Facility Lenders and Working Capital
Facility Lenders, Citibank, N.A. as Offshore Collateral Agent, Banco Nacional de México,
Integrante del Grupo Financiero Banamex as Onshore Collateral Agent and the other Lenders (as
defined therein) and Lender Representatives (as defined therein) from time to time party thereto.




	 	 	 	 	 
	 	[GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 









 






	 	 	 	 	 
	 	[GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Accepted and agreed:



CITIBANK, N.A., as Offshore Collateral Agent

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title: