CONFLICT
OF LAWS.
THE PARTIES HERETO HEREBY DECLARE THAT IT IS THEIR INTENTION THAT THIS
AGREEMENT SHALL BE REGARDED AS MADE UNDER THE LAWS OF THE STATE OF DELAWARE AND
THAT THE LAWS OF SAID STATE SHALL BE APPLIED IN INTERPRETING ITS PROVISIONS IN
ALL CASES WHERE LEGAL INTERPRETATION SHALL BE REQUIRED.
EACH OF THE PARTIES
HERETO AGREES (A) THAT THIS AGREEMENT INVOLVES AT LEAST $100,000.00, AND
(B) THAT THIS AGREEMENT HAS BEEN ENTERED INTO BY THE PARTIES HERETO IN EXPRESS
RELIANCE UPON 6 DEL. C. § 2708.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY AGREES (A) TO BE SUBJECT TO THE JURISDICTION OF THE COURTS
OF THE STATE OF DELAWARE AND OF THE FEDERAL COURTS SITTING IN THE STATE OF
DELAWARE, AND (B) (1) TO THE EXTENT SUCH PARTY IS NOT OTHERWISE SUBJECT TO
SERVICE OF PROCESS IN THE STATE OF DELAWARE, TO APPOINT AND MAINTAIN AN AGENT IN
THE STATE OF DELAWARE AS SUCH PARTY'S AGENT FOR ACCEPTANCE OF LEGAL PROCESS, AND
(2) THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SERVICE OF PROCESS
MAY ALSO BE MADE ON SUCH PARTY BY PREPAID CERTIFIED MAIL WITH A PROOF OF MAILING
RECEIPT VALIDATED BY THE UNITED STATES POSTAL SERVICE CONSTITUTING EVIDENCE OF
VALID SERVICE, AND THAT SERVICE MADE PURSUANT TO (B) (1) OR (2) ABOVE SHALL, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HAVE THE SAME LEGAL FORCE AND
EFFECT AS IF SERVED UPON SUCH PARTY PERSONALLY WITHIN THE STATE OF DELAWARE.
(b)
THE PARTIES HERETO EACH HEREBY WAIVE TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED
WITH, RELATING OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
Section 6.12.
No Petition.
The Contributor covenants that for a period of one year and one day after
payment in full of all indebtedness under the Credit Agreement it will not
institute against, or join any Person in instituting against Contributee any
involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other involuntary proceedings under any United States federal or
state bankruptcy or similar law.
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17
IN WITNESS WHEREOF, the parties hereby have caused this Asset Contribution
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
FS ENERGY AND POWER FUND, as Contributor
By:
/s/ Gerald F. Stahlecker
Name: Gerald F. Stahlecker
Title: EVP
FSEP TERM FUNDING, LLC, as Contributee
By:
/s/ Gerald F. Stahlecker
Name: Gerald F. Stahlecker
Title: EVP
[Signature Page to Asset Contribution Agreement]
Schedule 1
Contributed Assets