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FOR ACADEMIC RESEARCH AND INFORMATION PURP OSES ONLY
Clean Energy Investment US-India Partnershi p*
Center for Climate Change Law

08/20/2012

[SUBJECT TO CONTRACT]
[currency and amount in numbers]
FACILITY AGREEMENT1
dated [ ]
for
[ENERGY PROJECT PARENT]
[ENERGY PROJECT HOLDCO]
and
[ENERGY PROJECT COMPANY]
arranged by
[NAME OF ARRANGERS]
with
[NAME OF FACILITY AGENT]
acting as Facility Agent
No part of the legal templates, documents or any other communication may be interpreted as
professional legal advice, counsel or service or the establishment of any contractual,
professional service or fiduciary or relationship of any other sort between the User and the
project or any persons or entities associated with the project (including Columbia University,
Columbia law School, the Center for Climate Change law or its attorneys or staff, the law
firms, attorneys and experts associated with the project, Project Sponsor, their staff and/or
related affiliate or persons, Weil, Gotshal & Manges LLP, its partners, associates and staff,
and AZB & Partners, its partners, associates and staff. ) Furthermore, any potential User
agrees he/she is responsible for obtaining separate legal counsel prior to signing any contract
utilizing project documents in whole or in part, and that the aforementioned persons and
entities are not in any attorney/client or other relationship with the User.
© 2012

1 This draft has been prepared in the general form of an English law agreement, but including provisions to facilitate it being
completed under New York law (and potentially with Indian law where applicable), depending on the requirements of the
Lenders and the Facility Agent/Arranger. We have attempted to indicate those provisions by putting them in bold blue
italics. In addition, various references, cross-references and spellings will be changed as appropriate. The Schedules largely
reflect the Agreement being governed and administered under English law, and to the extent this changes the drafting of the
Schedules will change (perhaps significantly).

Information relating to drafting is included as numbered footnotes.
Information relating to jurisdiction specific points is included as lettered endnotes for explanation and consideration.

* The Project has been funded by the generosity of the Sujana Group.
FOR ACADEMIC RESEARCH AN D INFORMATION PURPOSES ONLY
Clean Energy Investment US-India Partnership*
Center for Climate Change Law

Acknowledgements
Aarthi S. Anand is Project Director of the Clean Energy Investment Project. It was conducted
under the overall supervision of Professor Michael B. Gerrard.

We thank:

 The Sujana Group, especially the Chairman and Member of Parliament, India, Y. S.
Chowdury, the Chief Financial Officer S. Hanumantha Rao, and Hari Kiran Chereddi (former)
Managing Director, Sujana Energy for their generosity in funding the Project;

 Richard Ginsburg and Soo-Jin Shim, Partners, Weil, Gotshal & Manges LLP who served as
the fulcrum for these contracts, and provided unstinting support for the Project;

 Bahram Vakil and Vineetha M.G., Partners, Debashree Dutta, Associate, AZB & Partners,
India for generously sharing their expertise, and without whom the Indian law references would
have been incomplete.

2

* The Project has been funded by the generosity of the Sujana Group.
FOR ACADEMIC RESEARCH AND INFORMATION PURPOSES ONLY
Clean Energy Investment US-India Partnership*
Center for Climate Change Law

We are grateful to:

 Terrence Dugan, Partner, Morgan, Lewis, Bockius LLP,
 John Pritchard, Partner, Holland & Knight LLP,
 Ken Rivlin, Partner, Allen & Overy
for enlightening discussions.
We are indebted to:
 U.C. Banerjee, Retired Justice of the Supreme Court of India;
 Mohan Parasaran, Additional Solicitor General of India & Senior Counsel for reviewing
and providing us helpful summaries on select laws;
 Sriram Panchu, Senior Counsel, Madras High Court;
 Arvind Datar, Senior Counsel, Madras High Court
for their insights.
We are beholden to two leaders from South Africa, Lance Greyling, Shadow Minister for Energy
and Member of Parliament, and Dr.Ruth Rabinowitz, former Member of Parliament, for their kind
support and sharing their perspectives from their country
As well as the members of the Working Group, whose time and experience were essential in
creating and developing the Project documents:
 Y.S.Chowdury, Member of Parliament, India and Chairman, Sujana Group;
 Hari Kiran Chereddi, former Managing Director, Sujana Energy;
 N. Rajashekaran, Citibank, who joined us at the very start;
 Subbu Subramaniam, MCap Fund Managers;
 Arif Padaria, Managing Director of Investments, MassCEC.

We also thank Mohit Paul, Advocate, Supreme Court of India for support in India, and last but not
the least, Jonathan Waisnor (Columbia Law School '12) for invaluable research assistance.

No part of the legal templates, documents or any other communication may be interpreted as
professional legal advice, counsel or service or the establishment of any contractual, professional
service or fiduciary or relationship of any other sort between the User and the project or any
persons or entities associated with the project (including Columbia University, Columbia law
School, the Center for Climate Change law or its attorneys or staff, the law firms, attorneys and
experts associated with the project, Project Sponsor, their staff and/or related affiliate or persons,
Weil, Gotshal & Manges LLP, its partners, associates and staff, and AZB & Partners, its partners,
associates and staff. )Furthermore, any potential User agrees he/she is responsible for obtaining
separate legal counsel prior to signing any contract utilizing project documents in whole or in part,
and that the aforementioned persons and entities are not in any attorney/client or other relationship
with the User.

3

* The Project has been funded by the generosity of the Sujana Group.
FOR ACADEMIC RESEARCH AND INFORMATION PURPOSES ONLY
Clean Energy Investment US-India Partnership*
Center for Climate Change Law

GENERAL ORGANISATIONAL STRUCTURE
(to be removed from the final version)

Sub
Energy Project Parent
(Corporate Sponsor)
Sub
Sub
Possible Other
Subsidiaries
Energy Project Holdco
Guarantees
and Pledges
Facility Agreement
with Arranger,
Facility Agent and
Lenders Security
Package
Loans
Connection Agreement
with local power grid
Energy Project
Power Purchase
Borrower O&M Agreement
Agreement
with operations and
with Energy Project (Special Purpose Company) maintenance company
Parent
EPC Agreement
with contractor/supplier

* The Project has been funded by the generosity of the Sujana Group.
FOR ACADEMIC RESEARCH AND INFORMATION PURPOSES ONLY
Clean Energy Investment US-India Partnership*
Center for Climate Change Law

CONTENTS
Clause Page
1. Definitions and Interpretation ................................................................................................... 1
2. The Facility ............................................................................................................................. 21
3. Purpose .................................................................................................................................... 21
4. Conditions of Utilisation ......................................................................................................... 22
5. Utilisation ................................................................................................................................ 23
6. Repayment .............................................................................................................................. 25
7. Prepayment and cancellation .................................................................................................. 26
8. Interest..................................................................................................................................... 33
9. Interest Periods ........................................................................................................................ 34
10. Changes to the calculation of interest ..................................................................................... 35
11. Fees ......................................................................................................................................... 36
12. Tax gross up and indemnities .................................................................................................. 38
13. Increased costs ........................................................................................................................ 45
14. Other indemnities .................................................................................................................... 46
15. Mitigation by the Lenders ....................................................................................................... 47
16. Costs and expenses ................................................................................................................. 48
17. Guarantee and indemnity ........................................................................................................ 49
18. Representations ....................................................................................................................... 53
19. Information undertakings ........................................................................................................ 60
20. Financial covenants ................................................................................................................. 65
21. General undertakings .............................................................................................................. 65
22. Events of Default .................................................................................................................... 76
23. Changes to the Lenders ........................................................................................................... 82
24. Changes to the Obligors .......................................................................................................... 86
25. Role of the Agents and the Arranger ...................................................................................... 88
26. Conduct of business by the Finance Parties ............................................................................ 94
27. Sharing among the Finance Parties ......................................................................................... 94
28. Payment mechanics ................................................................................................................. 96
ii
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Center for Climate Change Law

29. Set-off ..................................................................................................................................... 98
30. Notices .................................................................................................................................... 99
31. Calculations and certificates ................................................................................................. 100
32. Partial invalidity .................................................................................................................... 101
33. Remedies and waivers ........................................................................................................... 101
34. Amendments and waivers ..................................................................................................... 101
35. Confidentiality ...................................................................................................................... 102
36. Counterparts .......................................................................................................................... 105
37. Governing law ....................................................................................................................... 106
38. Enforcement .......................................................................................................................... 106

Schedule 1 The Original Parties............................................................................................... 111
Schedule 2 Conditions Precedent ............................................................................................. 114
Schedule 3 Requests ................................................................................................................ 118
Schedule 4 Mandatory Cost Formula....................................................................................... 120
Schedule 5 Form of Transfer Certificate .................................................................................. 121
Schedule 6 Form of Assignment Agreement ........................................................................... 123
Schedule 7 Form of Accession Letter ...................................................................................... 126
Schedule 8 Form of Resignation Letter ................................................................................... 127
Schedule 9 Form of Compliance Certificate ............................................................................ 128
Schedule 10 Existing Security ................................................................................................... 129
Schedule 11 LMA Form of Confidentiality Undertaking .......................................................... 130
Schedule 12 Repayment of Loans .............................................................................................. 131
Schedule 13 Timetables ............................................................................................................. 132
Schedule 14 Clearances ............................................................................................................. 133
iii
* The Project has been funded by the generosity of the Sujana Group.
FOR ACADEMIC RESEARCH AND INFORMATION PURPOSES ONLY
Clean Energy Investment US-India Partnership*
Center for Climate Change Law

THIS AGREEMENT is dated [ ] and made between:A
(1) [ENERGY PROJECT PARENT], a company organised under the laws of the Republic of
India (the “Company”);
(2) [ENERGY PROJECT HOLDCO], a company organised under the laws of the Republic of
India (“Holdco”);B
(3) [ENERGY PROJECT COMPANY], a company organised under the laws of the Republic
of India and an indirect Subsidiary of the Company, as the original borrower (the
“Borrower”);C
(4) THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 as original guarantors
(together with the Company and Holdco, the “Original Guarantors”);D
(5) [ ] [and [ ]] as mandated lead arranger[s] ([whether acting individually or
together] the “Arranger”);
(6) THE FINANCIAL INSTITUTIONS listed in Part II and Part III of Schedule 1 as lenders
(the “Original Lenders”);E
(7) [ ] as facility agent of the other Finance Parties (in this capacity, the “Facility
Agent”); and
(8) [ ] as security agent and trustee (in this capacity, the “Security Agent”).F

IT IS AGREED as follows:
ARTICLE 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
“Acceptable Bank” means:
(a) a bank or financial institution which has a rating for its long-term unsecured and
non-credit enhanced debt obligations of A-1 or higher by Standard & Poor’s Rating
Services, a division of The McGraw-Hill Companies, Inc. or P-1 or higher by
Moody’s Investors Service Limited or a comparable rating from an internationally
recognised credit rating agency; or
(b) any other bank or financial institution approved by the Facility Agent.

* The Project has been funded by the generosity of the Sujana Group.
FOR ACADEMIC RESEARCH AND INFORMATION PURPOSES ONLY
Clean Energy Investment US-India Partnership*
Center for Climate Change Law

“Accounting Standards” means accounting standards which, as at the date of this
Agreement, are:
(a) in the case of the consolidated accounts of the Company and the Borrower,
[GAAP]/[IFRS]; and
(b) in the case of accounts of any other Group Member, generally accepted in the
jurisdiction of incorporation of that member of the Group and approved by the
relevant regulatory or other accounting bodies in that jurisdiction.
[“Additional Cost Rate” has the meaning given to it in Schedule 4 (Mandatory Cost
formulae).]2
“Additional Guarantor” means a company which becomes an Additional Guarantor in
accordance with Clause 24 (Changes to the Obligors).3
“Affiliate” means, in relation to any person, [a Subsidiary of that person or a Holding
Company of that person or any other Subsidiary of that Holding Company]/[another person
that directly, or indirectly through one or more intermediaries, Controls or is Controlled by
or is under common Control with the person specified; provided, however, that, for purposes
Clause 21.19 (Arm’s-length terms), the term “Affiliate” shall also include (i) any person that
directly or indirectly owns more than 10% of any class of equity interests of the person
specified or (ii) any person that is an officer or director of the person specified].
“Agents” means the Facility Agent or the Security Agent, as appropriate.
“Approved Bank” means an Acceptable Bank which has been given and has acknowledged
all notices (if any) required to be given to it under the Security Documents. If an Acceptable
Bank is a Lender it will be deemed to have received and acknowledged those notices by
virtue of being a Lender.
“Assignment Agreement” means an agreement substantially in the form set out in Schedule
6 (Form of Assignment Agreement) or any other form agreed between the relevant assignor
and assignee.
“Auditors” means the firm of independent accountants appointed as auditors of the
Company and the Borrower in accordance with Clause 21.18 (Auditors).
“Authorisation” means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration.
“Availability Period” means the period from and including the date of this Agreement to
and including [ ].

2 This is relevant if English law governs.
3 Please see comments with regard to guarantees in Endnote D.
2

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Center for Climate Change Law

“Available Commitment” means a Lender’s Commitment minus:
(a) the amount of its participation in any outstanding Loans; and
(b) in relation to any proposed Utilisation, the amount of its participation in any Loans
that are due to be made on or before the proposed Utilisation Date.
“Available Facility” means the aggregate for the time being of each Lender’s Available
Commitment.
“Borrower” has the meaning given to such term in the introductory listing of parties to this
Agreement.
“Break Costs” means the amount (if any) by which:
(a) the interest which a Lender should have received for the period from the date of
receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day
of the current Interest Period in respect of that Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last day of that Interest
Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing an amount equal
to the principal amount or Unpaid Sum received by it on deposit with a leading
bank in the Relevant Interbank Market for a period starting on the Business Day
following receipt or recovery and ending on the last day of the current Interest
Period.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for
general business in [London]/[New York City]/[India] and [________]4.
“CERs” means certified emission reductions issued pursuant to the United Nations
Framework Convention on Climate Change adopted in New York on May 9, 1992 (the
“UNFCCC”), the protocol to the UNFCCC adopted at the Third Conference of the Parties in
Kyoto, Japan on December 11, 1997, as may be amended from time to time.
“Clearances” means any consent, license, approval, registration, permit or other
authorisation of any nature which is required to be granted by any statutory or regulatory
authority or any other person for purposes of: (i) utilising the Facility; (ii) fulfilling the
obligations of the Borrower under the Transaction Documents; (iii) the enforceability of any
Transaction Documents and the making of any payments contemplated thereunder; (iv) the
construction, operation, and maintenance of the New Energy Project; and (v) all such other
matters as may be necessary in connection with the New Energy Project or the performance

4 Include the city of the Borrower’s general offices.
3

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Center for Climate Change Law

of any Person’s obligations under any Transaction Document, and shall in any event include
those Clearances listed in Schedule 14.
“Commitment” means:
(a) in relation to an Original Lender, the amount set opposite its name under the
heading “Commitment” in Part II or Part III of Schedule 1 (The Original Parties)
and the amount of any other Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount of any Commitment transferred to it
under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
“Company” has the meaning given to such term in the introductory listing of parties to this
Agreement.
“Compliance Certificate” means a certificate substantially in the form set out in Schedule 9
(Form of Compliance Certificate) or such other form that is satisfactory to the Facility
Agent.
“Confidential Information” means all information relating to the Company, any Obligor,
the Group, the Finance Documents or the Facility of which a Finance Party becomes aware
in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a
Finance Party in relation to, or for the purpose of becoming a Finance Party under, the
Finance Documents or the Facility from either:
(a) any member of the Group or any of its advisers; or
(b) another Finance Party, if the information was obtained by that Finance Party
directly or indirectly from any member of the Group or any of its advisers,
in whatever form, and includes information given orally and any document, electronic file or
any other way of representing or recording information which contains or is derived or
copied from such information but excludes information that:
(i) is or becomes public information other than as a direct or indirect result of
any breach by that Finance Party of Clause 35 (Confidentiality); or
(ii) is identified in writing at the time of delivery as non-confidential by any
member of the Group or any of its advisers; or
(iii) is known by that Finance Party before the date the information is disclosed to
it in accordance with paragraphs (a) or (b) above or is lawfully obtained by
that Finance Party after that date, from a source which is, as far as that
Finance Party is aware, unconnected with the Group and which, in either case,
4

* The Project has been funded by the generosity of the Sujana Group.