10.1 The Board shall at Project Co's expense, take whatever action the Agent, an Appointed Representative or a Suitable Substitute Contractor taking a transfer in accordance with paragraph 9.1 (Novation) may require for perfecting any transfer or release under paragraph 6 (Representative) above, paragraph 8 (Step-Out) above and paragraph 9 (Novation) above including the execution of any transfer or assignment, and the giving of any notice, order or direction and the making of any registration which, in each case, the Agent or Appointed Representative or Suitable Substitute Contractor reasonably requires.
10.2 The Board shall not take any action to wind up, appoint an administrator or sanction a voluntary arrangement (or similar) in relation to Project Co.
10.3 This Agreement shall remain in effect until the earlier of:
10.3.1 the Final Payment Date;
10.3.2 the date of termination of the Project Agreement; or
10.3.3 the date of transfer of Project Co's rights and liabilities under the Board Project Documents to a Suitable Substitute Contractor pursuant to paragraph 10.1 (Novation) above.
10.4 The Agent, in respect of paragraphs 10.4.1, 10.4.2 and 10.4 2 and 10.4.3, and Project Co, in respect of paragraph 10.4.4 shall promptly notify the Board of:
10.4.1 any Enforcement Event and any action taken in connection with such Enforcement Event, any decisions to accelerate the maturity of any amounts owing by Project Co to the Senior Funders under the Senior Funders Agreement and/or any decisions to demand repayment;
10.4.2 the date referred to in paragraph 10.3.1 above on or before the date falling twenty (20) Business Days after its occurrence:
10.4.3 the details and amount of any proposed Additional Permitted Borrowing including:
(a) the circumstances giving rise to it and reasons for it; and
(b) the terms on which it will be borrowed;
10.4.4 on the first Business Day of each calendar month during which any Additional Permitted Borrowing is, or may be, subsisting, the amount outstanding under the Senior Funders Agreements (as the same may be amended (whether or not with the approval of the Board))and, to the extent it is aware (having made reasonable and proper enquiry);
(a) the amount of any [Distribution] made by Project Co; and
(b) the amount of any credit balance on any account of Project Co16
10.5 Project Co joins in this Agreement to acknowledge and consent to the arrangements set out and agrees not knowingly to do or omit to do anything that may prevent any party from enforcing its rights under this Agreement.
10.6 For the avoidance of doubt, if there is any conflict or inconsistency between the provisions of this Agreement and the Project Agreement, the provisions of this Agreement shall prevail.
10.7 Notwithstanding any provision in the Collateral Agreements to the contrary, the Board agrees that, subject to paragraphs 10.8 and 10.9, it will not, in respect of any particular Collateral Agreement, exercise or seek to exercise any of its step-in rights or other rights (other than design, intellectual property or similar rights) under such Collateral Agreement until the earliest of:
(a) the Senior Debt Discharge Date; or
(b) the date on which the Agent has given its written consent to such exercise; or
(c) the time when in respect of any such Collateral Agreement either:
(i) the Senior Funders have failed to exercise any corresponding right to such Collateral Agreement under their own Security Documents and the time for exercising such right has ended in accordance with the terms thereof; or
(ii) the Agent has confirmed in writing to the Board (following any request from the Board for such confirmation, to which the Agent shall be obliged to respond promptly) that it does not intend to exercise any of its rights under the relevant Security Document or that it has no further claim thereunder; or
(iii) the Senior Funders have stepped in to or otherwise directly or indirectly taken control over the rights of Project Co under the relevant Sub-Contract (in accordance with their rights under their Security Documents) and then stepped out from, or otherwise relinquished control of such rights under or in connection with such Sub-Contract; or
(d) the date falling [ ] months after the date on which the Project Agreement has been terminated in accordance with its terms and the terms of this Agreement.
10.8 In addition to its rights under paragraph 10.7, where the Project Agreement has not been terminated but a counterparty has a right to terminate its Sub-Contract for breach by Project Co of the terms of such Sub-Contract the Board may pay directly, or undertake to make a payment directly to the counterparty concerned, amounts due pursuant to the Sub-Contract and may set off any such sums against any payments payable by the Board to Project Co under the Project Agreement so as to satisfy them pro tanto, provided always that the Board shall not exercise its rights under this paragraph 10.8 in respect of any particular Sub-Contract in circumstances where the Senior Funders have stepped in to or otherwise directly or indirectly taken control over the relevant Sub-Contract and have not stepped out of it or otherwise relinquished such control.
10.9 In addition to its rights under paragraph 10.7, where the Project Agreement has been terminated, the Board shall from the Termination Date be able to exercise any of its step-in rights or other rights under or in respect of any of the Collateral Agreements; however notwithstanding the terms of the Collateral Agreements or any other provisions of this paragraph 10.9, each of the relevant Sub-Contractors (and any guarantors thereof as relevant) shall remain responsible, and be liable, to Project Co in respect of all costs, claims, damages, losses and liabilities which shall have arisen out of or in connection with the relevant Sub-Contracts in respect of the period prior to the Termination Date in relation to which the Agent acting on behalf of Project Co and the Senior Funders shall retain the benefit of all and any rights to all such costs, claims, damages, losses and liabilities.
10.10 Except in accordance with the provisions of paragraphs 10.7 to 10.9 (inclusive) the Board shall not, prior to the Senior Debt Discharge Date:
(a) claim, recover, retain or receive (or seek to claim, recover, retain or receive) any amount under the Collateral Agreements in respect of a loss for which a Sub-Contractor is also liable to the Senior Funders;
(b) take any action to wind-up, appoint an administrator, seek an interim order appointee (under paragraph 3(b) of the Insolvency Act 1986 (as amended)) or sanction a voluntary arrangement (or similar) in relation to Project Co; or
(c) save with the prior written consent of the Agent, compete on grounds (whether in whole or in part) relating to the Project (by virtue of a claim under any of the Collateral Agreements, the Project Agreement or any other Project Document or otherwise) with the rights of the Senior Funders on any formal insolvency of any Sub-Contractor or Project Co, nor claim to be subrogated to the rights of any Senior Funders
10.11 The Board agrees and undertakes that if it receives any amount in contravention of the provisions of paragraph 10.10 above it will promptly turn the same over to the Agent and pending such payment hold the same on trust for the Agent and the Senior Funders.
10.12 Notwithstanding the terms of the Project Agreement and Security Documents, the Agent agrees that the Board may exercise its rights to have transferred to it or its nominee any Unrestricted Assets following the Termination Date and the Agent will not exercise or seek to exercise any enforcement rights and shall on or before the date any Unrestricted Assets are transferred to the Board or its nominee, as the case may be, release its security over them.
10.13 Notwithstanding the terms of any Senior Funders Agreements, the parties agree and shall, to the extent it is within their power, direct that all insurance proceeds receivable or received by Project Co under the insurances referred to in Clause 36 of the Project Agreement shall be paid directly into the Insurance Proceeds Account and applied in accordance with the Project Agreement.
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16 For a Bond Transaction, 10.4.4 may be replaced by a new clause as follows if the Board think this appropriate:
on each [Payment Date] during which any Additional Permitted Borrowing is, or may be, subsisting, the amount outstanding under the Senior Funders Agreements and to the extent it is aware (having made reasonable and proper enquiry);
(a) on each [Payment Date] and the first Business Day of each calendar month following a Distribution made by ProjectCo the amount of any Distribution made; and
(b) on each [Payment Date] and on the first Business Day of each calendar month following 5 Business Days written notice from the Board the amount of any credit balance on any account of ProjectCo.