The State requires visibility of, and consent rights in respect of, any Refinancing during the Term. The concept of Refinancing is linked intrinsically to changes to, or the replacement of, the Finance Documents which the State has reviewed and accepted prior to Financial Close.
Refinancing is broadly defined, and means:
• any Amendment, novation, supplement or replacement of any Finance Document;
• the exercise of any right, or the grant of any waiver or consent, under any Finance Document;
• the disposition of any rights or interests in, or the creation of any rights of participation in connection with the Finance Documents or the creation or granting of any other form of benefit or interest in either the Finance Documents or the contracts, revenues or assets of the Group whether by way of security or otherwise;
• any new financing arrangements entered into by a Group Member which has the effect of restructuring the then current financing arrangements; or
• any other step or arrangement that has an effect which is similar to any of the actions referred to above,
and which will, or is likely to:
• give rise to a Refinancing Gain;
• change the type, amount, pricing, tenor, terms for payment or repayment, hedging or financial covenants of any financial accommodation connected with the Project; or
• adversely affect any of the State's rights, obligations or liabilities in accordance with the State Project Documents.
Any change in the timing or manner of payment of the State Contribution under the Project Deed is also a Refinancing.
Refinancing does not include:
• entering into derivative transactions contemplated by the Finance Documents to be entered into on or before Financial Close;
• the syndication or subscription of any debt in accordance with the Finance Documents that is contemplated at Financial Close;
• the change in control or sell down of any bonds in an arm's length transaction at market value; or
• a prepayment of debt as a consequence of receipt of the State Contribution.
The Refinancing provisions also apply where a Refinancing does not give rise to a Refinancing Gain, including in a so-called 'rescue refinance' where the Refinancing is required because the Project is in distress and Project Co is unable to meet its ongoing debt service obligations. However, the State does recognise that in this situation, time can be critical, and the State therefore accepts an abridged period of advance notice for the purpose of consulting with the State regarding Project Co's proposed Refinancing strategy.