CHINA POWER INTERNATIONAL HOLDING LIMITED
as Guarantor and a Sponsor
and
AES CHINA HOLDING COMPANY (L) LIMITED
as Junior Lender and a Sponsor
and
ANHUI LIYUAN ELECTRIC POWER DEVELOPMENT COMPANY LIMITED
and
WUHU ENERGY DEVELOPMENT COMPANY
together as Junior Subordinated Lenders and Sponsors
and
WUHU SHAODA ELECTRIC POWER DEVELOPMENT COMPANY LIMITED
as Borrower
JUNIOR SUBORDINATION AGREEMENT
CHADBOURNE & PARKE LLP
AMERICAN ATTORNEYS AT LAW
SUITE 3704, PEREGRINE TOWER
LIPPO CENTRE, 89 QUEENSWAY
HONG KONG
CONTENTS
Number Clause Heading Page
- ------ -------------- ----
1. Interpretation.....................................................2
2. Subordination of Indebtedness......................................5
3. Permitted Payments................................................15
4. Further Acknowledgments...........................................15
5. Acknowledgment by Borrower........................................16
6. Continuing Security...............................................17
7. Representations and Warranties....................................17
8. Undertakings......................................................18
9 Borrower's Representations, Warranties and Undertakings...........20
10. Claims by Junior Creditors........................................21
11. Taxes and Other Deductions........................................21
12. Costs, Charges and Expenses.......................................21
13. Indemnity.........................................................22
14. Further Assurance.................................................23
15. Suspense Account..................................................23
16. Waiver and Severability...........................................23
17. Miscellaneous.....................................................24
18. Assignment........................................................25
19. Notices...........................................................26
20. Governing Law and Jurisdiction....................................27
Execution Block
THIS DEED is made on the day of 1996
-------------- ----------------------
AMONG:
(1) CHINA POWER INTERNATIONAL HOLDING LIMITED of Suite 5306, Central Plaza,
18 Harbour Road, Wanchai, Hong Kong (in its capacity as guarantor of
the obligations of the Borrower under the Senior Loan Agreement, the
Guarantor, and in its capacity as a sponsor of the Project and as a
provider of subordinated loans under clause 2.02 of the Senior
Subordination Agreement, a 'Sponsor');
(2) AES CHINA HOLDING COMPANY (L) LIMITED of Lot A, Level 3, Wisma Oceanic,
Jalan OKK Awang Besar, 87007, Federal Territory of Labuan, Malaysia (in
its capacity as a lender under the AES Loan Agreement, the 'Junior
Lender', and in its capacity as a sponsor of the Project and as a
provider of subordinated loans under clause 2.02 of the Senior
Subordination Agreement, a 'Sponsor');
(3) ANHUI LIYUAN ELECTRIC POWER DEVELOPMENT COMPANY LIMITED of No. 415 Wuhu
Road, Hefei, Anhui Province, People's Republic of China ('Anhui
Liyuan');
(4) WUHU ENERGY DEVELOPMENT COMPANY of Commercial Office Building, West
Huangshan Road, Wuhu, Anhui Province, People's Republic of China
('Wuhu');
(Anhui Liyuan and Wuhu shall, in their capacities as lenders under
their respective Committed Junior Subordinated Loan Agreements, be
collectively referred to as the 'Junior Subordinated Lenders', and in
their capacities as sponsors of the Project and as providers of
subordinated loans under clause 2.02 of the Senior Subordination
Agreement, 'Sponsors'); and
(5) WUHU SHAODA ELECTRIC POWER DEVELOPMENT COMPANY LIMITED, an equity joint
venture company formed under the Law of the People's Republic of China
on Joint Ventures Using Chinese and Foreign Investment and whose
registered office is at Commercial Office Building, West Huangshan
Road, Wuhu, Anhui Province, People's Republic of China, as borrower
(the 'Borrower').
WHEREAS:
(A) By a guarantee (the 'CPIL Guarantee') executed, or to be executed, by
(1) the Guarantor and (2) the Facility Agent, the Guarantor has agreed
to guarantee the payment obligations of the Borrower under the Senior
Loan Agreement, upon the terms set out therein.
(B) By a loan agreement (the 'AES Loan Agreement') executed, or to be
executed, by (1) the Borrower and (2) the Junior Lender, the Junior
Lender has agreed to make available to the Borrower a term loan
facility of up to eighteen million Dollars (US$18,000,000) (the 'AES
Loan'), upon the terms set out therein.
(C) By a loan agreement (the 'Anhui Liyuan Loan Agreement') executed, or to
be executed, by (1) the Borrower and (2) Anhui Liyuan, Anhui Liyuan has
agreed to make available to the Borrower a term loan facility upon the
terms set out therein.
(D) By a loan agreement (the 'Wuhu Loan Agreement') executed, or to be
executed, by (1) the Borrower and (2) Wuhu, Wuhu has agreed to make
available to the Borrower a term loan facility upon the terms set out
therein.
(E) By an undertaking and subordination deed (the 'Senior Subordination
Agreement') executed, or to be executed, by (1) the Borrower, (2) the
Facility Agent and (3) the Sponsors, the Sponsors have agreed, among
other things, to make subordinated loans available to the Borrower to
meet Working Capital Deficits (as defined in the Senior Subordination
Agreement), upon the terms set out therein.
(F) It is a condition precedent to the Junior Lender making the Facility
available to the Borrower that each of the parties hereto enter into
this Deed.
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.01 Definitions and Construction. In this Deed, unless the context requires
otherwise:
(a) terms and expressions defined in or construed for the purposes
of the AES Loan Agreement shall have the same meanings or be
construed in the same manner when used in this Deed;
(b) 'Class A Indebtedness' means all and any sums now or hereafter
due and owing by the Borrower to the Guarantor by way of
subrogation, set-off, counterclaim or otherwise against the
Borrower in respect of any payment made by the Guarantor under
the Guarantee, provided that such Class A Indebtedness shall
not exceed sixty-five million Dollars (US$65,000,000);
(c) 'Class B Indebtedness' means all and any sums (whether
principal, interest, fees or otherwise) now or hereafter due
and owing by the Borrower to the Junior Lender under the AES
Loan Agreement or any Subordinated Security Document to which
the Borrower is a party and all other monies thereby secured;
(d) 'Class C Indebtedness' means all and any sums (whether
principal, interest, fees or otherwise) now or hereafter due
and owing by the Borrower to the Junior Subordinated Lenders
under the Committed Junior Subordinated Loan Agreements;
(e) 'Class D Indebtedness' means all and any sums (whether
principal, interest, fees or otherwise) now or hereafter due
and owing by the Borrower to the Sponsors under the Sponsor
Subordinated Loan Agreements;
(f) 'Committed Junior Subordinated Loan Agreements' means the
Anhui Liyuan Loan Agreement and the Wuhu Loan Agreement;
(g) 'Committed Junior Subordinated Loans' means the loans made
under the Committed Junior Subordinated Loan Agreements;
(h) 'Event of Default' means, with respect to each class of
indebtedness, any occurrence of any event of default in any
document evidencing any Senior Indebtedness; and 'prospective
Event of Default' means any event or circumstance which with
the giving of notice and/or the passage of time and/or the
making of any relevant determination and/or the forming of any
necessary opinion would be an Event of Default;
(i) A 'holder' of any class of indebtedness means the holder of
the specified class of indebtedness, as such, for purposes of
determining rights and obligations hereunder, without regard
to any other class of indebtedness that may also be held by
such holder.
(j) 'Junior Creditor' means any holder of Junior Indebtedness, as
such.
(k) 'Junior Indebtedness' means, with respect to any class of
indebtedness subject to this Deed, another class of
indebtedness which is subordinated in right of payment as
provided in Clause 2, and
(i) with respect to Class A Indebtedness, Junior
Indebtedness means Class B, C and D Indebtedness;
(ii) with respect to Class B Indebtedness, Junior
Indebtedness means Class C and D Indebtedness; and
(iii) with respect to Class C Indebtedness, Junior
Indebtedness means Class D Indebtedness;
(l) 'Senior Creditor' means any holder of Senior Indebtedness, as
such.
(m) 'Senior Indebtedness' means, with respect to any class of
indebtedness subject to this Deed, another class of
indebtedness which has priority in right of payment as
provided in Clause 2, and
(i) with respect to Class D Indebtedness, Senior
Indebtedness means Class A, B and C Indebtedness;
(ii) with respect to Class C Indebtedness, Senior
Indebtedness means Class A and B Indebtedness; and
(iii) with respect to Class B Indebtedness, Senior
Indebtedness means Class A Indebtedness;
(n) 'Sponsor Subordinated Loan Agreements' means all loan
agreements, facility letters or other documents now or
hereafter entered into between the Sponsors and the Borrower
creating or evidencing all loans made pursuant to clause 2 of
the Senior Subordination Agreement;
(o) 'Subordinated Indebtedness' means the Class A, B, C and D
Indebtedness; and
(p) 'Subordinated Loan Agreements' means all loan agreements,
facility letters or other documents now or hereafter entered
into between the holders of Class B, C and D Indebtedness and
the Borrower.
1.02 The Junior Creditors. References to the Junior Creditors shall mean and
include each and every person liable hereunder as a Junior Creditor or,
where the context permits, any one or more of them and all
representations, warranties, undertakings, agreements and obligations
of the Junior Creditors herein expressed or implied shall, unless the
context requires otherwise, be deemed to be made, given or assumed by
each of the Junior Creditors severally.
1.03 Successors and Assigns. The expressions 'Guarantor', 'Sponsors',
'Junior Subordinated Lenders', 'Borrower', 'Junior Lender', 'Anhui
Liyuan', 'Wuhu', 'holder', 'Junior Creditor' and 'Senior Creditor'
shall where the context permits include their respective personal
representatives, successors and permitted assigns and any persons
deriving title under them.
1.04 Miscellaneous. In this Deed, unless the context requires otherwise,
references to statutory provisions shall be construed as references to
those provisions as replaced, amended, modified or re-enacted from time
to time; words importing the singular include the plural and vice versa
and words importing a gender include every gender; references to any
document referred to herein shall be construed as references to such
document as the same may be amended or supplemented (provided that any
required consent or approval for such amendment or supplement has been
obtained) from time to time; unless otherwise stated, references to
Clauses are to clauses of this Deed. Clause headings are inserted for
reference only and shall be ignored in construing this Deed.
2. SUBORDINATION OF INDEBTEDNESS
2.01 Class A Indebtedness.
(a) Subordination. In consideration of the holder of Class A
Indebtedness agreeing to guarantee the obligations of the
Borrower under the Senior Loan Agreement and as a continuing
security for the due and punctual payment of the Class A
Indebtedness and the due and punctual performance and
observance by the Borrower of all obligations of the Borrower
contained in any security document in favor of the Guarantor
to which the Borrower is a party, each of the holders of Class
B, C and D Indebtedness agrees that throughout the continuance
of this Deed and so long as the Class A Indebtedness or any
part thereof remains owing:
(i) except as provided in Clause 3, the Class B, C
and D Indebtedness, as applicable, owing to it:
(A) is, and shall remain, subordinated and the
payment thereof deferred to all and any
rights, claims and actions which the holder
of Class A Indebtedness may now or hereafter
have against the Borrower in respect of the
Class A Indebtedness;
(B) shall not be repaid or repayable, in whole
or in part, except with the prior written
consent of the holder of Class A
Indebtedness in the event of the winding-up,
liquidation or dissolution of the Borrower
(or any proceedings analogous thereto);
(C) may accrue interest, but such interest shall
not be payable;
(D) except for the Class B Indebtedness, is
and shall remain unsecured by any
Charge over the whole or any part of the
assets of the Borrower; and
(E) is not, and shall not become capable of
being, subject to any right of set-off
or counterclaim;
(ii) except as provided in Clause 3, it shall not claim,
request, demand, sue for, take or receive (whether by
set-off or in any other manner and whether from the
Borrower or any other person) any money or other
property in respect of the Class B, C or D
Indebtedness or any part thereof;
(iii) if any monies (including the proceeds of any
set-off or counterclaim) or other property are
received directly or indirectly in respect of
any Class B, C or D Indebtedness by or on behalf
of it in breach of any of the provisions of this
Deed, it will hold the same upon trust to be
applied first in or towards payment of Class A
Indebtedness and second, as to any balance
remaining after irrevocable and unconditional
payment and discharge in full of the Class A
Indebtedness, in or towards payment of the Class B,
C and D Indebtedness in accordance with the
provisions of this Deed;
(iv) if any Charge is created as security for the Class C
or D Indebtedness then, immediately on the creation
thereof, the benefit of such Charge shall be assigned
or transferred in favor of the holder of Class A
Indebtedness as security for the Class A Indebtedness
and any instrument or agreement evidencing such
Charge shall be deposited with the holder of Class A
indebtedness; and
(v) it shall require the Borrower to, and shall ensure
that the Borrower shall pay to the holder of Class A
Indebtedness or as the holder of Class A Indebtedness
may direct any amounts which, if paid to such holder
of Class B, C or D Indebtedness, would be subject to
the trust mentioned in paragraph (iii) above.
(b) Proceedings for Winding-Up of Borrower. In any proceedings for
the compulsory or voluntary winding-up, liquidation or
dissolution of the Borrower (or any proceedings analogous
thereto):
(i) the holder of Class A Indebtedness shall be entitled
to receive payment in full of the Class A
Indebtedness before the holders of Class B, C and D
Indebtedness shall be entitled to receive any payment
on account of the Class B, C or D Indebtedness or any
part thereof; and
(ii) the holders of Class B, C and D Indebtedness agree
that they will prove for the full amount of their
claims in respect of their respective Class B, C
and D Indebtedness and that in accordance with the
trust mentioned in Clause 2.01(a)(iii), any amounts
payable to the holders of Class B, C and D
Indebtedness in respect of the Class B, C and D
Indebtedness shall be applied in payment or
satisfaction of the Class A Indebtedness until
the whole of the Class A Indebtedness shall have
been certified by the holder of Class A Indebtedness
as having been discharged and the remaining balance
(if any) may be applied towards payment of the
Class B, C and D Indebtedness in accordance with
the provisions of this Deed.
(c) Subordinated Loan Agreements. Each of the holders of Class B,
C and D Indebtedness agree that:
(i) each and every Subordinated Loan Agreement entered
into by it shall be subject in every respect to the
terms of this Deed;
(ii) insofar as the terms of any Subordinated Loan
Agreement entered into by it or any transaction in
connection therewith are or may be inconsistent with
the terms of this Deed, the terms contained herein
shall prevail;
(iii) in respect of any Subordinated Loan Agreement
proposed to be entered into by it after the date
hereof, the prior written approval of the terms
thereof shall first be obtained from the holder of
Class A Indebtedness;
(iv) no amendment shall be made to any Subordinated Loan
Agreement entered into by it except in writing and
with the prior written approval of the terms thereof
by the holder of Class A Indebtedness, such approval
not to be unreasonably withheld;
(v) immediately after the execution of any Subordinated
Loan Agreement entered into by it, or any agreement
for the amendment of any Subordinated Loan Agreement
entered into by it, copies thereof shall be delivered
to the holder of Class Indebtedness as evidence
thereof; and
(vi) no prepayment of principal may be made by the
Borrower to the holders of Class C or D Indebtedness
(or payment in respect thereof accepted by the
holders of Class C or D Indebtedness) under any
Subordinated Loan Agreement entered into by the
holders of Class C or D Indebtedness.
(d) Application. All monies and other property received by the
holder of Class A Indebtedness in respect of the Class B, C or
D Indebtedness may be applied in or towards satisfaction of
the Class A Indebtedness due and owing in such manner as the
holder of Class A Indebtedness may decide, provided that:
(i) any excess after the Class A Indebtedness has been
paid in full shall be paid or delivered to the holder
of Class B Indebtedness and may be applied in or
towards satisfaction of the Class B Indebtedness due
and owing in such manner as the holder of Class B
Indebtedness may decide;
(ii) any excess after the Class B Indebtedness has been
paid in full shall be paid or delivered to the
holders of Class C Indebtedness and may be applied in
or towards satisfaction of the Class C Indebtedness
due and owing in such manner as the holders of Class
C Indebtedness may decide; and
(iii) any excess after the Class C Indebtedness has been
paid in full shall be paid or delivered to the
holders of Class D Indebtedness and may be applied in
or towards satisfaction of the Class D Indebtedness
due and owing in such manner as the holders of Class
D Indebtedness may decide.
(e) Directions and Authorizations. Each holder of Class B, C and D
Indebtedness hereby irrevocably:
(i) directs the Borrower to pay to the holder of Class A
Indebtedness (or as the holder of Class A
Indebtedness may direct) any amounts which, if paid
to such holder of Class B, C or D Indebtedness would
be subject to the trust mentioned in Clause
2.01(a)(iii); and
(ii) authorizes the holder of Class A Indebtedness, in
the event of a compulsory or voluntary winding up,
liquidation or dissolution of the Borrower (or any
proceedings analogous thereto) to ask, demand, sue
or prove for, and take and receive, in the name of
such holder of Class B, C or D Indebtedness or
otherwise, all amounts payable to such holder of
Class B, C or D Indebtedness on account of any Class
B, C or D Indebtedness owing by the Borrower, and
each of the holders of Class B, C and D Indebtedness
further covenants that in such event at the request
of the holder of Class A Indebtedness, it will take
all such action and execute all such documents as
the holder of Class A Indebtedness may reasonably
require in order to enable the holder of Class A
Indebtedness to recover such Class B, C or D
Indebtedness or any part thereof.
2.02 Class B Indebtedness.
(a) Subordination. In consideration of the holder of Class B
Indebtedness agreeing to make the AES Loan available to the
Borrower upon the terms and conditions of the AES Loan
Agreement and as a continuing security for the due and
punctual payment of the Class B Indebtedness and the due and
punctual performance and observance by the Borrower of all
other obligations of the Borrower contained in the AES Loan
Agreement or any Subordinated Security Document or any other
security document related thereto to which it is a party, each
of the holders of Class C and D Indebtedness agrees that
throughout the continuance of this Deed and so long as the
Class B Indebtedness or any part thereof remains owing:
(i) except as provided in Clause 3, the Class C and D
Indebtedness, as applicable, owing to it:
(A) is, and shall remain, subordinated and the
payment thereof deferred to all and any
rights, claims and actions which the holder
of Class B Indebtedness may now or hereafter
have against the Borrower in respect of the
Class B Indebtedness;
(B) shall not be repaid or repayable, in whole
or in part, except with the prior written
consent of the holder of Class B
Indebtedness in the event of the winding-up,
liquidation or dissolution of the Borrower
(or any proceedings analogous thereto);
(C) may accrue interest, but such interest shall
not be payable;
(D) is and shall remain unsecured by any Charge
over the whole or any part of the assets of
the Borrower; and
(E) is not, and shall not become capable of
being, subject to any right of set-off
or counterclaim;
(ii) except as provided in Clause 3, it shall not claim,
request, demand, sue for, take or receive (whether by
set-off or in any other manner and whether from the
Borrower or any other person) any money or other
property in respect of the Class C or D Indebtedness
or any part thereof;
(iii) if any monies (including the proceeds of any set-off
or counterclaim) or other property are received
directly or indirectly in respect of any Class C or
D Indebtedness by or on behalf of it in breach of
any of the provisions of this Deed, it will hold the
same upon trust to be applied first in or towards
payment of Class B Indebtedness and second, as to
any balance remaining after irrevocable and
unconditional payment and discharge in full of the
Class B Indebtedness, in or towards payment of the
Class C and D Indebtedness in accordance with the
provisions of this Deed;
(iv) if any Charge is created as security for the Class C
or D Indebtedness then, immediately on the creation
thereof, the benefit of such Charge shall be assigned
or transferred in favor of the holder of Class B
Indebtedness as security for the Class B Indebtedness
and any instrument or agreement evidencing such
Charge shall be deposited with the holder of Class B
indebtedness; and
(v) it shall require the Borrower to, and shall ensure
that the Borrower shall pay to the holder of Class B
Indebtedness or as the holder of Class B Indebtedness
may direct any amounts which, if paid to such holder
of Class C or D Indebtedness, would be subject to the
trust mentioned in paragraph (iii) above.
(b) Proceedings for Winding-Up of Borrower. In any proceedings for
the compulsory or voluntary winding-up, liquidation or
dissolution of the Borrower (or any proceedings analogous
thereto):
(i) the holder of Class B Indebtedness shall be entitled
to receive payment in full of the Class B
Indebtedness before the holders of Class C and D
Indebtedness shall be entitled to receive any payment
on account of the Class C or D Indebtedness or any
part thereof; and
(ii) the holders of Class C and D Indebtedness agree that
they will prove for the full amount of their claims
in respect of their respective Class C and D
Indebtedness and that in accordance with the trust
mentioned in Clause 2.02(a)(iii), any amounts
payable to the holders of Class C and D Indebtedness
in respect of the Class C and D Indebtedness shall
be applied in payment or satisfaction of the Class B
Indebtedness until the whole of the Class B
Indebtedness shall have been certified by the holder
of Class B Indebtedness as having been discharged
and the remaining balance (if any) may be applied
towards payment of the Class C and D Indebtedness in
accordance with the provisions of this Deed.
(c) Subordinated Loan Agreements. Each of the holders of Class C
and D Indebtedness agrees that:
(i) each and every Subordinated Loan Agreement
entered into by it shall be subject in
every respect to the terms of this Deed;
(ii) insofar as the terms of any Subordinated Loan
Agreement entered into by it or any transaction in
connection therewith are or may be inconsistent with
the terms of this Deed, the terms contained herein
shall prevail;
(iii) in respect of any Subordinated Loan Agreement
proposed to be entered into by it after the date
hereof, the prior written approval of the terms
thereof shall first be obtained from the holder of
Class B Indebtedness;
(iv) no amendment shall be made to any Subordinated Loan
Agreement entered into by it except in writing and
with the prior written approval of the terms thereof
by the holder of Class B Indebtedness, such approval
not to be unreasonably withheld;
(v) immediately after the execution of any Subordinated
Loan Agreement entered into by it, or any agreement
for the amendment of any Subordinated Loan Agreement
entered into by it, copies thereof shall be delivered
to the holder of Class B Indebtedness as evidence
thereof; and
(vi) no prepayment of principal may be made by the
Borrower to the holders of Class C or D Indebtedness
(or payment in respect thereof accepted by the
holders of Class C or D Indebtedness) under any
Subordinated Loan Agreement entered into by it.
(d) Application. All monies and other property received by the
holder of Class B Indebtedness in respect of the Class C or D
Indebtedness may be applied in or towards satisfaction of the
Class B Indebtedness due and owing in such manner as the
holder of Class B Indebtedness may decide, provided that:
(i) any excess after the Class B Indebtedness has been
paid in full shall be paid or delivered to the
holders of Class C Indebtedness and may be applied in
or towards satisfaction of the Class C Indebtedness
due and owing in such manner as the holders of Class
C Indebtedness may decide; and
(ii) any excess after the Class C Indebtedness has been
paid in full shall be paid or delivered to the
holders of Class D Indebtedness and may be applied in
or towards satisfaction of the Class D Indebtedness
due and owing in such manner as the holders of Class
D Indebtedness may decide.
(e) Directions and Authorizations. Each holder of Class C and D
Indebtedness hereby irrevocably:
(i) directs the Borrower to pay to the holder of Class B
Indebtedness (or as the holder of Class B
Indebtedness may direct) any amounts which, if paid
to such holder of Class C or D Indebtedness would be
subject to the trust mentioned in Clause
2.02(a)(iii); and
(ii) authorizes the holder of Class B Indebtedness, in
the event of a compulsory or voluntary winding up,
liquidation or dissolution of the Borrower (or any
proceedings analogous thereto) to ask, demand, sue
or prove for, and take and receive, in the name of
such holder of Class C or D Indebtedness or
otherwise, all amounts payable to such holder of
Class C or D Indebtedness on account of any Class C
or D Indebtedness owing by the Borrower, and each of
the holders of Class C and D Indebtedness further
covenants that in such event at the request of the
holder of Class B Indebtedness, it will take all
such action and execute all such documents as the
holder of Class B Indebtedness may reasonably
require in order to enable the holder of Class B
Indebtedness to recover such Class C or D
Indebtedness or any part thereof.
2.03 Class C Indebtedness.
(a) Subordination. In consideration of the holders of Class C
Indebtedness agreeing to make their respective Committed
Junior Subordinated Loans available to the Borrower upon the
terms and conditions of the Committed Junior Subordinated Loan
Agreements and as a continuing security for the due and
punctual payment of the Class C Indebtedness and the due and
punctual performance and observance by the Borrower of all
other obligations of the Borrower contained in the Committed
Junior Subordinated Loan Agreements, the holders of Class D
Indebtedness agree that throughout the continuance of this
Deed and so long as the Class C Indebtedness or any part
thereof remains owing:
(i) except as provided in Clause 3, the Class D Indebtedness owing
to it:
(A) is, and shall remain, subordinated and the
payment thereof deferred to all and any
rights, claims and actions which the holders
of Class C Indebtedness may now or hereafter
have against the Borrower in respect of the
Class C Indebtedness;
(B) shall not be repaid or repayable, in whole
or in part, except with the prior written
consent of the holders of Class C
Indebtedness in the event of the winding-up,
liquidation or dissolution of the Borrower
(or any proceedings analogous thereto);
(C) may accrue interest, but such interest shall
not be payable;
(D) is and shall remain unsecured by any
Charge over the whole or any part of the
assets of the Borrower; and
(E) is not, and shall not become capable of
being, subject to any right of set-off
or counterclaim;
(ii) except as provided in Clause 3, it shall not claim,
request, demand, sue for, take or receive (whether by
set-off or in any other manner and whether from the
Borrower or any other person) any money or other
property in respect of the Class D Indebtedness or
any part thereof;
(iii) if any monies (including the proceeds of any set-off
or counterclaim) or other property are received
directly or indirectly in respect of any Class D
Indebtedness by or on behalf of it in breach of any
of the provisions of this Deed, it will hold the same
upon trust to be applied first in or towards payment
of Class C Indebtedness and second, as to any balance
remaining after irrevocable and unconditional payment
and discharge in full of the Class C Indebtedness, in
or towards payment of the Class D Indebtedness in
accordance with the provisions of this Deed;
(iv) if any Charge is created as security for the Class D
Indebtedness then, immediately on the creation
thereof, the benefit of such Charge shall be assigned
or transferred in favor of the holder of Class C
Indebtedness as security for the Class C Indebtedness
and any instrument or agreement evidencing such
Charge shall be deposited with the holder of Class C
indebtedness; and
(v) it shall require the Borrower to, and shall ensure
that the Borrower shall pay to the holder of Class C
Indebtedness or as the holder of Class C Indebtedness
may direct any amounts which, if paid to such holder
of Class D Indebtedness, would be subject to the
trust mentioned in paragraph (iii) above.
(b) Proceedings for Winding-Up of Borrower. In any proceedings for
the compulsory or voluntary winding-up, liquidation or
dissolution of the Borrower (or any proceedings analogous
thereto):
(i) the holders of Class C Indebtedness shall be entitled
to receive payment in full of the Class C
Indebtedness before the holders of Class D
Indebtedness shall be entitled to receive any payment
on account of the Class D Indebtedness or any part
thereof; and
(ii) the holders of Class D Indebtedness agree that they
will prove for the full amount of their claims in
respect of their Class D Indebtedness and that in
accordance with the trust mentioned in Clause
2.03(a)(iii), any amounts payable to the holders of
Class D Indebtedness in respect of the Class D
Indebtedness shall be applied in payment or
satisfaction of the Class C Indebtedness until the
whole of the Class C Indebtedness shall have been
certified by the holder of Class C Indebtedness as
having been discharged and the remaining balance (if
any) may be applied towards payment of the Class D
Indebtedness in accordance with the provisions of
this Deed.
(c) Subordinated Loan Agreements. Each of the holders of Class D
Indebtedness agrees that:
(i) each and every Subordinated Loan Agreement entered
into by it in respect of Class D Indebtedness shall
be subject in every respect to the terms of this
Deed;
(ii) insofar as the terms of any Subordinated Loan
Agreement entered into by it in respect of Class D
Indebtedness or any transaction in connection
therewith are or may be inconsistent with the terms
of this Deed, the terms contained herein shall
prevail;
(iii) in respect of any Subordinated Loan Agreement
proposed to be entered into by it in respect of Class
D Indebtedness after the date hereof, the prior
written approval of the terms thereof shall first be
obtained from the holders of Class C Indebtedness;
(iv) no amendment shall be made to any Subordinated Loan
Agreement entered into by it in respect of Class D
Indebtedness except in writing and with the prior
written approval of the terms thereof by the holders
of Class C Indebtedness, such approval not to be
unreasonably withheld;
(v) immediately after the execution of any Subordinated
Loan Agreement entered into by it in respect of Class
D Indebtedness, or any agreement for the amendment of
any Subordinated Loan Agreement entered into by it in
respect of Class D Indebtedness, copies thereof shall
be delivered to the holders of Class C Indebtedness
as evidence thereof; and
(vi) no prepayment of principal may be made by the
Borrower to the holders of Class D Indebtedness (or
payment in respect thereof accepted by the holders of
Class D Indebtedness) under any Subordinated Loan
Agreement entered into by it in respect of Class D
Indebtedness.
(d) Application. All monies and other property received by the
holder of Class C Indebtedness in respect of the Class D
Indebtedness may be applied by the holders of Class C
Indebtedness in or towards satisfaction of the Class C
Indebtedness due and owing in such manner as the holders of
Class C Indebtedness may decide, provided that any excess
after the Class C Indebtedness has been paid in full shall be
paid or delivered to the holders of Class D Indebtedness and
may be applied in or towards satisfaction of the Class D
Indebtedness due and owing in such manner as the holders of
Class D Indebtedness may decide.
(e) Directions and Authorizations. Each holder of Class D
Indebtedness hereby irrevocably:
(i) directs the Borrower to pay to the holders of Class C
Indebtedness (or as the holders of Class C
Indebtedness may direct) any amounts which, if paid
to such holders of Class C Indebtedness would be
subject to the trust mentioned in Clause
2.03(a)(iii); and
(ii) authorizes the holders of Class C Indebtedness, in
the event of a compulsory or voluntary winding up,
liquidation or dissolution of the Borrower (or any
proceedings analogous thereto) to ask, demand, sue
or prove for, and take and receive, in the name of
such holder of Class D Indebtedness or otherwise,
all amounts payable to such holder of Class D
Indebtedness on account of any Class D Indebtedness
owing by the Borrower, and each of the holders of
Class D Indebtedness further covenants that in such
event at the request of the holder of Class C
Indebtedness, it will take all such action and
execute all such documents as the holders of Class C
Indebtedness may reasonably require in order to
enable the holders of Class C Indebtedness to
recover such Class D Indebtedness or any part
thereof.
3. PERMITTED PAYMENTS
Notwithstanding the terms of Clause 2, the Borrower shall be entitled
to make scheduled payments of principal and interest to each holder of
Class B, C and D Indebtedness under and in accordance with the terms of
their respective Subordinated Loan Agreements, and clause 14 of the
Senior Loan Agreement until such time as the Class A Indebtedness has
been paid in full, and clause 14 of the AES Loan Agreement thereafter,
provided that, with respect to each class, at the relevant time no
Event of Default or prospective Event of Default has occurred and is
continuing.
4. FURTHER ACKNOWLEDGMENTS
4.01 Relationship between the Senior and Junior Subordination Agreements.
Each of the holders of Class A, B, C and D Indebtedness acknowledges
that the Class A, B, C and D Indebtedness are subordinated to any and
all amounts owed by the Borrower to the Senior Financing Parties under
the Senior Loan Agreement and the Security Documents (as defined in the
Senior Loan Agreement) (the 'Senior Bank Debt') in accordance with the
terms of the Senior Subordination Agreement; that the Class B, C and D
Indebtedness is subordinated to the Class A Indebtedness, the Class C
and D Indebtedness is subordinated to the Class B Indebtedness and the
Class D Indebtedness is subordinated to the Class C Indebtedness, all
in accordance with the terms of this Deed; and that, in the event of
any inconsistencies between the provisions of the Senior Subordination
Agreement and this Deed, the provisions of the Senior Subordination
Agreement shall govern as between the Senior Financing Parties of the
one part and the holders of the Class A, B, C and D Indebtedness of the
other part, and the provisions of this Deed shall govern as between or
among the parties signatory hereto.
4.02 Indebtedness in Same Class. Each of the holders of Class A, B, C and D
Indebtedness acknowledges that all indebtedness in the same class of
indebtedness shall rank pari passu in right of payment and any payment
to any class of indebtedness made hereunder shall be made pro rata to
all holders of the indebtedness of such class.
4.03 Purpose of Subordination. Each of the holders of Class A, B, C and D
Indebtedness acknowledges that the provisions of this Deed are and are
intended solely for the purpose of defining the relative rights of such
holders of indebtedness of the Borrower. Nothing contained in this Deed
shall or is intended to impair, as between the Borrower and any holder
of indebtedness subject to this Deed, the obligation of the Borrower,
which is unconditional and absolute, to pay to such holder any amounts
in respect of its indebtedness as and when the same shall become due in
accordance with its terms.
4.04 AES Loan Agreement. Each of the holders of Class A, C and D
Indebtedness acknowledges that AES may, without the consent of any such
holders, (a) sub-participate all or any part of its interest under the
AES Loan Agreement to any person and (ii) assign all or any of its
rights under the AES Loan Agreement to any person, provided that each
such assignee shall accede to this Deed as a holder of Class B
Indebtedness.
5. ACKNOWLEDGMENT BY BORROWER
The Borrower acknowledges the subordination of the Class B, C and D
Indebtedness and warrants and undertakes throughout the continuance of
this Deed and so long as the Class A, B, C or D Indebtedness or any
part thereof remains owing that:
(a) it will make all payments due in respect of the Class B, C and
D Indebtedness in accordance with the provisions of the Senior
Subordination Agreement and this Deed and it will comply with
all the other provisions of the Senior Subordination Agreement
and this Deed and it will not do, take part in or take the
benefit of anything which would or may breach the provisions
of the Senior Subordination Agreement or this Deed;
(b) it will promptly notify the Senior Creditors prior to
incurring any Class B, C or D Indebtedness; and
(c) it has no notice of any prior disposal of or Charge over the
Class B, C or D Indebtedness or any part thereof to any other
person.
6. CONTINUING SECURITY
This Deed shall be a continuing security and shall remain in full force
and effect until the Class A, B and C Indebtedness have been paid in
full, notwithstanding the insolvency, bankruptcy or liquidation or any
incapacity or change in the constitution or status of any of the
holders of Class B, C or D Indebtedness, the Borrower or any other
person or any intermediate settlement of account or other matter
whatsoever. This Deed is in addition to, and independent of, any
Charge, guarantee or other security or right or remedy now or at any
time hereafter held by or available to the holders of Class A and B
Indebtedness.
7. REPRESENTATIONS AND WARRANTIES
7.01 Representations and Warranties. Each of the Junior Creditors
represents and warrants severally and for itself to the Senior
Creditors that:
(a) it has full power, authority and legal right to enter into and
engage in the transactions contemplated by this Deed and has
taken or obtained all necessary corporate and other action to
authorize the execution and performance of this Deed;
(b) this Deed constitutes its legal, valid and binding obligation
enforceable in accordance with its terms;
(c) neither the execution of this Deed nor the performance by it
of any of its obligations or the exercise of any of its rights
hereunder will conflict with or result in a breach of any law,
regulation, judgment, order, authorization, agreement or
obligation applicable to it or cause any limitation placed on
it to be exceeded or result in the creation of or oblige it to
create a Charge in respect of the Class C or D Indebtedness;
(d) all authorizations required from any governmental or other
authority or from any of its shareholders or creditors for or
in connection with the execution, validity and performance of
this Deed have been obtained and are in full force and effect;
(e) it is not necessary in order to ensure the validity,
enforceability or admissibility in evidence in proceedings of
this Deed in its country of incorporation or any other
relevant jurisdiction that it or any other document be filed
or registered with any authority in its country of
incorporation or elsewhere or that any tax be paid in respect
thereof except as set out in appendix 2 of the AES Loan
Agreement;
(f) it is generally subject to civil and commercial law and to
legal proceedings and neither it nor any of its assets or
revenues are entitled to any immunity or privilege (sovereign
or otherwise) from any set-off, judgment, execution,
attachment or other legal process;
(g) its Subordinated Loan Agreement in existence at the date
hereof is valid and in full force and effect, the provisions
thereof have been fully complied with, the Borrower is not in
default in respect of any provision thereof and it has
provided true and complete copies thereof to the Senior
Creditors;
(h) except as provided in Clause 4.04, it is the sole beneficial
owner of the Subordinated Indebtedness owing to it; and
(i) no Charge exists over all or any part of its Subordinated
Indebtedness (except as created under or pursuant to this
Deed).
7.02 Continuing Representation and Warranty. Each of the Junior Creditors
also represents and warrants to and undertakes with the Senior
Creditors severally and for itself that the foregoing representations
and warranties set out in Clause 7.01 with respect to it will be true
and accurate throughout the continuance of this Deed with reference to
the facts and circumstances existing from time to time, provided that
each representation and warranty in Clause 7.01(b) shall (where
applicable) be subject (as to matters of law only) to Schedule 3 of the
AES Loan Agreement.
7.03 Qualification of Representations and Warranties. Each representation
and warranty in Clauses 7.01(a) through (d) inclusive shall (where
applicable) be subject (as to matters of law only) to the
qualifications specified in Schedule 3 of the AES Loan Agreement.
8. UNDERTAKINGS
8.01 Affirmative undertakings. Each of the holders of Class C and D
Indebtedness severally and for itself undertakes and agrees with the
holder of Class B Indebtedness throughout the continuance of this Deed
and so long as the Class B Indebtedness or any part thereof remains
owing that it will, unless the holder of Class B Indebtedness otherwise
agrees in writing:
(a) supply to the holder of Class B Indebtedness:
(i) as soon as they are available, but in any event
within one hundred and eighty (180) days after the
end of each of its financial years, copies of its
financial statements in respect of such financial
year (including a profit and loss account and balance
sheet) audited and certified by an independent public
accountant acceptable to the holder of Class B
Indebtedness;
(ii) as soon as they are available, but in any event
within one hundred and twenty (120) days after the
end of each half of each of its financial years,
copies of its unaudited financial statements
(including a profit and loss account and balance
sheet) prepared on a basis consistent with its
audited financial statements together with a
certificate signed by its principal financial
officer to the effect that such financial statements
are true in all material respects and present fairly
its financial position as at the end of, and the
results of its operations for, such half-year
period; and
(iii) promptly on request, such additional financial or
other information relating to it as the holder of
Class B Indebtedness may from time to time reasonably
request;
(b) keep proper records and books of account in respect of its
business and permit the holder of Class B Indebtedness and/or
any professional consultants appointed by the holder of Class
B Indebtedness at all reasonable times to inspect and examine
its records and books of account;
(c) promptly inform the holder of Class B Indebtedness of the
occurrence of any Event of Default or prospective Event of
Default;
(d) maintain its corporate existence and conduct its business in a
proper and efficient manner and in compliance with all laws,
regulations, authorizations, agreements and obligations
applicable to it and pay all taxes imposed on it when due;
(e) punctually pay all sums due from it and otherwise comply with
its obligations under this Deed;
(f) do or permit to be done every act or thing which the holder of
Class B Indebtedness may from time to time reasonably require
for the purpose of enforcing the rights of the holder of Class
B Indebtedness hereunder;
(g) not do or knowingly cause or permit to be done anything which
may in any way depreciate, jeopardize or otherwise prejudice
the value of the security of the holder of Class B
Indebtedness hereunder;
(h) not create or attempt or agree to create or permit to arise or
exist any Charge over all or any part of its Subordinated
Indebtedness or any interest therein or otherwise assign, deal
with or dispose of all or any part of its Subordinated
Indebtedness (except under or pursuant to this Deed);
(i) at all times remain the beneficial owners of its Subordinated
Indebtedness;
(j) not vary the liability of the Borrower in relation to its
Subordinated Indebtedness;
(k) upon the request of the holder of Class B Indebtedness, supply
to the holder of Class B Indebtedness such information
regarding the amount and terms of the Junior Indebtedness as
the holder of Class B Indebtedness may require;
(l) subject to the provisions of this Deed, duly observe and
perform all its obligations under any Subordinated Loan
Agreement to which it is a party;
(m) ensure that each date for repayment of principal and payment
of interest under any Subordinated Loan Agreement to which it
is a party shall be an Interest Payment Date; and
(n) promptly inform the holder of Class B Indebtedness of any
breach of this Deed known to it.
9. BORROWER'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
9.01 Representations and Warranties. The Borrower represents and warrants to
the holder of Class A, B, C and D Indebtedness in the terms of Clause
7.01(g) and also represents, warrants and undertakes to the Senior
Creditors that such representation and warranty will be true and
accurate from time to time throughout the continuance of this Deed with
reference to the facts and circumstances existing from time to time.
9.02 Undertakings. The Borrower undertakes and agrees with the Senior
Creditors in the terms of Clause 8.01(f), (g), (n) and (o).
10. CLAIMS BY JUNIOR CREDITORS
Each Junior Creditor severally represents to and undertakes with the
Senior Creditors that it has not taken and will not take any security
in respect of obligations owing to it under this Deed whether from the
Borrower or any other person. So long as any sum remains owing by the
Borrower to the Senior Creditors, no Junior Creditor shall exercise any
right of subrogation, contribution or any other rights of a surety or
enforce any security or other right or claim against the Borrower
(whether in respect of its liability under this Deed or otherwise) or
any other person who has guaranteed or given any security in respect of
the Senior Indebtedness or, subject to the provisions of this Deed,
claim in the insolvency or liquidation of the Borrower or any such
other person in competition with the Senior Creditors. If any Junior
Creditor receives any payment or benefit in breach of this Clause 10,
it shall hold the same upon trust for the Senior Creditors as a
continuing security for the Senior Indebtedness.
11. TAXES AND OTHER DEDUCTIONS
All sums payable by the Junior Creditors under this Deed shall be paid
in full without set-off or counterclaim or any restriction or condition
and free and clear of any tax (other than an Excluded Tax) or other
deductions or withholdings of any nature. If any Junior Creditor or any
other person are required by any law or regulation to make any
deduction or withholding (on account of tax (other than an Excluded
Tax) or otherwise) from any payment for the account of the Senior
Creditors, the relevant Junior Creditor shall, together with such
payment, pay such additional amount as will ensure that the Senior
Creditors receive (free and clear of any tax (other than an Excluded
Tax) or other deductions or withholdings) the full amount which they
would have received if no such deduction or withholding had been
required. The Junior Creditors shall promptly forward to the Senior
Creditors copies of official receipts or other evidence showing that
the full amount of any such deduction or withholding has been paid over
to the relevant taxation or other authority.
12. COSTS, CHARGES AND EXPENSES
Each of the holders of Class C Indebtedness and the Borrower shall from
time to time forthwith on demand pay to or reimburse the holders of
Class B Indebtedness for:
(a) all reasonable costs, charges and expenses (including legal
and other fees on a full indemnity basis and out of pocket
expenses) reasonably incurred by the holders of Class B
Indebtedness in connection with the preparation, execution and
registration of any amendment to or extension of, or the
giving of any consent or waiver in connection with this Deed;
and
(b) all reasonable costs, charges and expenses (including legal
and other fees on a full indemnity basis and out of pocket
expenses) reasonably incurred by the holders of Class B
Indebtedness in exercising any of their rights or powers
hereunder or in suing for or seeking to recover any sums due
hereunder or otherwise preserving or enforcing their rights
hereunder or in defending any claims brought against them in
respect of this Deed or in releasing or re-assigning this Deed
upon payment of all monies hereby secured and until payment of
the same in full, all such costs, charges and expenses shall
be secured by this Deed.
The liability of the holders of Class C Indebtedness in respect of
amounts due under this Clause 12 shall be borne severally by them,
provided that, in the event that any amount becomes payable to the
holders of Class B Indebtedness under this Clause 12 solely by virtue
of the action or inaction of certain holders of Class C Indebtedness,
those relevant holders of Class C Indebtedness shall bear sole
liability and responsibility in respect of such amount so payable. To
the extent practicable, the Senior Creditors shall consult the Junior
Creditors and the Borrower before incurring any major expenditure.
13. INDEMNITY
13.01 Junior Creditors' General Indemnity. Each Junior Creditor shall
indemnify the Senior Creditors against all losses, liabilities,
damages, costs and expenses incurred by them in the execution or
performance of the terms and conditions hereof and against all actions,
proceedings, claims, demands, costs, charges and expenses which may be
incurred, sustained or arise in respect of the non-performance or
non-observance of any of the undertakings and agreements on the part of
that Junior Creditor herein contained or in respect of any matter or
thing done or omitted by it relating in any way whatsoever to the
Subordinated Indebtedness of that Junior Creditor.
13.02 Borrower's General Indemnity. The Borrower shall indemnify the Senior
Creditors against all losses, liabilities, damages, costs and expenses
incurred by them in the execution or performance of the terms and
conditions hereof and against all actions, proceedings, claims,
demands, costs, charges and expenses which may be incurred, sustained
or arise in respect of the non-performance or non-observance of any of
the undertakings and agreements on the part of the Junior Creditors and
the Borrower herein contained or in respect of any matter or thing done
or omitted relating in any way whatsoever to the Subordinated
Indebtedness.
13.03 Payment and Security. The Senior Creditors may retain and pay out of
any money in the Senior Creditors' hands all sums necessary to effect
the indemnity contained in this Clause 13 and all sums payable by the
Junior Creditors and the Borrower under this Clause 13 shall form part
of the monies hereby secured.
14. FURTHER ASSURANCE
14.01 Further Assurance. Each of the Junior Creditors and the Borrower shall
at any time and from time to time (whether before or after the security
hereby created shall have become enforceable) execute such further
legal or other mortgages, charges or assignments and do all such
transfers, assurances, acts and things as the Senior Creditors may
require over or in respect of the Subordinated Indebtedness to secure
all monies, obligations and liabilities hereby covenanted to be paid or
hereby secured or for the purposes of perfecting and completing any
assignment of the Senior Creditor's rights, benefits or obligations
hereunder and the Junior Creditors and the Borrower shall also give all
notices, orders and directions which the Senior Creditors may require.
14.02 Enforcement of Senior Creditors' Rights. Each of the Junior Creditors
and the Borrower will do or permit to be done everything which the
Senior Creditors may from time to time require to be done for the
purpose of enforcing the Senior Creditors' rights hereunder and will
allow the names of the Junior Creditors and the Borrower (as the case
may be) to be used as and when required by the Senior Creditors for
that purpose.
15. SUSPENSE ACCOUNT
Any Senior Creditor may place and keep any monies received by virtue of
this Deed (whether before or after the insolvency, bankruptcy or
liquidation of any of the Junior Creditors or the Borrower) to the
credit of a suspense account for so long as the Senior Creditor may
think fit in order to preserve the rights of such Senior Creditor to
sue or prove for the whole amount of its claims against the Junior
Creditors, the Borrower or any other person.
16. WAIVER AND SEVERABILITY
No failure or delay by any Senior Creditor in exercising any right,
power or remedy hereunder shall impair such right, power or remedy or
operate as a waiver thereof, nor shall any single or partial exercise
of the same preclude any further exercise thereof or the exercise of
any other right, power or remedy. The rights, powers and remedies
herein provided are cumulative and do not exclude any other rights,
powers and remedies provided by law. If at any time any provision of
this Deed is or becomes illegal, invalid or unenforceable in any
respect under the law of any jurisdiction, the legality, validity and
enforceability of such provision under the law of any other
jurisdiction, and of the remaining provisions of this Deed, shall not
be affected or impaired thereby.
17. MISCELLANEOUS
17.01 Continuing Obligations. The liabilities and obligations of the Junior
Creditors and the Borrower under this Deed shall remain in force
notwithstanding any act, omission, event or circumstance whatsoever,
until full, proper and valid payment of the Senior Indebtedness.
17.02 Protective Clauses. Without limiting Clause 17.01, neither the
liability of the Junior Creditors or the Borrower nor the validity or
enforceability of this Deed shall be prejudiced, affected or discharged
by:
(a) the granting of any time or indulgence to the Borrower or any
other person;
(b) any variation or modification of any document evidencing or
securing the Senior Indebtedness;
(c) the invalidity or unenforceability of any obligation or
liability of the Borrower under any document evidencing or
securing the Senior Indebtedness to which it is a party;
(d) any invalidity or irregularity in the execution of any
document evidencing or securing the Senior Indebtedness;
(e) any deficiency in the powers of the Borrower to enter into or
perform any of its obligations under any document evidencing
or securing the Senior Indebtedness to which it is party or
any irregularity in the exercise thereof or any lack of
authority by any person purporting to act on behalf of the
Borrower;
(f) the insolvency, bankruptcy or liquidation or any incapacity,
disability or limitation or any change in the constitution or
status of the Borrower or any of the Junior Creditors;
(g) any document evidencing security, Charge, guarantee or other
security or right or remedy being or becoming held by or
available to any Senior Creditor or by any of the same being
or becoming wholly or partly void, voidable, unenforceable or
impaired, or by any Senior Creditor at any time releasing,
refraining from enforcing, varying or in any other way dealing
with any of the same or any power, right or remedy such Senior
Creditor may now or hereafter have from or against the
Borrower or any other person;
(h) any waiver, exercise, omission to exercise, compromise,
renewal or release of any rights against the Borrower or any
other person or any compromise, arrangement or settlement with
any of the same; and
(i) any act, omission, event or circumstance which would or may,
but for this provision, operate to prejudice, affect or
discharge this Deed or the liability of the Junior Creditors
or the Borrower hereunder.
17.03 Binding Nature of Deed. The Borrower and each of the Junior Creditors
agrees to be bound by this Deed notwithstanding that any other person
who was intended to sign or be bound by this Deed fails, for any
reason, so to sign or be bound or that this Deed is for any reason
invalid or unenforceable against such person.
17.04 Unrestricted Right of Enforcement. This Deed may be enforced without
the Senior Creditors first having recourse to any other security or
rights or taking any other steps or proceedings against the Junior
Creditors, the Borrower or any other person or may be enforced for any
balance due after resorting to any one or more other means of obtaining
payment or discharge of the monies, obligations and liabilities hereby
secured.
17.05 Discharges and Releases. Notwithstanding any discharge, release or
settlement from time to time between or among any or all the Senior
Creditors and the Junior Creditors or the Borrower, if any security,
disposition or payment granted or made to any Senior Creditor in
respect of the Subordinated Indebtedness by any Junior Creditor, the
Borrower or any other person is avoided or set aside or ordered to be
surrendered, paid away, refunded or reduced by virtue of any provision,
law or enactment relating to bankruptcy, insolvency, liquidation,
winding-up, composition or arrangement for the time being in force or
for any other reason, each of the Senior Creditors shall be entitled
hereafter to enforce this Deed as if no such discharge, release or
settlement had occurred.
17.06 Amendment. Any amendment or waiver of any provision of this Deed and
any waiver of any default under this Deed shall only be effective if
made in writing and signed by or on behalf of the party against whom
enforcement of the amendment or waiver is asserted.
18. ASSIGNMENT
18.01 The Holders of Class A, C and D Indebtedness and the Borrower. None of
the holders of Class A, C and D Indebtedness and the Borrower shall
assign any of their rights hereunder.
18.02 The Holder of Class B Indebtedness. The holder of Class B Indebtedness
may assign or grant participations in all or any part of its rights
under this Deed and make disclosures in accordance with the provisions
of clause 19 of the AES Loan Agreement as if references therein to the
Borrower were references to the holders of Class A, C or D Indebtedness
or the Borrower (as the case may be) and any assignee of or participant
in Class B Indebtedness may further so assign or grant participations
in all or any part of its rights under this Deed.
19. NOTICES
19.01 Delivery. Each notice, demand or other communication to be given or
made under this Deed shall be in writing and delivered or sent to the
relevant party at its address or telex number or fax number set out
below (or such other address or telex number or fax number as the
addressee has by five (5) days' prior written notice specified to the
other party):
To the Guarantor China Power International Holding Limited
and Sponsor: Suite 5306, Central Plaza
18 Harbour Road
Wanchai, Hong Kong
Fax Number: (852) 2802-3922
Attention: Zhao Xin Yan/
Wang Zi Chao
To the Junior AES China Holding Company (L) Limited
Lender and 9th Floor, Allied Capital Resources Building
Sponsor: 32-38 Ice House Street
Central, Hong Kong
Fax Number: (852) 2530-1673
Attention: Jeff Safford
Chief Financial Officer
To the Junior Anhui Liyuan Electric Power Limited
Subordinated No. 415 Wuhu Road
Lenders Hefei
and Sponsors: Anhui Province
People's Republic of China
Fax Number: (86-551) 363-7642
Attention: Long Wen Ming/
Susan Jie/
Chen Liang Bao
Wuhu Energy Development Company
Commercial Office Building
West Huangshan Road
Wuhu
Anhui Province
People's Republic of China
Fax Number: (86-553) 382-3224
Attention: Zhai Dao Ping
To the Borrower: Wuhu Shaoda Electric Power Development
Company Limited
Commercial Office Building
West Huangshan Road
Wuhu
Anhui Province
People's Republic of China
Fax Number: (86-553) 382-3224
Attention: Zhai Dao Ping
19.02 Deemed Delivery. Any notice, demand or other communication so addressed
to the relevant party shall be deemed to have been delivered (a) if
given or made by letter, when actually delivered to the relevant
address; (b) if given or made by telex, when dispatched with confirmed
answerback and (c) if given or made by fax, when dispatched.
20. GOVERNING LAW AND JURISDICTION
20.01 Law. This Deed and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws of
England.
20.02 Jurisdiction. Each of the Junior Creditors and the Borrower agrees that
any legal action or proceeding arising out of or relating to this Deed
may be brought in the courts of England and irrevocably submit to the
non-exclusive jurisdiction of such courts.
20.03 Process Agent. Each of the Junior Creditors and the Borrower
irrevocably appoints Rowe & Maw (Attention: Mr. Bernd Ratzke) of 20
Blackfriars Lane London EC4V 6HT, England as its agent to receive and
acknowledge on its behalf service of any writ, summons, order, judgment
or other notice of legal process in England. If for any reason the
agent named above (or its successor) no longer serves as agent of any
Junior Creditor or the Borrower for this purpose, the relevant Junior
Creditor or the Borrower (as the case may be) shall promptly appoint a
successor agent satisfactory to the Senior Creditors and notify the
Senior Creditors thereof, provided that until the Senior Creditors
receive such notification, they shall be entitled to treat the agent
named above (or its said successor) as the agent of such Junior
Creditor and/or the Borrower (as the case may be) for the purposes of
this Clause 20.03. Each of the Junior Creditors and the Borrower agrees
that any such legal process shall be sufficiently served on it if
delivered to such agent for service at its address for the time being
in England whether or not such agent gives notice thereof to such
Junior Creditor or the Borrower as applicable.
20.04 No Limitation on Right of Action. Nothing herein shall limit the right
of the Senior Creditors to commence any legal action against the Junior
Creditors or the Borrower and/or their property in any other
jurisdiction or to serve process in any manner permitted by law, and
the initiation of proceedings in any jurisdiction shall not preclude
the initiation of proceedings in any other jurisdiction whether
concurrently or not.
20.05 Waiver; Final Judgment Conclusive. Each of the Junior Creditors and the
Borrower irrevocably and unconditionally waives any objection which it
may now or hereafter have to the choice of England as the venue of any
legal action arising out of or relating to this Deed. Each of the
Junior Creditors and the Borrower also agrees that a final judgment
against it in any such legal action shall be final and conclusive and
may be enforced in any other jurisdiction, and that a certified or
otherwise duly authenticated copy of the judgment shall be conclusive
evidence of the fact and amount of its indebtedness.
20.06 Waiver of Immunity. Each of the Junior Creditors and the Borrower
irrevocably waives any immunity to which it or its property may at any
time be or become entitled, whether characterized as sovereign immunity
or otherwise, from any set-off or legal action in England or elsewhere,
including immunity from service of process, immunity from jurisdiction
of any court or tribunal, and immunity of any of its property from
attachment prior to judgment or from execution of a judgment.
IN WITNESS whereof each of the parties hereto have executed this Deed on the day
and year first above written.
THE GUARANTOR AND A SPONSOR
- ---------------------------
THE COMMON SEAL of )
CHINA POWER INTERNATIONAL )
HOLDING LIMITED )
was hereunto affixed )
in the presence of: )
THE JUNIOR LENDER AND A SPONSOR
- -------------------------------
THE COMMON SEAL of )
AES CHINA HOLDING )
COMPANY (L) LIMITED )
was hereunto affixed )
in the presence of: )
THE JUNIOR SUBORDINATED LENDERS AND SPONSORS
- --------------------------------------------
EXECUTED as, and DELIVERED as, a Deed )
by ANHUI LIYUAN ELECTRIC POWER )
DEVELOPMENT COMPANY LIMITED )
acting by its authorized signatory )
in the presence of: )
EXECUTED as, and DELIVERED as, a Deed )
by WUHU ENERGY DEVELOPMENT COMPANY )
acting by its authorized signatory )
in the presence of: )
THE BORROWER
- ------------
EXECUTED as, and DELIVERED as, a Deed )
by WUHU SHAODA ELECTRIC POWER )
DEVELOPMENT COMPANY LIMITED )
acting by its authorized signatory )
in the presence of: )
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Junior Subordination Agreement - China Power International Holding Ltd., Aes China Holding Co. Ltd., Anhui Liyuan Electric Power Development Co. Ltd., Wuhu Energy Development Co. and Wuhu Shaoda Electric Power Development Co. Ltd.
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