WUHU SHAODA ELECTRIC POWER DEVELOPMENT COMPANY LIMITED
as Borrower
and
AES CHINA HOLDINGS COMPANY (L) LIMITED
as Junior Lender
SUBORDINATED BORROWER CHARGE OVER ACCOUNTS
CHADBOURNE & PARKE LLP
AMERICAN ATTORNEYS AT LAW
SUITE 3704, PEREGRINE TOWER
LIPPO CENTRE, 89 QUEENSWAY
HONG KONG
CONTENTS
Number Clause Heading Page
- ------ -------------- ----
1. Interpretation..................................................1
2. Charge..........................................................2
3. Continuing Security.............................................3
4. Representations and Warranties..................................3
5. Undertakings....................................................3
6. Condition of Deposits...........................................4
7. Enforcement.....................................................4
8. Taxes and Other Deductions......................................5
9. Costs, Charges and Expenses.....................................5
10. Set-off.........................................................6
11. Indemnity.......................................................6
12. Further Assurance...............................................7
13. Power of Attorney...............................................7
14. Suspense Account................................................8
15. Waiver and Severability.........................................8
16. Miscellaneous...................................................8
17. Assignment.....................................................10
18. Notices........................................................10
19. Governing Law and Jurisdiction.................................10
20. Subordinated Security..........................................11
Schedule 1 Charged Accounts.......................................13
Schedule 2 Form of Notice and Acknowledgement.....................14
Execution Block
THIS DEED is made on the day of 1996
------------- -------------------------
BETWEEN:
(1) 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, with
its registered office at Commercial Office Building, West Huangshan
Road, Wuhu, Anhui Province, People's Republic of China (the
'Borrower'); and
(2) AES CHINA HOLDINGS COMPANY (L) LIMITED, a Labuan company of Lot A,
Level 3, Wisma Oceanic, Jalan OKK Awang, 87007, Federal Territory of
Labuan, Malaysia (the 'Junior Lender').
WHEREAS:
(A) By the AES Loan Agreement (as defined below), 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), upon the terms set out
therein.
(B) It is a condition precedent to the Junior Lender making the Facility
available to the Borrower that the Borrower enters 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) 'AES Loan Agreement' means the loan agreement dated -------
1996 and made between the Junior Lender and the Borrower;
(c) 'Bank' means Bank of China, Wuhu Branch at 233 Jiuhuashan
Road, Wuhu, China;
(d) the expression 'Charge' shall include any right of set-off;
(e) 'Charged Accounts' means the Borrower RMB Revenue Account,
the Borrower Dollar Retention Account and the Borrower
Special Dividends Account (as defined in the Senior Loan
Agreement), each held in the name of the Borrower with the
Bank and as more particularly
1
described in Schedule 1, and
all sums now or hereafter deposited in such accounts and all
additions to or renewals or replacements of all or any part
thereof (in whatever currency) and all interest or other
sums which may accrue from time to time thereon;
(f) 'Junior Secured Indebtedness' means all and any sums
(whether principal, interest, fees or otherwise) which are
or at any time may become payable by the Borrower under the
AES Loan Agreement or any Subordinated Security Document to
which it is a party and all other monies hereby secured.
1.02 Successors and Assigns. The expressions 'Borrower', 'Security Agent'
and 'Junior Lender' shall where the context permits include their
respective successors and permitted assigns and any persons deriving
title under them.
1.03 AES Loan Agreement. To the extent applicable and required by relevant
law, the terms and conditions of the AES Loan Agreement shall be
deemed to be incorporated into this Deed by reference and this Deed
shall be read and construed as if such terms and conditions had been
set out in full herein.
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 this Deed, the AES Loan Agreement, any other
Subordinated Security Document or any other 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 and the
Schedules are to clauses of and the schedules to this Deed. Clause
headings are inserted for reference only and shall be ignored in
construing this Deed.
2. CHARGE
2.01 Charge and Assignment. In consideration of the Facility being made
available by the Junior Lender to the Borrower upon the terms and
conditions of the AES Loan Agreement, the Borrower with full title
guarantee charges to the Junior Lender by way of third fixed charge
and grants a third-priority security interest to the Junior Lender in
each of the Charged Accounts as a continuing security for the due and
punctual payment of the Junior Secured 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 to which it is a party. THIS
CHARGE IS SUBORDINATE IN RIGHT TO THE CHARGES CREATED TO SECURE THE
OBLIGATIONS
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OF THE BORROWER UNDER THE SENIOR LOAN AGREEMENT, AND THE
ENFORCEMENT OF THIS CHARGE SHALL BE LIMITED IN ACCORDANCE WITH THE
PROVISIONS OF THE SENIOR SUBORDINATION AGREEMENT AND THE PRIORITY
DEED.
2.02 Notice to Bank. The Borrower will, forthwith upon execution of this
Deed, give notice to and obtain an acknowledgement from the Bank in
the form set out in Schedule 2.
3. CONTINUING SECURITY
This Deed shall be a continuing security and shall remain in full
force and effect until the Junior Secured Indebtedness has been paid
in full, notwithstanding the insolvency or liquidation or any
incapacity or change in the constitution or status of 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 Junior Lender.
4. REPRESENTATIONS AND WARRANTIES
4.01 Representations and Warranties. The Borrower represents and warrants
to the Junior Lender that:
(a) each of the Charged Accounts is beneficially owned by the
Borrower free from any Charge except as created (i) under or
pursuant to this Deed, (ii) to secure the obligations of the
Borrower under the Senior Loan Agreement or (iii) in respect
of the Guarantee, subject to any rights arising by operation
of law; and
(b) the particulars of each of the Charged Accounts set out in
Schedule 1 are accurate.
4.02 Continuing Representation and Warranty. The Borrower also represents
and warrants to and undertakes with the Junior Lender that the
foregoing representations and warranties will be true and accurate
throughout the continuance of this Deed with reference to the facts
and circumstances subsisting from time to time.
5. UNDERTAKINGS
The Borrower undertakes and agrees with the Junior Lender throughout
the continuance of this Deed and so long as the Junior Secured
Indebtedness or any part thereof remains owing that the Borrower will
not, unless the Junior Lender otherwise agrees in writing:
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(a) withdraw or attempt to or be entitled to withdraw all or any
part of the monies in each of the Charged Accounts except in
accordance with the terms of the AES Loan Agreement;
(b) create or attempt or agree to create or permit to arise or
exist any Charge over all or any part of the Charged
Accounts or any interest therein or otherwise assign, deal
with or dispose of all or any part of the Charged Accounts
(except as created (i) under or pursuant to this Deed, (ii)
to secure the obligations of the Borrower under the Senior
Loan Agreement and (iii) in respect of the Guarantee); and
(c) do or cause or permit to be done anything which may in any
way depreciate, jeopardize or otherwise prejudice the value
of the Junior Lender's security hereunder except as
permitted by the terms of this Deed and as created to secure
the obligations of the Borrower under the Senior Loan
Agreement and the CPIL Security.
6. CONDITION OF DEPOSIT
Notwithstanding any other terms upon which monies may have been
deposited in each of the Charged Accounts, throughout the continuance
of this Deed it is a condition of such deposit that no monies shall
be capable of being withdrawn from such Charged Accounts, neither the
Charged Accounts nor any part thereof shall in any way be assignable
or transferable and no Charge shall be capable of being created over
or in respect of any of the Charged Accounts other than, in each
case, in accordance with the terms of the AES Loan Agreement and the
Senior Loan Agreement.
7. ENFORCEMENT
7.01 Events of Default. For the purposes of this Clause, each of the
following events and circumstances shall be an Event of Default:
(a) any event or circumstance which would constitute an Event of
Default as that term is defined in the AES Loan Agreement;
and
(b) if the Borrower purports or attempts to create any Charge
(except under this Deed or to secure the obligations of the
Borrower under the Senior Loan Agreement) over all or any
part of any of the Charged Accounts or any third party
asserts a claim in respect thereof.
7.02 Enforcement of Security. Upon the occurrence of an Event of Default,
the Junior Lender may, subject to Clause 7.03 and the provisions of
the Senior Subordination Agreement and the Priority Deed, at any time
or times thereafter and without further notice or restriction,
procure the appropriation, transfer or set off all or any part of the
monies in any
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Charged Account in or towards the payment or discharge
of the Junior Secured Indebtedness in such manner as the Junior
Lender may think fit and, for this purpose, the Junior Lender may, at
the expense of the Borrower, convert all or any part of such monies
into other currencies. The above provisions apply notwithstanding
that any such monies may have been deposited for a fixed period or be
subject to a period of notice and that the fixed period or period of
notice may not have expired or that notice or sufficient notice may
not have been given.
7.03 No Change in Name. Notwithstanding any other provision in this Deed,
the Charged Accounts shall at all times be held in the name of the
Borrower and the Junior Lender shall not at any time before or after
enforcement or otherwise be entitled or otherwise able to change, or
procure any change which would result in, any of the Charged Accounts
being held otherwise than in the Borrower's name from time to time.
8. TAXES AND OTHER DEDUCTIONS
All sums payable by the Borrower 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 the Borrower or any
other person is 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 Junior
Lender, the Borrower shall, together with such payment, pay such
additional amount as will ensure that the Junior Lender receives
(free and clear of any tax (other than an Excluded Tax) or other
deductions or withholdings) the full amount which it would have
received if no such deduction or withholding had been required. The
Borrower shall promptly forward to the Junior Lender 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.
9. COSTS, CHARGES AND EXPENSES
The Borrower shall from time to time forthwith on demand pay to or
reimburse the Junior Lender 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 Junior Lender 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 Junior Lender in
exercising any of its
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rights or powers hereunder or in suing
for or seeking to recover any sums due hereunder or
otherwise preserving or enforcing its rights hereunder or in
defending any claims brought against it 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.
To the extent practicable, the Junior Lender shall consult the
Borrower before incurring any major expenditure.
10. SET-OFF
Notwithstanding Clause 7 and/or any provision hereof, the Borrower
agrees that the Junior Lender shall (without prejudice to any general
or lender's lien, right of set-off or any other right to which it may
be entitled) have the right, without notice to the Borrower or any
other person, at any time to set off and apply any credit balance on
any Charged Account (whether subject to notice or not and whether
matured or not and in whatever currency) and any other indebtedness
owing by the Junior Lender to the Borrower, against the Junior
Secured Indebtedness in accordance with the provisions of clause
16.03 of the AES Loan Agreement and the Junior Lender is authorized
to purchase with the monies standing to the credit of any such
accounts such other currencies as may be necessary for this purpose.
11. INDEMNITY
11.01 General Indemnity. The Borrower shall indemnify the Junior Lender
against all losses, liabilities, damages, costs and expenses incurred
by it in the execution or performance of the terms and conditions
hereof and against all actions, proceedings, claims, demands, costs,
charges and expenses which maybe 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 Borrower herein
contained or in respect of any matter or thing done or omitted
relating in any way whatsoever to the Charged Accounts.
11.02 Currency Indemnity. Dollars shall be the currency of account and of
payment in respect of sums payable under this Deed. If an amount is
received in another currency, pursuant to a judgment or order or in
the liquidation of the Borrower or otherwise, the Borrower's
obligations under this Deed shall be discharged only to the extent
that the Junior Lender may purchase Dollars with such other currency
in accordance with normal banking procedures upon receipt of such
amount. If the amount in Dollars which may be so purchased, after
deducting any costs of exchange and any other related costs, is less
than the relevant sum payable under this Deed, the Borrower shall
indemnify the Junior Lender against the shortfall. This indemnity
shall be an obligation of the Borrower independent of and
6
in addition
to its other obligations under this Deed and shall take effect
notwithstanding any time or other concession granted to the Borrower
or any judgment or order being obtained or the filing of any claim in
the liquidation, dissolution or bankruptcy (or analogous process) of
the Borrower.
11.03 Payment and Security. The Junior Lender may retain and pay out of any
money in the Junior Lender's hands all sums necessary to effect the
indemnity contained in this Clause 11 and all sums payable by the
Borrower under this Clause 11 shall form part of the monies hereby
secured.
12. FURTHER ASSURANCE
12.01 Further Assurance. 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 Junior Lender may require over or in respect of the
Charged Accounts 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 Junior Lender's
rights, benefits or obligations hereunder and the Borrower shall also
give all notices, orders and directions which the Junior Lender may
require.
12.02 Enforcement of Junior Lender's Rights. Subject to the Senior
Subordination Agreement and the Priority Deed, the Borrower will do
or permit to be done everything which the Junior Lender may from time
to time require to be done for the purpose of enforcing the Junior
Lender's rights hereunder and will allow the name of the Borrower to
be used as and when required by the Junior Lender for that purpose.
13. POWER OF ATTORNEY
The Borrower irrevocably appoints the Junior Lender by way of
security to be its attorney-in-fact (with full power of substitution)
and in its name or otherwise on its behalf and as its act and deed to
sign, seal, execute, deliver, perfect and do all deeds, instruments,
acts and things which may be required or which the Junior Lender
shall think proper or expedient for carrying out any obligations
imposed on the Borrower hereunder or for exercising any of the powers
hereby conferred or for giving to the Junior Lender the full benefit
of this security and so that the appointment hereby made shall
operate to confer on the Junior Lender authority to do on behalf of
the Borrower anything which it can lawfully do by an
attorney-in-fact. The Borrower ratifies and confirms and agrees to
ratify and confirm any deed, instrument, act or thing which such
attorney-in-fact or substitute may execute or do.
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14. SUSPENSE ACCOUNT
The Junior Lender may place and keep any monies received by virtue of
this Deed (whether before or after the insolvency or liquidation of
the Borrower) to the credit of a suspense account for so long as the
Junior Lender may think fit in order to preserve the rights of the
Junior Lender to sue or prove for the whole amount of its claims
against the Borrower or any other person.
15. WAIVER AND SEVERABILITY
No failure or delay by the Junior Lender 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.
16. MISCELLANEOUS
16.01 Continuing Obligations. The liabilities and obligations of 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 Junior Secured Indebtedness.
16.02 Protective Clauses. Without limiting Clause 16.01, neither the
liability of 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 the AES Loan Agreement, any
of the Subordinated Security Documents or any other document
referred to therein;
(c) the invalidity or unenforceability of any obligation or
liability of the Borrower under the AES Loan Agreement or
this Deed or any of the Subordinated Security Documents to
which it is a party;
(d) any invalidity or irregularity in the execution of this Deed
or the AES Loan Agreement or any of the other Subordinated
Security Documents;
8
(e) any deficiency in the powers of the Borrower to enter into
or perform any of its obligations under the AES Loan
Agreement or any of the other Subordinated Security
Documents to which it is a 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) any other Subordinated Security Document, Charge, guarantee
or other security or right or remedy being or becoming held
by or available to the Junior Lender or by any of the same
being or becoming wholly or partly void, voidable,
unenforceable or impaired or by the Junior Lender 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 the Junior Lender may now or hereafter have from
or against the Borrower or any other person;
(g) 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;
(h) 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 Borrower
hereunder.
16.03 Unrestricted Right of Enforcement. Subject to the Senior
Subordination Agreement and the Priority Deed, this Deed may be
enforced without the Junior Lender first having recourse to any other
security or rights or taking any other steps or proceedings against
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.
16.04 Discharges and Releases. Notwithstanding any discharge, release or
settlement from time to time between the Junior Lender and the
Borrower, if any security, disposition or payment granted or made to
the Junior Lender in respect of the Junior Secured Indebtedness by
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, the Junior Lender shall be
entitled hereafter to enforce this Deed as if no such discharge,
release or settlement had occurred.
16.05 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
the amendment or waiver is asserted.
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17. ASSIGNMENT
17.01 The Borrower. The Borrower shall not assign any of its rights or
obligations hereunder.
17.02 The Junior Lender. The Junior Lender may assign or grant
participations in all or any part of its rights under this Deed in
accordance with the provisions of clause 20 of the AES Loan
Agreement.
18. NOTICES
18.01 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 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
To the Junior Lender: AES China Holdings Company (L) Limited
9th Floor, Allied Capital Resources Building
32-38 Ice House Street
Central, Hong Kong
Fax Number: (852) 2530-1673
Attention: Jeff Safford
Chief Financial Officer
18.02 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.
19. GOVERNING LAW AND JURISDICTION
19.01 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.
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19.02 Jurisdiction. 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 submits to the non-exclusive jurisdiction
of such courts.
19.03 Process Agent. The Borrower irrevocably appoints Messrs. 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 the Borrower for this
purpose, the Borrower shall promptly appoint a successor agent
satisfactory to the Junior Lender and notify the Junior Lender
thereof, provided that until the Junior Lender receives such
notification, it shall be entitled to treat the agent named above (or
its said successor) as the agent of the Borrower for the purposes of
this Clause 19.03. 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 the Borrower.
19.04 No Limitation on Right of Action. Nothing herein shall limit the
right of the Junior Lender to commence any legal action against the
Borrower and/or its property in any other jurisdiction or to serve
process in any manner permitted by law, and the taking of proceedings
in any jurisdiction shall not preclude the taking of proceedings in
any other jurisdiction whether concurrently or not.
19.05 Waiver; Final Judgment Conclusive. 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. 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.
19.06 Waiver of Immunity. 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.
20. SUBORDINATED SECURITY
Notwithstanding any other provision to the contrary, this Deed must
be read and construed in all respects, and the exercise of any rights
under
11
this Deed and the enforcement of any rights under this Deed
must be subject in each case to the terms of the:
(a) Senior Subordination Agreement; and
(b) Priority Deed.
In the event of any conflict or inconsistency between the terms of
this Deed of the one part and the Senior Subordination Agreement or
the Priority Deed of the other part, the latter documents will
prevail.
IN WITNESS whereof the parties hereto have executed this Deed on the day and
year first above written.
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Schedule 1
Charged Accounts
Borrower RMB Revenue Account 018250012407
Borrower Dollar Retention Account 148250028606
Borrower Special Dividends Account 148250032607
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Schedule 2
Form of Notice and Acknowledgement
To: Bank of China, Wuhu Branch
Dear Sirs,
Re: Account Nos. [ ]
We give you notice that by a subordinated charge over bank account dated-------
1996 (the 'Charge') we have charged and assigned by way of a third fixed charge
in favour of AES China Holdings Company (L) Limited (the 'Junior Lender') the
above accounts (the 'Charged Accounts') and a third-priority security interest
in all our right, title, interest and benefit therein and thereto upon the terms
and conditions therein contained. This charge is subordinated and is a third
ranking security. All the rights of the Junior Lender under this Charge are
subject to the Senior Subordination Agreement and the Senior Priority Deed.
We enclose a copy of the Charge with this notice. Please note that under the
terms of the Charge, we are not entitled to withdraw any monies from any Charged
Account except in accordance with the terms of the AES Loan Agreement.
Until notice in writing to the contrary is provided by the Security Agent, we
authorize and instruct you from time to time, upon receipt of instructions from
the Security Agent and subject to the Senior Subordination Agreement and the
Priority Deed:
(a) to pay to the Security Agent, or as it may direct, any or all monies
standing to the credit of any Charged Account in accordance with such
instructions;
(b) to disclose to the Security Agent such information relating to any
Charged Account as the Security Agent may request.
We agree that you shall not be bound to enquire whether the right of the
Security Agent to withdraw any monies from any Charged Account has arisen or be
concerned with the propriety or regularity of the exercise thereof or be
concerned with notice to the contrary or be concerned with or responsible for
the application of any monies received by the Security Agent.
These instructions shall not be revoked or varied without the prior written
consent of the Junior Lender.
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Please acknowledge this notice by signing as indicated and returning to the
Junior Lender the enclosed duplicate of this notice.
Yours faithfully,
For and on behalf of
Wuhu Shaoda Electric Power Development Company Limited
Name:
Title:
15
[on duplicate]
To: Bank of China, Anhui Branch
on its own behalf and as security agent for the Senior Financing Parties
We acknowledge receipt of the above notice and confirm that we will comply with
the terms thereof.
We agree that we will neither claim to set off to your prejudice any monies
standing to the credit of any Charged Account against any claim we may have
against Wuhu Shaoda Electric Power Development Company Limited howsoever arising
nor exercise or attempt to exercise any right of set-off or consolidation or
combination of accounts or similar right in respect of or in relation to any
Charged Account unless, in each case, at your instructions or with your consent.
Dated:
For and on behalf of
Bank of China, Wuhu Branch
Name:
Title:
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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: /s/ [SIGNATURE ILLEGIBLE] )
/s/ [SIGNATURE ILLEGIBLE]
THE JUNIOR LENDER
- -----------------
SIGNED for and on behalf of )
AES CHINA HOLDINGS )
COMPANY (L) LIMITED )
by )
in the presence of: /s/ [SIGNATURE ILLEGIBLE] )
/s/ [SIGNATURE ILLEGIBLE]
17
Subordinated Borrower Charge Over Accounts - Wuhu Shaoda Electric Power Development Co. Ltd. and AES China Holdings Co. Ltd.
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