WUHU SHAODA ELECTRIC POWER DEVELOPMENT COMPANY LIMITED
as Borrower
and
AES CHINA HOLDINGS COMPANY (L) LIMITED
as Junior Lender
SUBORDINATED INSURANCE ASSIGNMENT
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. Assignment of Insurances...........................................2
3. Continuing Security................................................3
4. Representations and Warranties.....................................3
5. Undertakings.......................................................4
6. Borrower's Liability...............................................6
7. Proceeds of Insurances.............................................6
8. Taxes and Other Deductions.........................................7
9. Costs, Charges and Expenses........................................7
10. Indemnity..........................................................8
11. Further Assurance..................................................8
12. Power of Attorney..................................................9
13. Suspense Account...................................................9
14. Waiver and Severability............................................9
15. Miscellaneous.....................................................10
16. Assignment........................................................11
17. Notices...........................................................11
18. Governing Law and Jurisdiction....................................12
19. Subordinated Security.............................................13
Schedule 1 Form of Notice................................................14
Schedule 2 Form of Loss Payable and Notice of Cancellation Clause........16
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 Besar, 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) 'Insurances' means all policies or contracts of insurance
which are now or may hereafter be effected in respect of the
Insured Assets or any part thereof (but expressly excluding
any third party liability insurances and any other
insurances arranged solely for the benefit of third parties)
and all benefits and proceeds thereof, including all claims
of whatever nature and returns of premiums;
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(d) 'Insured Assets' means the buildings, plant, equipment,
machinery, spare parts and other assets owned by the
Borrower and used in connection with the Project; and
(e) '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' 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 are to
clauses of this Deed. Clause headings are inserted for reference only
and shall be ignored in construing this Deed.
2. ASSIGNMENT OF INSURANCES
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 assigns and grants to the Junior Lender a third-priority
security interest in absolutely all the Borrower's right, title,
interest and benefit in and to the Insurances upon the terms herein
set out 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 ASSIGNMENT IS
SUBORDINATE IN RIGHT TO THE CHARGES CREATED TO SECURE THE OBLIGATIONS
OF THE
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BORROWER UNDER THE SENIOR LOAN AGREEMENT, AND THE ENFORCEMENT
OF THIS ASSIGNMENT SHALL BE LIMITED IN ACCORDANCE WITH THE PROVISIONS
OF THE SENIOR SUBORDINATION AGREEMENT AND THE PRIORITY DEED.
2.02 Notice. The Borrower will, forthwith upon the execution of this Deed
(or, if later, upon any policy or contract of insurance comprised in
the Insurances coming into force), give notice of the assignment
herein contained to and obtain an acknowledgment from the relevant
insurers substantially in the form set out in Schedule 1 or, if not
in that form, in a form satisfactory to the Junior Lender.
2.03 Dealings with Parties. Notwithstanding the assignment herein
contained but otherwise subject to the terms of this Deed, the Junior
Lender authorizes the Borrower to continue to deal with the other
parties to the Insurances and each of them in relation thereto as if
the Borrower remained solely entitled to all the rights, title,
interest and benefits thereunder but, save as herein provided, not
directly to receive any moneys payable under the Insurances, provided
that if an Event of Default or prospective Event of Default occurs
and the Junior Lender gives written notice thereof to the Borrower
the foregoing authority shall immediately cease to have effect.
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) the Insurances are 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 and (iii) in respect of the
Guarantee;
(b) the Insurances are valid and in full force and effect and
are not void or voidable; and
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(c) all premiums and other monies (if any) payable in respect of
the Insurances have been duly paid and all covenants, terms
and conditions contained in the Insurances have been duly
observed and performed.
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 existing 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, unless the Junior Lender otherwise agrees in writing:
(a) procure that a loss payable and notice of cancellation
clause, substantially in the form of Schedule 2, and in any
event in a form satisfactory to the Junior Lender, is
included in each of the policies or contracts of insurance
comprised in the Insurances;
(b) procure that, on or prior to any policy or contract of
insurance comprised in the Insurances coming into force (or,
if later, the execution of this Deed), the insurance brokers
and insurers in respect of such insurance give their written
consent to the assignment pursuant to this Deed and their
written undertaking to the Junior Lender:
(i) promptly to advise the Junior Lender:
(a) if any insurer cancels, purports to cancel
or gives notice of cancellation of such
insurance;
(b) of any purported or actual alteration in
or termination or expiry of such
insurance;
(c) of any default in the payment of any
premium or call; and
(d) of any act or omission or of any event of
which that broker or insurer has
knowledge which might invalidate or render
unenforceable in whole or in part
such insurance; and
(ii) to make any payments in respect of such insurance
in accordance with the loss payable
provisions set out in Schedule 2; and
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(iii) to hold all policies, cover notes and other
relevant documents issued or hereafter to be issued
in respect of such insurance for the benefit of the
Junior Lender;
(c) pay all premiums and other amounts due in respect of the
Insurances (and provide the Junior Lender with receipts
therefor) and deliver to the Junior Lender copies of all
policies, cover notes and other relevant documents relating
to the Insurances, provided that the Borrower shall arrange
for the delivery of the originals of such documents to the
Junior Lender as soon as all amounts owed to the Senior
Financing Parties under the Senior Loan Agreement have been
paid in full;
(d) take all steps which may be necessary or expedient to keep
the Insurances in full force and effect and protect the
interests of the Borrower and the Junior Lender in the
Insurances;
(e) renew all policies or contracts of insurance comprised in
the Insurances no later than fourteen (14) days before the
expiry of such policies or contracts;
(f) reimburse on demand to the Junior Lender any amount paid by
the Junior Lender to any insurer of any of the Insurances in
respect of any premium or other amount due to such insurer
in respect of the Insurances, together with interest thereon
from the date of payment to the date of reimbursement at the
rate calculated in accordance with clause 15 of the AES Loan
Agreement;
(g) do or permit to be done every act or thing which the Junior
Lender may from time to time require for the purpose of
enforcing the rights of the Junior Lender hereunder;
(h) contemporaneously with the making of any claim in excess of
fifty thousand Dollars (US$50,000) under the Insurances,
notify the Junior Lender in writing of the same, such
notification to be accompanied by a certified true copy of
any form(s) and document(s) submitted to the relevant
insurer(s) in respect of such claim and provide such other
details in connection with the claim as the Junior Lender
may request;
(i) not, without the prior written consent of the Junior Lender,
waive, release, settle, compromise or abandon any claim
under the Insurances or do or omit to do any other act or
thing whereby the recovery in full of any amounts in respect
of the Insurances as and when they become payable may be
impeded;
(j) not create or attempt or agree to create or permit to arise
or exist any Charge over all or any part of the Insurances
or any interest therein or otherwise assign, deal with or
dispose of all or any part
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of the Insurances (except under
or pursuant to this Deed and to secure the obligations of
the Borrower under the Senior Loan Agreement and the CPIL
Security);
(k) except for the relevant Charges created to secure the
obligations of the Borrower under the Senior Loan Agreement
and the CPIL Security, not 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.
6. BORROWER'S LIABILITY
Notwithstanding the assignment herein contained, the Borrower shall
remain liable under the Insurances to observe and perform all the
obligations assumed by it thereunder and the Junior Lender shall have
no obligation or liability thereunder. The Junior Lender shall not be
obliged to make any enquiry as to the nature or sufficiency of any
payment received by it or to make any claim or take any other action
to collect any monies or to enforce any rights and benefits hereby
assigned.
7. PROCEEDS OF INSURANCES
If at the time when any insurance proceeds become due and payable,
any Event of Default or prospective Event of Default has occurred,
the Junior Lender shall have the right to apply such proceeds in or
towards satisfaction of the Junior Secured Indebtedness in such
manner as it may determine. If no Event of Default or prospective
Event of Default has then occurred:
(a) the proceeds of insurance in respect of a claim for an
amount not exceeding five hundred thousand Dollars
(US$500,000) (or the equivalent in any other currency) shall
be payable to the Borrower or (if so required under the
terms of the relevant policy) to Anhui Power and shall be
applied by the Borrower or Anhui Power, as the case may be,
in fully repairing, rebuilding or reinstating that part of
the Insured Assets destroyed or damaged and, in any event,
the Borrower shall be responsible for ensuring that such
proceeds are so applied; and
(b) the proceeds of insurance in respect of a claim for an
amount exceeding five hundred thousand Dollars (US$500,000)
(or the equivalent in any other currency) shall be payable
to the Security Agent until such time as all amounts owed
under the Senior Loan Agreement have been paid in full and
to the Junior Lender thereafter. The Security Agent or the
Junior Lender, as the case may be, shall release such
proceeds to the Borrower for the purpose of repairing or
reinstating the loss or damage in respect of which such
proceeds were paid or, at the option of the Security
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Agent or the Junior Lender, as the case may be, such
proceeds shall be paid directly to the person who has made
or is to make such repairs or reinstatement against invoices
therefor.
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 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.
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10. INDEMNITY
10.01 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 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 Borrower herein
contained or in respect of any matter or thing done or omitted, on
the part of the Borrower, relating in any way whatsoever to the
Insurances.
10.02 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 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.
10.03 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 10.03 and all sums payable by the
Borrower under this Clause 10.03 shall form part of the monies hereby
secured.
11. FURTHER ASSURANCE
11.01 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
Insurances 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.
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11.02 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.
12. 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.
13. 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.
14. 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.
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15. MISCELLANEOUS
15.01 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.
15.02 Protective Clauses. Without limiting Clause 15.01, 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
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;
(e) any deficiency in the powers of the Borrower to enter into
or perform any of its obligations hereunder or 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 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; or
(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.
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15.03 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.
15.04 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.
15.05 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.
16. ASSIGNMENT
16.01 The Borrower. The Borrower shall not assign any of its rights or
obligations hereunder.
16.02 The Junior Lender. The Junior Lender may assign or grant
participations in all or any part of their rights under this Deed
in accordance with the provisions of clause 20 of the AES Loan
Agreement.
17. NOTICES
17.01 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
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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
17.02 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.
18. GOVERNING LAW AND JURISDICTION
18.01 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.
18.02 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.
18.03 Process Agent. 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 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 18.03. 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.
18.04 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
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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.
18.05 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.
18.06 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.
19. 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 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
Form of Notice
To: [Name of Insurer]
[Date]
Dear Sirs,
Re: [Specify relevant policy or contract of insurance]
We refer to the above insurances (the 'Insurances') effected by you in favor of
Wuhu Shaoda Electric Power Development Company Limited and which are the subject
of a Subordinated Insurance Assignment (the 'Assignment') dated , 1996, a copy
of which is attached hereto.
We give you notice that by the Assignment we have assigned and granted to AES
China Holdings Company (L) Limited (the 'Junior Lender') (as that term is
defined in the Assignment) a third-priority security interest in all our right,
title, interest and benefit in and to the Insurances and all payments to be made
by you thereunder.
As stated above, this is a third-priority security interest and the Junior
Lender's rights are subordinated and expressly subject to the Senior
Subordinated Agreement and the Priority Deed.
We instruct you that until further notice all payments in respect of any claim
for an amount which you may be required to make pursuant to the terms of the
Insurances should be made in accordance with the terms set out in the enclosed
form of loss payable and notice of cancellation clause.
These instructions may not be altered or revoked by us without the prior written
consent of the Junior Lender.
Please acknowledge these instructions 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
[Enclose form of Loss Payable and Notice of Cancellation Clause]
14
[on duplicate]
To: AES China Holdings Company (L) Limited
9th Floor, Allied Capital Resources Building
32-38 Ice House Street
Central, Hong Kong
Attn: Mr. Jeff Safford
(as Junior Lender)
We acknowledge receipt of the above notice and confirm that a loss payable and
notice of cancellation clause in the form enclosed with the notice has been
included in the Insurances and that we will comply with the instructions
contained therein.
Dated .
For and on behalf of
[name of insurer]
Authorized Signature(s)
15
Schedule 2
Form of Loss Payable and
Notice of Cancellation Clause
By an insurance assignment dated 1996 (the 'Subordinated Insurance Assignment'),
Wuhu Shaoda Electric Power Development Company Limited (the 'Borrower') assigned
and granted a third-priority security interest (which is subject to the Senior
Subordination Agreement and the Priority Deed) in all its right, title, interest
and benefit in and to this policy/contract of insurance and the benefits and
proceeds hereof including all claims of whatever nature to AES China Holdings
Company (L) Limited (the 'Junior Lender'). Terms defined in the Subordinated
Insurance Assignment shall have the same meanings hereunder.
Until notice in writing to the contrary is received by the insurer or the
insurance broker hereunder from the Security Agent, all proceeds of:
(i) any settlements of claims hereunder in respect of an actual or
constructive or compromised or arranged total loss of the Power Plant
shall be paid to the Security Agent;
(ii) any other settlements of such claims hereunder which do not exceed
US$500,000 in any one case shall be paid to the claimant or its order
(unless the Security Agent otherwise instructs the Company in writing),
or the Security Agent or its order if the Security Agent shall notify
the Company in writing that an event of default has occurred under the
Agreement; and
(iii) any other settlements of such claims hereunder exceeding US$500,000
in any one case shall be paid to the Security Agent.
For the purposes of (ii) and (iii) above any claim or number of claims arising
from the same occurrence shall be regarded as one claim.
Until notice in writing to the contrary is received by the insurer or the
insurance broker hereunder from the Junior Lender, the Junior Lender shall be
advised:
(i) if any insurer under this policy/contract gives notice of cancellation
of any insurance hereunder, at least thirty (30) days before any such
cancellation is to take effect;
(ii) of any proposed alteration in or termination or expiry of any such
insurance at least thirty (30) days before such alteration, termination
or expiry is to take effect;
(iii) promptly of any default in the payment of any premium or call; and
(iv) promptly of any act or omission or of any event of which any insurer
hereunder has knowledge and which might invalidate or render
unenforceable in whole or in part such insurance.
16
No cancellation, termination or expiry of or alteration to any insurance
hereunder shall be effective as against the Junior Lender unless the relevant
provision of this clause have been complied with in full.
The rights of the Junior Lender under this policy/contract of insurance shall
not be prejudiced by any act or neglect of the Borrower or any other person nor
by any proceedings in relation to the Insured Assets.
17
THE BORROWER
- ------------
EXECUTED and DELIVERED as a Deed )
for and on behalf of )
WUHU SHAODA ELECTRIC POWER )
DEVELOPMENT COMPANY LIMITED )
by )
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]
18
Subordinated Insurance Assignment - Wuhu Shaoda Electric Power Development Co. Ltd. and AES China Holdings Co. Ltd.
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