WUHU SHAODA ELECTRIC POWER DEVELOPMENT COMPANY LIMITED
as Borrower
and
AES CHINA HOLDINGS COMPANY (L) LIMITED
as Junior Lender
SUBORDINATED PROJECT CONTRACTS 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 Project Contracts.....................................3
3. Continuing Security.................................................4
4. Representations and Warranties......................................4
5. Undertakings........................................................4
6. Borrower's Liability................................................5
7. Events of Default...................................................5
8. Application of Receipts.............................................6
9. Taxes and Other Deductions..........................................6
10. Costs, Charges and Expenses.........................................6
11. Indemnity...........................................................7
12. Further Assurance...................................................8
13. Power of Attorney...................................................8
14. Suspense Account....................................................8
15. Waiver and Severability.............................................9
16. Miscellaneous.......................................................9
17. Assignment.........................................................10
18. Notices............................................................11
19. Governing Law and Jurisdiction.....................................11
20. Subordinated Security..............................................12
Schedule Form of Notice............................................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 Chigen Limited Guarantee' means the limited guarantee
dated April 22, 1996 issued by AES Chigen in favor of the
Borrower;
(c) 'AES Loan Agreement' means the loan agreement dated --------
1996 and made between the Junior Lender and the Borrower;
(d) 'Anhui Liyuan Loan Agreement' means the loan agreement dated
April 22, 1996 and made between Anhui Liyuan and the
Borrower;
(e) 'Conversion Agreement' means the agreement dated April 22,
1996 and made between the Borrower and the Conversion Bank;
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(f) 'EPC Contract' means the engineering, procurement and
construction services contract dated April 22, 1996 and made
between the Borrower and Anhui Power in connection with the
Power Plant;
(g) 'Event of Default' means any event specified as such in
Clause 7; and 'prospective Event of Default' means any event
with which the giving of notice and/or the passage of time
and/or the fulfilment of any other condition would be an
Event of Default;
(h) 'Interconnection Contract' means the contract dated April
22, 1996 and made between the Borrower and Anhui Power for
the purpose of connecting the Power Plant to the Anhui grid;
(i) '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;
(j) 'Operation and Offtake Contract' means the contract dated
April 22, 1996 and made between the Borrower and Anhui Power
for the operation of the Power Plant and the sale and
purchase of electricity;
(k) 'Performance Guarantee' means the performance guarantee
dated April 22, 1996 issued by East China Power in
connection with Anhui Power's obligations under the EPC
Contract;
(l) 'Project Contracts' means the EPC Contract, the Operation
and Offtake Agreement, the Interconnection Agreement, the
Performance Guarantee, the Anhui Liyuan Loan Agreement, the
Wuhu Loan Agreement, the AES Chigen Limited Guarantee and
the Conversion Agreement, including all enclosures,
amendments and supplements thereto and all benefits thereof
including, without limitation:
(i) the right to receive any and all moneys due or to become due
to the Borrower under or pursuant to the Project Contracts;
(ii) all claims in respect of any breach of the Project
Contracts;
(iii)the right (but not the obligation) of the Borrower to
perform and to compel performance of the Project Contracts;
and
(iv) any right of the Borrower to rescind or otherwise terminate
the Project Contracts; and
(m) 'Wuhu Loan Agreement' means the loan agreement dated April
22, 1996 and made between Wuhu and the Borrower.
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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, any Project Contract 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 Schedules are to clauses of and schedules to this
Deed. Clause headings are inserted for reference only and shall be
ignored in construing this Deed.
2. ASSIGNMENT OF PROJECT CONTRACTS
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 Project Contracts 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 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,
give notice of the assignment herein contained to and obtain an
acknowledgment from each of the other parties to the Project
Contracts in
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the form set out in the Schedule or, if not in that
form, in a form satisfactory to the Junior Lender.
2.03 Dealing with Parties. Notwithstanding the assignment herein contained
but otherwise subject to the terms of this Deed, the Junior Lender
hereby authorizes the Borrower to continue to deal with the other
parties to the Project Contracts in relation to the Project Contracts
as if the Borrower remained solely entitled to all the rights, title,
interest and benefits thereunder but, save as herein provided, not
directly to waive, amend, vary or otherwise modify any provision of
any Project Contract, provided that if an Event of Default or
prospective Event of Default occurs 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 Representation and Warranty. Except for the relevant Charges created
under this Deed and to secure the obligations of the Borrower under
the Senior Loan Agreement and the CPIL Security, the Borrower hereby
represents and warrants to the Junior Lender that no Charge exists,
and the Borrower has not created or agreed to create any Charge over,
all or any of its rights, title and interest in and to the Project
Contracts other than rights arising by operation of law.
4.02 Continuing Representation and Warranty. The Borrower also represents
and warrants to and undertakes with the Junior Lender that the
foregoing representation and warranty 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:
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(a) take all steps which may be necessary or expedient to keep
the Project Contracts in full force and effect and protect
the interests of the Borrower and the Junior Lender therein
and shall 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;
(b) not waive, release, settle, compromise or abandon any claim
or the liability of any person under the Project Contracts
or do or omit to do any other act or thing whereby the
recovery in full of any moneys payable thereunder as and
when they become payable may be impeded;
(c) not amend, vary or otherwise modify any provision of any
Project Contract;
(d) except for the relevant Charges created under this Deed and
to secure the obligations of the Borrower under the Senior
Loan Agreement and the CPIL Security, not hereafter create
or agree to create or permit to arise or exist any Charge
over the Project Contracts; and
(e) provide to the Junior Lender copies of all material notices
and material documents issued by the other parties to the
Project Contracts relating to the Project Contracts
forthwith upon the Borrower receiving the same.
6. BORROWER'S LIABILITY
Notwithstanding the assignment herein contained, the Borrower shall
remain liable to observe and perform all the obligations assumed by
it in relation to the Project Contracts 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 moneys or to enforce any rights and benefits
hereby assigned.
7. EVENTS OF DEFAULT
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;
(b) the Borrower purports or attempts to create any Charge over
all or any part of the Project Contracts or any third party
asserts a claim
5
(other than a frivolous or vexatious claim)
in respect thereof unless contested in good faith and
through appropriate means; and
(c) the security hereby created or any part thereof fails or
ceases for any reason to be in full force and effect or is
terminated or jeopardized or becomes invalid or
unenforceable or if there is any dispute regarding the same
or if there is any purported termination of the same or it
becomes impossible or unlawful for the Borrower to perform
any of its obligations hereunder or for the Junior Lender to
exercise all or any of its rights, powers and remedies
hereunder.
8. APPLICATION OF RECEIPTS
After the occurrence of an Event of Default, all monies received by
the Junior Lender hereunder may be applied in or towards satisfaction
of the Junior Secured Indebtedness in such manner as is provided for
in the AES Loan Agreement and subject to the provisions of the Senior
Subordination Agreement and the Priority Deed.
9. 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.
10. 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
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(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.
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 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
Project Contracts.
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 an 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.
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12. FURTHER ASSURANCE
12.01 Further Assurance. Subject to the Senior Subordination Agreement and
the Priority Deed, 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
Project Contracts 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 the Junior Lender's Rights. 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.
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.
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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
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 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
9
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.
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.
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 their rights under this Deed in
accordance with the provisions of clause 20 of the AES Loan
Agreement.
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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.
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 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
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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 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.
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In the event of any conflict or inconsistency between the terms of
this Deed of the one part and the Senior Subordinated 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
Form of Notice
To: [ ]
[Date]
Dear Sirs,
Re: [Name of Contract(s)]
We hereby give you notice that by an assignment dated -----------1996 we have
assigned and granted to AES China Holdings Company (L) Limited (the 'Junior
Lender') a third-priority security interest in all our rights, title and
interest in and to the above [name of Contract(s)] and all benefits and proceeds
thereof.
We hereby instruct you that upon receiving written notice from the Junior
Lender, all payments which you may be required to make under the [name of
Contract(s)] are to be made directly to the Junior Lender. Until such notice is
received, you shall make all such payments in accordance with the terms of the
[name of Contract(s)].
In all other respects, and until you receive written notice to the contrary from
the Junior Lender, you shall continue to deal with us in respect of the above
[name of Contract(s)], save that no waiver shall be given and no amendment,
variation or other modification shall occur with respect to any provision of any
Project Contracts without the consent of the Junior Lender.
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
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[on duplicate:]
To: [ ]
We acknowledge receipt of the above notice.
We confirm that we consent to the assignment referred to above, that we have no
notice of any existing Charge over the [name of Contract(s)] and that we will
comply with the terms of the above notice.
Dated:
Authorized Signature(s)
[ ]
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THE BORROWER
- ------------
EXECUTED and DELIVERED )
for and on behalf of )
WUHU SHAODA ELECTRIC POWER )
DEVELOPMENT COMPANY LIMITED )
by )
in the presence of: [SIGNATURE ILLEGIBLE] )
[SIGNATURE ILLEGIBLE]
THE JUNIOR LENDER
- -----------------
SIGNED for and on behalf of )
AES CHINA HOLDINGS )
COMPANY (L) LIMITED )
by )
in the presence of: [SIGNATURE ILLEGIBLE] )
[SIGNATURE ILLEGIBLE]
16
Subordinated Project Contracts Assignment - Wuhu Shaoda Electric Power Development Co. Ltd. and Aes China Holdings Co. Ltd.
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