DATED 26th June 1996
AES CHINA HOLDING COMPANY (L) LIMITED
and
ANHUI LIYUAN ELECTRIC POWER DEVELOPMENT COMPANY LIMITED
and
CHINA POWER INTERNATIONAL HOLDING LIMITED
and
WUHU ENERGY DEVELOPMENT COMPANY
together as Sponsors and Subordinated Lenders
and
WUHU SHAODA ELECTRIC POWER DEVELOPMENT COMPANY LIMITED
as Borrower
and
CCIC FINANCE LIMITED
on its own behalf and as facility agent
for the Lenders referred to herein
------------------------------------
UNDERTAKING AND SUBORDINATION DEED
-------------------------------------
Baker & McKenzie
14th Floor Hutchison House
Hong Kong
CONTENTS
Number Clause Heading Page
- ------ -------------- ----
1. Interpretation.........................................................2
2. Project Undertakings...................................................3
3. Subordination of Indebtedness..........................................5
4. Acknowledgement by Borrower............................................9
5. Continuing Security....................................................9
6. Representations and Warranties.........................................9
7. Undertakings..........................................................11
8. Borrower's Representations, Warranties and Undertaking................13
9. Claims by Subordinated Lenders........................................14
10. Taxes and Other Deductions............................................14
11. Costs, Charges and Expenses...........................................14
12. Indemnity.............................................................15
13. Further Assurance.....................................................16
14. Evidence of Debt......................................................16
15. Suspense Account......................................................16
16. Waiver and Severability...............................................17
17. Miscellaneous.........................................................17
18. Assignment............................................................19
19. Notices...............................................................19
20. Governing Law and Jurisdiction........................................21
Execution ...............................................................23
THIS DEED is made on the 26th day of June 1996
-------- ---------
BETWEEN:
(1) AES CHINA HOLDING COMPANY (L) LIMITED of Lot A, Level 3, Wisma
Oceanic, Jalan Okk Awang Besar, 87007, Federal Territory of Labuan,
Malaysia ('AES');
(2) ANHUI LIYUAN ELECTRIC POWER DEVELOPMENT COMPANY LIMITED of No.
415 Wuhu Road, Hefei, Anhui Province, People's Republic of China
('Anhui Liyuan');
(3) CHINA POWER INTERNATIONAL HOLDING LIMITED of Suite 5306, 53/F,
Central Plaza, 18 Harbour Road, Wanchai, Hong Kong ('CPIL');
(4) WUHU ENERGY DEVELOPMENT COMPANY of Commercial Office Building,
Huangshan West Road, Wuhu, Anhui Province, People's Republic of China
('Wuhu');
(AES, Anhui Liyuan, CPIL and Wuhu shall in their respective
capacities as Joint Venture Parties and sponsors of the Project and
as provider of subordinated loans as envisaged in Clause 2.02 of this
Deed, be collectively referred to as the 'Sponsors' and, in their
respective capacities as lenders under Subordinated Loan Agreements
only, be collectively referred to as the 'Subordinated Lenders');
(5) WUHU SHAODA ELECTRIC POWER DEVELOPMENT COMPANY LIMITED, an equity
joint venture company formed under the Law of the People's Republic
of China on Joint Ventures Using Chinese and Foreign Investment and
whose registered office is at Commercial Office Building, West
Huangshan Road, Wuhu, Anhui Province, People's Republic of China, as
borrower (the 'Borrower'); and
(6) CCIC FINANCE LIMITED of 38th Floor, Bank of China Tower, 1 Garden
Road, Central, Hong Kong on its own behalf and as facility agent for
the Lenders referred to below (in such capacity, the 'Facility
Agent').
WHEREAS:
(A) By a loan agreement (the 'Loan Agreement') dated 22nd April 1996 made
between (1) the Borrower, (2) CCIC Finance Limited, as arranger (the
'Arranger'), (3) Bank of China, Hong Kong Branch, Cho Hung Bank, DKB
Asia Limited, Dresdner Bank AG Hong Kong Branch, The First National
Bank of Chicago, The Industrial Bank of Japan, Limited, Korea First
Bank and Westdeutsche Landesbank Girozentrale, Hong Kong Branch, as
co-arrangers (the 'Co-Arrangers'), (4) the banks and other financial
institutions named therein as lenders (the 'Lenders'), (5) Bank of
China, Anhui Branch, as security agent (the 'Security Agent') and (6)
the Facility Agent, the Lenders have agreed to make available to the
Borrower a term loan facility of up to sixty-five million Dollars
(US$65,000,000), upon the terms set out therein.
(B) It is a condition precedent to the Lenders making the Facility
available to the Borrower that the Sponsors, the Subordinated Lenders
and the Borrower enter into this Deed.
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.01 Definitions and Construction. In this Deed, unless the context
requires otherwise:
(a) terms and expressions defined in or construed for the
purposes of the Loan Agreement shall have the same meanings
or be construed in the same manner when used in this Deed;
(b) 'Committed Subordinated Loan Agreements' shall mean the AES
Loan Agreement, the Anhui Liyuan Loan Agreement and the Wuhu
Loan Agreement;
(c) the expression 'Facility Agent' shall mean the Facility
Agent acting on its own behalf and as facility agent for the
Lenders and the expression 'Lenders' shall include the
Arranger, the Lead Managers, and the Security Agent in their
respective capacities as such;
(d) 'Relevant Percentage' means:
(i) in relation to AES, twenty-five per cent (25%);
(ii) in relation to Anhui Liyuan, twenty per cent (20%);
(iii) in relation to CPIL, forty-five per cent (45%); and
(iv) in relation to Wuhu, ten per cent (10%);
(e) '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 Loan
Agreement or any Security Document to which it is a party
and all other monies hereby secured;
(f) 'Subordinated Indebtedness' means all and any sums, in
whatever currency, which are now or may hereafter become
due, owing or incurred by the Borrower to the Subordinated
Lenders, whether in respect of principal, interest or
otherwise, on account of any advance, loan or payment made
to or for the account of the Borrower;
(g) 'Subordinated Loan Agreement' means any loan agreement,
facility letter or other document now or hereafter entered
into between the Subordinated Lenders and the Borrower
creating or evidencing the Subordinated Indebtedness (or any
part thereof) including, without limitation, the Committed
Subordinated Loan Agreements.
1.02 The Subordinated Lenders and the Sponsors. References to the
Subordinated Lenders and the Sponsors shall mean and include each and
every person liable hereunder as Subordinated Lender or Sponsor, as
the case may be (except the Borrower) or, where the context permits,
any one or more of them and all representations, warranties,
undertakings, agreements and obligations of the Subordinated Lenders
and the Sponsors herein expressed or implied shall, unless the
context requires otherwise, be deemed to be made, given or assumed by
each of the Subordinated Lenders and the Sponsors severally.
1.03 Loan Agreement. To the extent applicable and required by relevant
law, the terms and conditions of the 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 Successors and Assigns. The expressions 'Subordinated Lenders',
'Borrower', 'Facility Agent', 'Sponsors' and 'Lenders' shall where
the context permits include their respective personal
representatives, successors and permitted assigns and any persons
deriving title under them.
1.05 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 Loan Agreement, any other 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 are to
clauses of this Deed. Clause headings are inserted for reference only
and shall be ignored in construing this Deed.
2. PROJECT UNDERTAKINGS
2.01 Undertaking. In consideration of the Lenders agreeing to make the
Facility available to the Borrower upon the terms and conditions of
the Loan Agreement and as a continuing security for the due and
punctual payment of the Secured Indebtedness and the due and punctual
performance and observance by the Borrower of all other obligations
of the Borrower contained in the Loan Agreement or any Security
Document to which it is a party, each of the Sponsors hereby
unconditionally and irrevocably undertakes with the Facility Agent
that:
(a) it will use its best efforts to procure that the Borrower
shall proceed with, and complete, the Installation in
accordance with the EPC Contract and the Installation Plan
and any other requirements of the Loan Agreement and that
the Project Completion Date shall occur on or before the
Scheduled Completion Date, provided that its obligation to
advance, or otherwise make available funds to the Borrower
in respect of such obligation shall be limited as set forth
in paragraphs (b) and (c) below;
(b) from time to time upon the Borrower or the Facility Agent
having determined in accordance with the Loan Agreement that
a Cost Overrun has occurred or is likely to occur it will
pay to or procure that there be paid to the Borrower by way
of further equity contribution to the Borrower, an amount
equal to its Relevant Percentage of each payment required to
be made by the Borrower on account of Installation Costs
which the Borrower is not able or entitled to fund from its
own resources or by means of any advance under any
Subordinated Loan Agreement or an Advance under the
Facility, such payments by the Sponsors to be made in such
amounts and at such times as shall be necessary to ensure
that (assuming each of the Sponsors makes its respective
payment hereunder) the Borrower is able to satisfy those
Installation Costs immediately upon their becoming due;
(c) it will pay to or procure that there be paid to the
Borrower, from time to time, an amount equal to its Relevant
Percentage of each sum required by the Borrower to meet any
Working Capital Deficit and, for this purpose 'Working
Capital Deficit' means, for any relevant period, any amount
by which the payment obligations of the Borrower (other than
under the Loan Agreement or any Subordinated Loan Agreement)
during that period exceed the funds available to the
Borrower to satisfy such outgoings during that period
provided that no Working Capital Deficit shall arise prior
to the first Actual Completion Date (as defined in the
Operation and Offtake Contract) to occur of either Unit of
the Power Plant;
(d) procure that the Project is not abandoned or cancelled, in
whole or in part.
2.02 Payments. Each of the Sponsors hereby unconditionally and irrevocably
undertakes with the Facility Agent that it shall make payments or
advances to the Borrower pursuant to Clause 2.01(b) and Clause
2.01(c) above as and when required in writing by the Borrower or the
Facility Agent (accompanied, if the requirement relates to a payment
under Clause 2.01(b) in respect of Cost Overrun, by a certification
from the Technical Consultant that a Cost Overrun has occurred or is
reasonably likely to occur) from time to time so as to enable the
Borrower to meet its relevant liabilities when due. The Sponsors
shall make all payments pursuant to Clause 2.01(b) by way of cash
contribution to the capital of the Borrower (making a corresponding
increase in the registered capital of the Borrower) and shall make
all payments pursuant to Clause 2.01(c) by way of advance of
subordinated debt on terms and in currencies (being Dollars or RMB)
to be agreed between the Sponsors and the Borrower from time to time
(but subject always to the provisions of this Deed).
2.03 Lenders. If any Sponsor (the 'Defaulting Sponsor') fails to perform
its obligations under the foregoing provisions of this Clause 2, the
Lenders and/or the Facility Agent may (but shall not be obliged to)
proceed to perform all or any of such obligations on behalf of the
Defaulting Sponsor by procuring completion of the Installation and
the occurrence of the Project Completion Date or by making payment of
amounts payable under the foregoing provisions of this Clause 2, as
appropriate, and the Defaulting Sponsor shall, from time to time,
forthwith upon receiving the Facility Agent's first written demand,
pay to the Facility Agent the amount so paid together with interest
thereon at the rate referred to in clause 16 of the Loan Agreement,
calculated from the date of such payment by the Lenders and/or the
Facility Agent until full reimbursement, both before and after
judgement.
3. SUBORDINATION OF INDEBTEDNESS
3.01 Subordination. In consideration of the Lenders agreeing to make the
Facility available to the Borrower upon the terms and conditions of
the Loan Agreement and as a continuing security for the due and
punctual payment of the Secured Indebtedness and the due and punctual
performance and observance by the Borrower of all other obligations
of the Borrower contained in the Loan Agreement or any Security
Document to which it is a party, each of the Subordinated Lenders
agrees that throughout the continuance of this Deed and so long as
the Secured Indebtedness or any part thereof remains owing:
(a) subject to Clauses 3.02, 3.05 and 3.07, the Subordinated
Indebtedness owing to it:
(i) is, and shall remain, subordinated and the payment
thereof deferred to all and any rights, claims and
actions which the Facility Agent or any Lender may
now or hereafter have against the Borrower in
respect of the Secured Indebtedness;
(ii) shall not be repaid or repayable, in whole or in
part, except with the prior written consent of
the Majority Lenders;
(iii) may accrue interest, but such interest shall not be
payable;
(iv) is and shall remain unsecured by any Charge over
the whole or any part of the assets of the
Borrower;
(v) is not, and shall not become capable of being,
subject to any right of set-off or counterclaim;
(b) subject to Clauses 3.02, 3.05 and 3.07, it shall not claim,
request, demand, sue for, take or receive (whether by
set-off or in any other manner and whether from the Borrower
or any other person) any money or other property in respect
of the Subordinated Indebtedness or any part thereof;
(c) if any monies (including the proceeds of any set-off or
counterclaim) or other property are received directly or
indirectly in respect of the Subordinated Indebtedness by or
on behalf of it in breach of any of the provisions of this
Deed, it will hold the same upon trust to be applied first
in or towards payment of the Secured Indebtedness and
second, as to any balance remaining after irrevocable and
unconditional payment and discharge in full of the Secured
Indebtedness, in or towards payment of the Subordinated
Indebtedness, upon such terms as the Subordinated Lenders
shall have agreed among themselves;
(d) subject to Clause 3.07, if any Charge is created as security
for the Subordinated Indebtedness then, immediately on the
creation thereof, the benefit of such Charge shall be
assigned or transferred in favour of the Facility Agent as
security for the Secured Indebtedness and any instrument or
agreement evidencing such Charge shall be deposited with the
Facility Agent;
(e) it shall require the Borrower to, and shall ensure that the
Borrower shall pay to the Facility Agent or as the Facility
Agent may direct any amounts which, if paid to such
Subordinated Lender, would be subject to the trust mentioned
in paragraph (c) above.
3.02 Proceedings for Winding-Up of Borrower. In any proceedings for the
compulsory or voluntary winding-up, liquidation or dissolution of the
Borrower (or any proceedings analogous thereto):
(a) the Facility Agent and the Lenders shall be entitled to
receive payment in full of the Secured Indebtedness before
the Subordinated Lenders shall be entitled to receive any
payment on account of the Subordinated Indebtedness or any
part thereof;
(b) the Subordinated Lenders agree that they will prove for the
full amount of their claims in respect of the Subordinated
Indebtedness and that in accordance with the trust mentioned
in Clause 3.01(c), any amounts payable to the Subordinated
Lenders in respect of the Subordinated Indebtedness shall be
applied in payment or satisfaction of the Secured
Indebtedness until the whole of the Secured Indebtedness
shall have been certified by the Facility Agent as having
been discharged and the remaining balance (if any) may be
applied towards payment of the amounts owing to the
Subordinated Lenders in respect of the Subordinated
Indebtedness, upon such terms as the Subordinated Lenders
shall have agreed among themselves.
3.03 Subordinated Loan Agreements. The Subordinated Lenders agree that:
(a) each and every Subordinated Loan Agreement now or hereafter
entered into shall be subject in every respect to the terms
of this Deed;
(b) insofar as the terms of any Subordinated Loan Agreement or
any transaction in connection therewith are or may be
inconsistent with the terms of this Deed, the terms
contained herein shall prevail;
(c) in respect of any Subordinated Loan Agreement proposed to be
entered into after the date hereof, the prior written
approval of the terms thereof shall first be obtained from
the Facility Agent;
(d) no amendment shall be made to any Subordinated Loan
Agreement except in writing and with the Facility Agent's
prior written approval of the terms thereof, such approval
not to be unreasonably withheld;
(e) immediately after the execution of any Subordinated Loan
Agreement, or any agreement for the amendment of any
Subordinated Loan Agreement, copies thereof shall be
delivered to the Facility Agent as evidence thereof;
(f) no repayment or prepayment of principal may be made by the
Borrower (or payment in respect thereof accepted by the
Subordinated Lenders) under any Committed Subordinated Loan
Agreement unless if and to the extent that, subject to
Clause 3.01(a)(ii) and the other provisions of this Deed,
contemporaneously with or immediately prior to such
repayment or prepayment to any Subordinated Lender, a
repayment or prepayment of the Loan in at least a rateable
amount is made by the Borrower under the Loan Agreement. For
these purposes, 'rateable amount' means an amount equal to
X% of the Loan, where 'X' is the proportion, expressed as a
percentage, that the amount of the proposed repayment or
prepayment under the relevant Committed Subordinated Loan
Agreement bears to the total principal amount outstanding
under that Committed Subordinated Loan Agreement.
3.04 Application. All monies and other property received by the Facility
Agent in respect of the Subordinated Indebtedness may be applied by
the Facility Agent in or towards satisfaction of the Secured
Indebtedness in such manner as the Facility Agent (acting on the
instructions of the Majority Lenders) may decide.
3.05 Permitted Payments. The Borrower shall be entitled to make payments
of principal and interest under and in accordance with the terms of
the AES Loan Agreement, the Anhui Liyuan Loan Agreement, the Wuhu
Loan Agreement and the arrangements relating to the other
Subordinated Indebtedness made pursuant to Clause 2.01(c) as
envisaged in clause 14 of the Loan Agreement provided that at the
relevant time no Event of Default or prospective Event of Default has
occurred and is continuing.
3.06 Directions and Authorisations. Each Subordinated Lender hereby
irrevocably:
(a) directs the Borrower to pay to the Facility Agent (or as the
Facility Agent may direct) any amounts which, if paid to
such Subordinated Lender would be subject to the trust
mentioned in Clause 3.01(c);
(b) authorises the Facility Agent, in the event of a compulsory
or voluntary winding up, liquidation or dissolution of the
Borrower (or any proceedings analogous thereto) to ask,
demand, sue or prove for, and take and receive, in the name
of such Subordinated Lender or otherwise, all amounts
payable to such Subordinated Lender on account of any
Subordinated Indebtedness owing by the Borrower, and the
Subordinated Lender further covenants that in such event at
the request of the Facility Agent, it will take all such
action and execute all such documents as the Facility Agent
may reasonable require in order to enable the Facility Agent
to recover such Subordinated Indebtedness or any part
thereof.
3.07 AES Security and CPIL Security. Notwithstanding any other provision
of this Deed:
(a) the AES Lender(s) shall be entitled to take the benefit of
Charges and other security from the Borrower as security for
the performance of the Borrower's obligations under the AES
Loan Agreement provided that the rights of the AES Lender(s)
in respect of such Charges or other security shall be
subordinated to, and in all respects shall rank in priority
after, the rights of the Agents, the Arranger, the
Co-Arrangers and the Lenders on the terms of this Deed and
the Priority Deed and provided further that each such Charge
or other security (and each document creating or evidencing
the same) shall be dated at least one day after, and (in
respect of each such document to be filed or registered)
shall be filed or registered on and with effect from a day
which is at least one day after, the date of the Charges,
other security and Security Documents in favour of the
Agent(s), the Arranger, the Co-Arrangers and the Lenders (or
any of them);
(b) AES (and any other AES Lender(s)) shall be entitled to
initiate enforcement proceedings under the AES Loan
Agreement or otherwise take action to foreclose any Charges
or other security granted as security therefor in accordance
with its respective terms with the consent of the Majority
Lenders (such consent being required only so long as any
amount remains to be lent under the Loan Agreement or the
Secured Indebtedness or any part thereof remains owing) and
in accordance with the terms of this Deed and the Priority
Deed provided that, in any event, any proceeds of such
enforcement shall be held and dealt with subject to the
terms and conditions of this Deed and the Priority Deed
provided further that, notwithstanding any of the foregoing,
AES may accelerate the due date of all obligations of the
Borrower under the AES Loan Agreement where the Lenders have
accelerated the repayment of the Loan pursuant to Clause
15.02(a) of the Loan Agreement);
(c) CPIL shall be entitled to take the benefit of Charges and
other security from the Borrower as security in connection
with the provision of the Guarantee (subject to the
provisions of the Guarantee) provided that the rights of
CPIL in respect of such Charges or other security shall be
subordinated to, and in all respects shall rank in priority
after, the rights of the Agents, the Arranger, the
Co-Arrangers and the Lenders on the terms of this Deed and
the Priority Deed;
(d) CPIL shall be entitled to initiate enforcement proceedings
under the CPIL Security Documents or otherwise take action
to foreclose any Charges or other security granted thereby
in accordance with its respective terms with the consent of
the Majority Lenders (such consent being required only so
long as any amount remains to be lent under the Loan
Agreement or the Secured Indebtedness or any part thereof
remains owing) and in accordance with the terms of this Deed
and the Priority Deed provided that, in any event, any
proceeds of such enforcement shall be held and dealt with
subject to the terms and conditions of this Deed and the
Priority Deed and provided further that each such Charge or
other security (and each document creating or evidencing the
same) shall be dated at least one day after, and (in respect
of each such document to be filed or registered) shall be
filed or registered on and with effect from a day which is
at least one day after, the date of the Charges, other
security and Security Documents in favour of the Agent(s),
the Arranger, the Co-Arrangers and the Lenders (or any of
them).
4. ACKNOWLEDGEMENT BY BORROWER
The Borrower acknowledges the subordination of the Subordinated
Indebtedness and warrants and undertakes throughout the continuance
of this Deed and so long as the Secured Indebtedness or any part
thereof remains owing that:
(a) it will make all payments due in respect of the Subordinated
Indebtedness in accordance with the provisions of this Deed
and it will comply with all the other provisions of this
Deed and it will not do, take part in or take the benefit of
anything which would or may breach the provisions of this
Deed;
(b) it will promptly notify the Facility Agent whenever it
incurs any Subordinated Indebtedness;
(c) it has no notice of any prior disposal of or Charge over the
Subordinated Indebtedness or any part thereof to any other
person other than any disposal pursuant to Clause 7.03.
5. CONTINUING SECURITY
This Deed shall be a continuing security and shall remain in full
force and effect until the Secured Indebtedness has been paid in
full, notwithstanding the insolvency, bankruptcy or liquidation or
any incapacity or change in the constitution or status of any of the
Sponsors, the Subordinated Lenders, 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 Facility Agent or any Lender.
6. REPRESENTATIONS AND WARRANTIES
6.01 Representations and Warranties. Each of the Sponsors and the
Subordinated Lenders represents and warrants severally and for
itself to the Facility Agent that:
(a) it has full power, authority and legal right to enter into
and engage in the transactions contemplated by this Deed and
has taken or obtained all necessary corporate and other
action to authorise the execution and performance of this
Deed;
(b) this Deed constitutes its legal, valid and binding
obligations enforceable in accordance with its terms;
(c) neither the execution of this Deed nor the performance by it
of any of its obligations or the exercise of any of its
rights hereunder will conflict with or result in a breach of
any law, regulation, judgment, order, authorisation,
agreement or obligation applicable to it or cause any
limitation placed on it to be exceeded or, except as
indicated in Clause 3.07, result in the creation of or
oblige it to create a Charge in respect of the Subordinated
Indebtedness;
(d) all authorisations required from any governmental or other
authority or from any of its shareholders or creditors for
or in connection with the execution, validity and
performance of this Deed have been obtained and are in full
force and effect;
(e) it is not necessary in order to ensure the validity,
enforceability or admissibility in evidence in proceedings
of this Deed in its country of incorporation or any other
relevant jurisdiction that it or any other document be filed
or registered with any authority in its country of
incorporation or elsewhere or that any tax be paid in
respect thereof except as set out in appendix 2 of the Loan
Agreement;
(f) the Sponsors and the Subordinated Lenders are generally
subject to civil and commercial law and to legal proceedings
and neither the Sponsors and the Subordinated Lenders nor
any of their assets or revenues are entitled to any immunity
or privilege (sovereign or otherwise) from any set-off,
judgment, execution, attachment or other legal process;
(g) no material litigation, arbitration or administrative
proceeding is currently taking place or pending or, to the
best of its knowledge, information and belief, threatened
against it or its assets or revenues.
6.02 Additional Representations and Warranties. Each of the Subordinated
Lenders additionally represents and warrants severally and for
itself to the Facility Agent that:
(a) the Subordinated Loan Agreements in existence at the date
hereof are valid and in full force and effect and the
provisions thereof have been fully complied with and the
Borrower is not in default in respect of any provision
thereof;
(b) except as provided in Clause 7.03, each Subordinated Lender
is the sole beneficial owner of the Subordinated
Indebtedness owing to it and no Charge exists over all or
any part of the Subordinated Indebtedness (except as created
under or pursuant to this Deed).
6.03 Continuing Representation and Warranty. Each of the Sponsors and the
Subordinated Lenders also represents and warrants to and undertakes
with the Facility Agent severally and for itself that the foregoing
representations and warranties set out in Clause 6.01 (in the case of
the Sponsors and the Subordinated Lenders) and Clause 6.02 (in the
case of the Subordinated Lenders only) with respect to it will be
true and accurate throughout the continuance of this Deed with
reference to the facts and circumstances subsisting from time to
time, provided that the representation and warranty in Clause 6.01(b)
shall (where applicable) be subject (as to matters of law only) to
appendix 3 of the Loan Agreement.
7. UNDERTAKINGS
7.01 Affirmative undertakings. Each of the Sponsors severally and for
itself undertakes and agrees with the Facility Agent throughout the
continuance of this Deed and so long as any sum remains owing
hereunder that it will, unless the Majority Lenders otherwise agree
in writing:
(a) supply to the Facility Agent in sufficient number for each
Lender:
(i) as soon as they are available, but in any event
within one hundred and eighty (180) days after the
end of each of its financial years, copies of its
financial statements in respect of such financial
year (including a profit and loss account and
balance sheet) audited and certified without
qualification by (a) in the case of AES and CPIL, a
firm of independent accountants acceptable to the
Facility Agent and (b) in the case of Anhui Liyuan
and Wuhu, an independent public accountant
acceptable to the Facility Agent;
(ii) as soon as they are available, but in any event
within one hundred and twenty (120) days after
the end of each half of each of its financial
years, copies of its unaudited financial
statements (including a profit and loss account
and balance sheet) prepared on a basis consistent
with its audited financial statements together
with a certificate signed by its principal
financial officer to the effect that such financial
statements are true in all material respects
and present fairly its financial position as
at the end of, and the results of its operations
for, such half-year period;
(iii) promptly on request, such additional financial or
other information relating to it as the Facility
Agent may from time to time reasonably request;
(b) keep proper records and books of account in respect of its
business and permit the Facility Agent and/or any
professional consultants appointed by the Facility Agent at
all reasonable times to inspect and examine its records and
books of account;
(c) promptly inform the Facility Agent of the occurrence of any
Event of Default or prospective Event of Default;
(d) maintain its corporate existence and conduct its business in
a proper and efficient manner and in compliance with all
laws, regulations, authorisations, agreements and
obligations applicable to it and pay all taxes imposed on it
when due;
(e) procure that there is no change of the parties to the Joint
Venture Contract or to the ownership or control (direct or
indirect) of the Borrower and each Sponsor save in
accordance with clause 13.01(f) of the Loan Agreement;
(f) no amendment or supplement shall be made to the Joint
Venture Contract or the articles of incorporation of the
Borrower;
(g) ensure that its obligations under this Deed at all times
rank at least pari passu with all its unsecured obligations
save for obligations that are mandatorily preferred by law;
(h) punctually pay all sums due from it and otherwise comply
with its obligations under this Deed and the other Security
Documents to which it is a party;
(i) do or permit to be done every act or thing which the
Facility Agent may from time to time require for the purpose
of enforcing the rights of the Facility Agent hereunder;
(j) except as expressly permitted by the terms of this Deed not
do or knowingly cause or permit to be done anything which
may in any way depreciate, jeopardise or otherwise prejudice
the value of the Facility Agent's security hereunder.
7.02 Subordination Undertakings. Each Subordinated Lender undertakes and
agrees with the Facility Agent throughout the continuance of this
Deed and so long as the Secured Indebtedness or any part thereof
remains owing that it will, unless the Majority Lenders otherwise
agree in writing:
(a) not create or attempt or agree to create or permit to arise
or exist any Charge over all or any part of the Subordinated
Indebtedness or any interest therein or, subject to Clause
7.03, otherwise assign, deal with or dispose of all or any
part of the Subordinated Indebtedness (except under or
pursuant to this Deed);
(b) subject to the provisions of this Deed, at all times remain
the beneficial owners of the Subordinated Indebtedness;
(c) not vary the liability of the Borrower in relation to the
Subordinated Indebtedness;
(d) upon the request of the Facility Agent, supply to the
Facility Agent such information regarding the amount and
terms of the Subordinated Indebtedness as the Facility Agent
may require;
(e) subject to the provisions of this Deed, duly observe and
perform all its obligations under the Subordinated Loan
Agreements;
(f) do or permit to be done every act or thing which the
Facility Agent may from time to time require for the purpose
of enforcing the rights of the Facility Agent hereunder;
(g) not do or knowingly cause or permit to be done anything
which may in any way depreciate, jeopardise or otherwise
prejudice the value of the Facility Agent's security
hereunder;
(h) ensure that each date for repayment of principal and payment
of interest under the Committed Subordinated Loan Agreement
to which it is a party shall be an Interest Payment Date;
(i) promptly inform the Facility Agent of any breach of this
Deed known to it;
(j) maintain its corporate existence and conduct its business in
a proper and efficient manner and in compliance with all
laws, regulations, authorisations, agreements and
obligations applicable to it and pay all taxes imposed on it
when due;
(k) ensure that its obligations under this Deed at all times
rank at least pari passu with all its unsecured obligations
save for obligations that are mandatorily preferred by law;
(l) punctually pay all sums due from it and otherwise comply
with its obligations under this Deed and the other Security
Documents (if any) to which it is a party.
7.03 AES Loan Agreement. So long as the AES Loan Agreement remains a
Subordinated Loan Agreement, AES may (i) sub-participate all or any
part of its interest under the AES Loan Agreement and (ii) assign all
or any of its rights under the AES Loan Agreement (with the Facility
Agent's prior written consent, such consent not to be unreasonably
withheld) provided that each such assignee shall accede to this Deed
as a Subordinated Lender and, for avoidance of doubt, not as a
Sponsor, by executing and delivering to the Facility Agent an
accession deed in form and substance acceptable to the Facility
Agent. AES shall not transfer or dispose of all or any part of its
obligations to advance or make available funds to the Borrower under
the AES Loan Agreement or purport to do so.
8. BORROWER'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
8.01 Representations and Warranties. The Borrower represents and warrants
to the Facility Agent in the terms of Clause 6.02(a) and also
represents, warrants and undertakes to the Facility Agent that such
representation and warranty will be true and accurate from time to
time throughout the continuance of this Deed with reference to the
facts and circumstances subsisting from time to time.
8.02 Undertakings. The Borrower undertakes and agrees with the Facility
Agent in the terms of Clause 7.02(d) to (g) inclusive.
9. CLAIMS BY SUBORDINATED LENDERS
Each Subordinated Lender severally represents to and undertakes with
the Facility Agent that it has not taken and will not take any
security in respect of its liability under this Deed whether from the
Borrower or any other person. So long as any sum remains owing by the
Borrower to the Facility Agent or the Lenders, no Subordinated Lender
shall exercise any right of subrogation, contribution or any other
rights of a surety or enforce any security or other right or claim
against the Borrower (whether in respect of its liability under this
Deed or otherwise) or any other person who has guaranteed or given
any security in respect of the Secured Indebtedness or, subject to
the provisions of this Deed, claim in the insolvency or liquidation
of the Borrower or any such other person in competition with the
Facility Agent or the Lenders. If any Subordinated Lender receives
any payment or benefit in breach of this Clause, it shall hold the
same upon trust for the Facility Agent as a continuing security for
the Secured Indebtedness.
10. TAXES AND OTHER DEDUCTIONS
All sums payable by the Sponsors and the Subordinated Lenders 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 Sponsors or the Subordinated Lenders or any other
person are required by any law or regulation to make any deduction or
withholding (on account of tax (other than an Excluded Tax) or
otherwise) from any payment for the account of any Lender or the
Facility Agent, the relevant Sponsors or Subordinated Lenders shall,
together with such payment, pay such additional amount as will ensure
that such Lender or the Facility Agent 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 Sponsors and the
Subordinated Lenders shall promptly forward to the Facility Agent
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.
11. COSTS, CHARGES AND EXPENSES
Each of the Sponsors and the Subordinated Lenders and the Borrower
shall from time to time forthwith on demand pay to or reimburse the
Facility Agent and the Lenders 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 Facility Agent or any
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 Facility Agent or any
Lender in exercising any of its or their rights or powers
hereunder or in suing for or seeking to recover any sums due
hereunder or otherwise preserving or enforcing its or their
rights hereunder or in defending any claims brought against
it or them in respect of this Deed or in releasing or
re-assigning this Deed upon payment of all monies hereby
secured and until payment of the same in full, all such
costs, charges and expenses shall be secured by this Deed.
The liability of such Sponsor and each Subordinated Lender in respect
of amounts due under this Clause 11 shall be borne severally by them
in the proportions of their Relevant Percentages, provided, that in
the event that any amount becomes payable to the Facility Agent
and/or the Lenders under this Clause 11 solely by virtue of the
action or inaction of certain only of the Sponsors or the
Subordinated Lenders, those relevant Sponsors and/or Subordinated
Lenders shall bear sole liability and responsibility in respect of
such amount so payable and where there is more than one such Sponsor
or Subordinated Lender, so liable and responsible, such liability and
responsibility shall be borne jointly and severally among them. To
the extent practicable, the Facility Agent shall consult the relevant
Sponsor or Subordinated Lender and the Borrower before incurring any
major expenditure.
12. INDEMNITY
12.01 Sponsors' and Subordinated Lenders' General Indemnity. Each Sponsor
and Subordinated Lender shall indemnify the Facility Agent and each
Lender against all losses, liabilities, damages, costs and expenses
incurred by it or them in the execution or performance of the terms
and conditions hereof and against all actions, proceedings, claims,
demands, costs, charges and expenses which may be incurred, sustained
or arise in respect of the non-performance or non-observance of any
of the undertakings and agreements on the part of that Sponsor or
Subordinated Lender herein contained or in respect of any matter or
thing done or omitted by it relating in any way whatsoever to the
Subordinated Indebtedness of that Subordinated Lender.
12.02 Borrower's General Indemnity. The Borrower shall indemnify the
Facility Agent and each Lender against all losses, liabilities,
damages, costs and expenses incurred by it or them in the execution
or performance of the terms and conditions hereof and against all
actions, proceedings, claims, demands, costs, charges and expenses
which may be incurred, sustained or arise in respect of the
non-performance or non-observance of any of the undertakings and
agreements on the part of the Sponsors, the Subordinated Lenders and
the Borrower herein contained or in respect of any matter or thing
done or omitted relating in any way whatsoever to the Subordinated
Indebtedness.
12.03 Currency Indemnity. If an amount due to the Facility Agent from the
Subordinated Lenders, the Sponsors and/or the Borrower in one
currency (the 'first currency') is received by the Facility Agent in
another currency (the 'second currency'), the obligations of
Subordinated Lenders, the Sponsors and/or the Borrower, as the case
may be, to the Facility Agent in respect of such amount shall only be
discharged to the extent that the Facility Agent may purchase the
first currency with the second currency in accordance with normal
banking procedures. If the amount of the first currency which may be
so purchased (after deducting any costs of exchange and any other
related costs) is less than the amount so due, the relevant
Subordinated Lender, Sponsor or the Borrower, as the case may be,
shall indemnify the Facility Agent against the shortfall. This
indemnity shall be an obligation of the Subordinated Lenders,
Sponsors and the Borrower independent of and in addition to its other
obligations under this Deed.
12.03 Payment and Security. The Facility Agent may retain and pay out of
any money in the Facility Agent's hands all sums necessary to effect
the indemnity contained in this Clause and all sums payable by the
Sponsors, the Subordinated Lenders and the Borrower under this Clause
shall form part of the monies hereby secured.
13. FURTHER ASSURANCE
13.01 Further Assurance. Each of the Sponsors, the Subordinated Lenders and
the Borrower shall at any time and from time to time (whether before
or after the security hereby created shall have become enforceable)
execute such further legal or other mortgages, charges or assignments
and do all such transfers, assurances, acts and things as the
Facility Agent may require over or in respect of the Subordinated
Indebtedness to secure all monies, obligations and liabilities hereby
covenanted to be paid or hereby secured or for the purposes of
perfecting and completing any assignment of the Facility Agent's
rights, benefits or obligations hereunder and the Sponsors, the
Subordinated Lenders and the Borrower shall also give all notices,
orders and directions which the Facility Agent may require.
13.02 Enforcement of Facility Agent's Rights. Each of the Sponsors, the
Subordinated Lenders and the Borrower will do or permit to be done
everything which the Facility Agent may from time to time require to
be done for the purpose of enforcing the Facility Agent's rights
hereunder and will allow the names of the Sponsors, the Subordinated
Lenders and the Borrower (as the case may be) to be used as and when
required by the Facility Agent for that purpose.
14. EVIDENCE OF DEBT
Any statement of account purporting to show an amount due from the
Borrower under the Loan Agreement or any Security Document to which
it is a party or from any Sponsor or Subordinated Lender under this
Deed and signed as correct by a duly authorised officer of the
Facility Agent shall, in the absence of manifest error, be conclusive
evidence of the amount so due.
15. SUSPENSE ACCOUNT
The Facility Agent may place and keep any monies received by virtue
of this Deed (whether before or after the insolvency, bankruptcy or
liquidation of any of the Sponsors, Subordinated Lenders or the
Borrower) to the credit of a suspense account for so long as the
Facility Agent may think fit in order to preserve the rights of the
Facility Agent or any Lender to sue or prove for the whole amount of
its claims against the Sponsors, the Subordinated Lenders, the
Borrower or any other person.
16. WAIVER AND SEVERABILITY
No failure or delay by the Facility Agent or any 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.
17. MISCELLANEOUS
17.01 Continuing Obligations. The liabilities and obligations of the
Sponsors, the Subordinated Lenders and the Borrower under this Deed
shall remain in force notwithstanding any act, omission, event or
circumstance whatsoever, until full, proper and valid payment of the
Secured Indebtedness.
17.02 Protective Clauses. Without limiting Clause 17.01, neither the
liability of the Sponsors, the Subordinated Lenders or the
Borrower nor the validity or enforceability of this Deed shall
be prejudiced, affected or discharged by:
(a) the granting of any time or indulgence to the Borrower or
any other person;
(b) any variation or modification of the Loan Agreement, any of
the Security Documents or any other document referred to
therein;
(c) the invalidity or unenforceability of any obligation or
liability of the Borrower under the Loan Agreement or any of
the Security Documents to which it is a party;
(d) any invalidity or irregularity in the execution of the Loan
Agreement or this Deed or any of the other Security
Documents;
(e) any deficiency in the powers of the Borrower to enter into
or perform any of its obligations under the Loan Agreement
or any of the Security Documents to which it is party or any
irregularity in the exercise thereof or any lack of
authority by any person purporting to act on behalf of the
Borrower;
(f) the insolvency, bankruptcy or liquidation or any incapacity,
disability or limitation or any change in the constitution
or status of the Borrower or any of the Sponsors or
Subordinated Lenders;
(g) any other Security Document, Charge, guarantee or other
security or right or remedy being or becoming held by or
available to the Facility Agent or any Lender or by any of
the same being or becoming wholly or partly void, voidable,
unenforceable or impaired or by the Facility Agent or any
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 Facility Agent or any Lender
may now or hereafter have from or against the Borrower or
any other person;
(h) any waiver, exercise, omission to exercise, compromise,
renewal or release of any rights against the Borrower or any
other person or any compromise, arrangement or settlement
with any of the same;
(i) any act, omission, event or circumstance which would or may
but for this provision operate to prejudice, affect or
discharge this Deed or the liability of the Sponsors and the
Subordinated Lenders or the Borrower hereunder,
and each of the Subordinated Lenders and Sponsors hereby consents to
all acts and omissions of any Agent and the Lenders pertaining to the
above.
17.03 Binding Nature of Deed. Each of the Sponsors and the Subordinated
Lenders agrees to be bound by this Deed notwithstanding that any
other person who was intended to sign or be bound by this Deed fails,
for any reason, so to sign or be bound or that this Deed is for any
reason invalid or unenforceable against such person.
17.04 Release of Sponsors/Subordinated Lenders. Without prejudice to the
generality of Clause 17.02, the Facility Agent or any Lender may
release any of the Sponsors and/or the Subordinated Lenders from
liability under this Deed or vary or modify the obligations of or
grant any time or indulgence to or make any other arrangements with
any of the Sponsors and/or the Subordinated Lenders without affecting
or discharging its rights against the other Sponsors and/or
Subordinated Lenders.
17.05 Unrestricted Right of Enforcement. This Deed may be enforced without
the Facility Agent or any Lender first having recourse to any other
security or rights or taking any other steps or proceedings against
the Sponsors, the Subordinated Lenders, the Borrower or any other
person or may be enforced for any balance due after resorting to any
one or more other means of obtaining payment or discharge of the
monies obligations and liabilities hereby secured.
17.06 Discharges and Releases. Notwithstanding any discharge, release or
settlement from time to time between the Facility Agent or any Lender
and the Sponsors, the Subordinated Lenders or the Borrower, if any
security, disposition or payment granted or made to the Facility
Agent or any Lender in respect of the Secured Indebtedness by the
Sponsors, the Subordinated Lenders, 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 Facility Agent shall be entitled hereafter to
enforce this Deed as if no such discharge, release or settlement had
occurred.
17.07 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 the Facility Agent.
18. ASSIGNMENT
18.01 The Sponsors, the Subordinated Lenders and the Borrower.
Subject to Clause 7.03, none of the Sponsors, the Subordinated
Lenders and the Borrower shall assign any of their rights hereunder.
18.02 The Lenders. The Lenders may assign or grant participations in all or
any part of their rights under this Deed and make disclosures in
accordance with the provisions of clause 22 of the Loan Agreement but
as if references therein to the Borrower were references to the
Sponsors, the Subordinated Lenders or the Borrower (as the case may
be).
19. NOTICES
19.01 Delivery. Each notice, demand or other communication to be given or
made under this Deed shall be in writing and delivered or sent to the
relevant party at its address or telex number or fax number set out
below (or such other address or telex number or fax number as the
addressee has by five (5) days' prior written notice specified to the
other party):
To the AES China Holding Company (L) Limited
Subordinated c/o AES China Generating Co. Ltd.
9/F., Allied Capital Resources Building
32-38 Ice House Street
Central
Hong Kong
Fax Number: (852) 2530 1673
Attention : Jeffery A. Safford,
Chief Financial Officer
Anhui Liyuan Electric Power Development
Company Limited
No.415 Wuhu Road
Hefei
Anhui Province
People's Republic of China
Fax Number: (0551) 363 7642
Attention : Long Wen Ming/Suan Jie/Chen
Liang Bao
China Power International Holding Limited
Suite 5306, 53/F, Central Plaza
18 Harbour Road
Wanchai
Hong Kong
Fax Number: (852) 2802 3922
Attention : Zhao Xin Yan/Wang Zi Chao
Wuhu Energy Development Company
Commercial Office Building
Huangshan West Road
Wuhu
Anhui Province
People's Republic of China
Fax Number: (0553) 382 3224
Attention : Zhai Dao Ping
To the Borrower: Wuhu Shaoda Electric Power Development Company Limited
Commercial Office Building
West Huangshan Road
Wuhu
Anhui Province
People's Republic of China
Fax Number: (0553) 382 3224
Attention : Zhai Dao Ping
To the Facility CCIC Finance Limited
Agent: 38th Floor
Bank of China Tower
1 Garden Road
Central
Hong Kong
Telex Number: 61931
Answerback : CCICX HX
Fax Number : (852) 2877 2105
Attention : Loans Administration Department
19.02 Deemed Delivery. Any notice, demand or other communication so
addressed to the relevant party shall be deemed to have been
delivered (a) if given or made by letter, when actually delivered to
the relevant address; (b) if given or made by telex, when despatched
with confirmed answerback and (c) if given or made by fax, when
despatched.
20. GOVERNING LAW AND JURISDICTION
20.01 Law. This Deed and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with
the laws of England.
20.02 Jurisdiction. Each of the Sponsors, the Subordinated Lenders and the
Borrower agrees that any legal action or proceeding arising out of or
relating to this Deed may be brought in the courts of England and
irrevocably submits to the non-exclusive jurisdiction of such courts.
20.03 Process Agent. Each of the Sponsors, the Subordinated Lenders and the
Borrower irrevocably appoints Messrs. Rowe & Maw (attention: Mr.
Bernd Ratzke, Ref 26866/0001) of 20 Blackfriars Lane, London EC4V
6HT, England as their agent to receive and acknowledge on their
behalf service of any writ, summons, order, judgment or other notice
of legal process in England. If for any reason the agent named above
(or its successor) no longer serves as agent of any Sponsor,
Subordinated Lender or the Borrower for this purpose, the relevant
Sponsor, Subordinated Lender or the Borrower (as the case may be)
shall promptly appoint a successor agent satisfactory to the Facility
Agent and notify the Facility Agent thereof provided that until the
Facility Agent receives such notification, it shall be entitled to
treat the agent named above (or its said successor) as the agent of
such Sponsor, Subordinated Lender and/or the Borrower (as the case
may be) for the purposes of this Clause. The Sponsors, the
Subordinated Lenders and the Borrower agree that any such legal
process shall be sufficiently served on them 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 Sponsors, the
Subordinated Lenders and the Borrower.
20.04 No Limitation on Right of Action. Nothing herein shall limit the
right of the Facility Agent and the Lenders to commence any legal
action against the Sponsors, the Subordinated Lenders or the Borrower
and/or their 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.
20.05 Waiver; Final Judgment Conclusive. Each of the Sponsors, the
Subordinated Lenders and the Borrower irrevocably and unconditionally
waives any objection which it may now or hereafter have to the choice
of England as the venue of any legal action arising out of or
relating to this Deed. The Sponsors, the Subordinated Lenders and the
Borrower also agree that a final judgment against them 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 their indebtedness.
20.06 Waiver of Immunity. Each of the Sponsors, the Subordinated Lenders
and the Borrower irrevocably waives any immunity to which it or its
property may at any time be or become entitled, whether characterised
as sovereign immunity or otherwise, from any set-off or legal action
in England or elsewhere, including immunity from service of process,
immunity from jurisdiction of any court or tribunal, and immunity of
any of its property from attachment prior to judgment or from
execution of a judgment.
IN WITNESS whereof the Sponsors, the Subordinated Lenders and the Borrower have
executed this Deed on the day and year first above written.
THE SPONSORS AND THE SUBORDINATED LENDERS
- -----------------------------------------
THE COMMON SEAL of )
AES CHINA HOLDING COMPANY )
(L) LIMITED ) /s/Edward C. Hall, III
was hereunto affixed ) /s/Jeffery A. Safford
in the presence of: )
[Signature Illegible]
EXECUTED as, and DELIVERED as, a Deed )
by ANHUI LIYUAN ELECTRIC POWER )
DEVELOPMENT COMPANY LIMITED ) [Signature Illegible]
)
acting by its authorised signatory )
in the presence of: )
/s/David W. Platt
David W. Platt
Solicitor
Hong Kong
THE COMMON SEAL of )
CHINA POWER INTERNATIONAL )
HOLDING LIMITED ) [Signature Illegible]
was hereunto affixed )
in the presence of: )
/s/David W. Platt
David W. Platt
Solicitor
Hong Kong
EXECUTED as, and DELIVERED as, a Deed )
by WUHU ENERGY DEVELOPMENT )
COMPANY ) [Signature Illegible]
acting by its authorised signatory )
in the presence of: )
/s/David W. Platt
David W. Platt
Solicitor
Hong Kong
THE BORROWER
- ------------
EXECUTED as, and DELIVERED as, a Deed )
by WUHU SHAODA ELECTRIC POWER )
DEVELOPMENT COMPANY LIMITED )
) [Signature Illegible]
acting by its authorised signatory )
in the presence of: )
/s/David W. Platt
David W. Platt
Hong Kong
THE FACILITY AGENT
- ------------------
SIGNED for and on behalf of )
CCIC FINANCE LIMITED ) [Signature Illegible]
by )
TO ALL TO WHOM these presents shall come, I, MARK JONATHAN ROBERTS Notary Public
by authority duly admitted and practising at do hereby certify that on the 14TH
day of MAY 1996 at 4TH FLOOR ALEXANDRA HOUSE, HONG KONG aforesaid there
personally came before me JEFFERY ATWOOD SAFFORD and EDWARD C. HALL III the
subscribing witnesses to the foregoing instrument who declared and said that
they were present and did see the affixation of the Common Seal of AES CHINA
HOLDING COMPANY (L) LIMITED thereto in accordance with the Memorandum and
Articles of Association of AES CHINA HOLDING COMPANY (L) LIMITED.
IN FAITH AND TESTIMONY whereof I have hereunto set my hand and seal of office at
HONG KONG this 14TH day of MAY in the year one thousand nine hundred and
ninety-SIX (1996).
/s/ Mark Roberts
-----------------------
Signature
Mark Jonathan Roberts
Notary Public
3rd - 6th Floors
Alexandra House
Hong Kong
Undertaking and Subordination Deed - AES China Holding Co. Ltd., Anhui Liyuan Electric Power Development Co. Ltd., China Power International Holding Ltd., Wuhu Energy Development Co., Wuhu Shaoda Electric Power Development Co. Ltd., and CCIC Finance Ltd.
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