Exhibit 10.43
Information contained herein, marked with [***], is being filed pursuant to a
request for confidential treatment.
AES LOAN CONTRACT
FOR HEFEI ZHONGLI ENERGY COMPANY, LTD.
This AES LOAN CONTRACT (this "Contract") is made and entered into as of
----------- 1996 by and between Hefei Zhongli Energy Company Limited ("the
Borrower"), a Sino-foreign cooperative joint venture enterprise organized and
existing under the laws of the People's Republic of China (Business License
number is --------) with its registered office at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and AES Chigen Company(L), Ltd (Company No: LL00408) ("the
Lender"), a Labuan company wholly-owned by AES CHINA GENERATING COMPANY. LTD.
with its China office at 3/F Jinqiao ▇▇▇▇▇ #1(A), ▇▇▇▇ ▇▇▇ Men ▇▇▇ ▇▇▇▇▇,
Beijing, China.
1. THE LOAN.
Subject to the terms and conditions of this Loan Contract, the Lender
agrees to make to the Borrower a loan in an aggregate amount not to exceed US$
8,000,000 such sum shall include interest accrued during construction as
provided in Section 3 hereof, (the "Loan"). This Loan is available for drawdowns
from time to time between the Effective Date as defined in Clause 24 of this
Contract and the "Availability Termination Date", which is the earlier of the
Guarantee Completion Date of the Facility or the actual Project Completion Date
as each term is defined in the EPC Contract Dated -------- between Anhui Mingda
Electric Power EPC Contract Company, Ltd., Anhui Liyuan-AES Power Company
Limited and Hefei Zhongli Energy Company Limited. In this Loan Contract, the
"Available Loan" means the aggregate amount of the Loan available for drawdown
by the Borrower from time to time prior to the Availability Termination Date
less the sum of (i) the amount of each drawdown which has been made under this
Loan Contract, (ii) the aggregate amount of the interest accrued on the
Outstandings (as defined in Section 2(a)) as at such time, and iii) all other
fees due to the Lender as defined in Section 3. Subject to the conditions set
forth in Section 6, drawdowns under the Loan shall be made.
(a) upon completion of the relevant milestone as set in the drawdown schedule
attached as Exhibit B;
(b) not less than 15 Banking Days before the proposed date for the making of
each draw down, the Lender has received from the Borrower a notice of
drawdown substantially in the form of Exhibit A (the "Notice of Drawdown"),
the receipt of such Notice of Drawdown shall oblige the Borrower to borrow
the amount of the drawdown requested therein on the date stated therein;
(c) the proposed amount of each drawdown is an amount not less than US$800,000
and an integral multiple of US$10,000 which is less than or equal to the
Available Loan;
(d) in the case of the first drawdown, such drawdown must be made within three
months of the Effective Date; and
(e) each drawdown shall be made on a day on which banks are authorized to open
for business in Hong Kong and New York, New York, the United States of
America (a "Banking Day").
2. MATURITY.
(a) The Borrower shall repay the aggregate outstanding principal amount
of the Loan (the "Outstandings") in accordance with the amortization schedule
attached as Exhibit C. In any event, the Borrower shall repay the Outstandings
in full on a date which falls ten (10) years after the Effective Date of this
Contract.
(b) Subject to Section 2 (d), the Borrower may, if it has given to the
Lender not less than one month's prior written notice to that effect, cancel the
whole or any part (being an amount or integral multiple of US$1,000,000) of the
Available Loan.
(c) Subject to section 2(d), the Borrower shall have the right to
prepay all or any part of the Outstandings at any time after the Availability
Termination Date. Each of such optional prepayments shall be in an amount not
less than US$ 800,000 and shall be made with at least three months prior written
notice to the Lender. Without prejudice to the foregoing, the Borrower shall
only prepay on the then immediately succeeding Payment Date and such prepayment
shall include all interest accrued on such portion of the Outstandings being
repaid. Any portion of the Outstandings prepaid may not be reborrowed. The
prepayments of the Outstandings will be applied to satisfy the Borrower's
repayment obligations under Section 2 (a) in inverse order of maturity to the
then remaining installments of principal to become due as set forth in Exhibit
C.
(d) The Borrower may only serve a notice of cancellation or prepayment
under Sections 2 (b) and 2 (c) respectively unless it has demonstrated to the
satisfaction of the Lender that there are then sufficient committed funds
available to the Borrower on an unsecured basis to meet all its needs in respect
of financing the construction and start-up of the Facility (as such term is
defined in Section 7 (a)).
(e) Each notice of cancellation or, as the case may be, prepayment
shall specify the date on which such cancellation or, as the case may be,
prepayment is to be made and the amount to be cancelled or, as the case may be,
to be prepaid and shall oblige the Borrower to make such cancellation or, as the
case may be, prepayment on such date Provided that the Borrower may only specify
a Payment Date in respect of any prepayment to be made.
3. INTEREST AND FEES.
(a) INTEREST AND FEES: During the period beginning on the date of the
first drawdown hereunder and ending on the Availability Termination Date,(I)
interest shall accrue on the Outstandings from day to day at the rate of [***]
per annum and (ii) the Management Fee as defined Section 3(b) shall accrue on
the Outstandings from day to day as specified in Section 3(b). On the
Availability Termination Date, the Lender shall calculate the aggregate amount
of such interest and the Management Fee accrued as at the Availability
Termination Date ( the "Availability Period Interest and Management Fee"). With
effect from the Availability Termination Date, the amount of the Availability
Period Interest and Management Fee shall be consolidated with the amount of the
Outstandings as at the Availability Termination Date and the sum of both amounts
shall thereafter be treated as the Outstandings. With effect from the
Availability Termination Date, the Borrower shall pay interest on the
Outstandings calculated aforeesaid in this Section 3(a) from time to time at the
rate of [***] per annum plus the Management Feeas specified in Section 3(b).
Interest and Management Fee on the Outstandings shall be computed on the basis
of the actual number of days elapsed in a year of 360 days. Interest payments
shall be payable semiannually in arrears on the first Banking Day of each
January, and July starting from the second such date to occur after the
Availability Termination Date and on final maturity of the Loan (each such date,
a "Payment Date"). The Lender shall calculate and notify the Borrower of the
actual amount of each interest and management fee payment not less than 15 days
prior to each Payment Date.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
(b) MANAGEMENT FEE: The Borrower shall pay to the Lender a management
fee of [***] per annum on the Outstandings from time to time provided in Section
3(a).
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
(c) CLOSING FEE: The Borrower shall pay to the Lender a financial
closing fee of [***] on the date of the first drawdown of this Loan.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
4. METHOD OF PAYMENT.
All sums, including all principal, interest and fees, payable to the
Lender shall be paid in US Dollars not later than 10:00 a.m. Beijing time on
each Payment Date to the account of the Lender in Hong Kong (No. -------- ) at
Citibank, N.A., or such other account within or outside of China as the Lender
notifies to the Borrower for this purpose.
5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents as of this date and during the term of this
Loan Contract that:
(a) the Borrower is a Sino-foreign cooperative joint venture enterprise
duly established as a legal reason and existing in good standing under the laws
of the People's Republic of China;
(b) the execution, delivery and performance of this Loan Contract, and
each other document delivered in connection herewith and the execution of the
Borrower's rights hereunder or thereunder are within the Borrower's power, have
been duly authorized by all necessary legal corporate or other action, and do
not contravene any law or any contractual restriction binding on the Borrower;
(c) this Loan Contract is, and each other document delivered in
connection herewith or therewith when executed will be legal, valid and binding
obligations of the Borrower and are enforceable in accordance with their
respective terms;
(d) all governmental approvals necessary for the execution of this Loan
Contract, and each other document delivered in connection herewith have been
obtained and all governmental approvals necessary for the performance and
enforceability hereof and thereof shall have been obtained prior to and shall be
in full force and effect on the date of each drawdown hereunder;
(e) the obligations of the Borrower hereunder and under any other
document executed in connection herewith or therewith constitute the direct,
unconditional and general obligations of the Borrower and the sum of all of the
Borrower' other indebtedness does not exceed RMB two hundred fifty thousand
except the loans agreed to by the Lender as specified in Appendix D hereto;
(f) the Borrower is not in default under any agreement or obligation to
which it is a party or by which it may be bound by reason of its execution,
delivery or performance of this Loan Contract; and
(g) under the laws of China in force at the date hereof, withholding
tax of ten per cent. (10%) is required to be levied in respect of any interest
payment it may make hereunder;
(h) under the laws of China in force at the date hereof, the claims of
the Lender against the Borrower under this Loan Contract will rank at least pari
passu with the claims of all its other unsecured creditors save those whose
claims are preferred solely by any bankruptcy, insolvency, liquidation or other
similar laws of general application;
(i) in any proceedings taken in China in relation to this Loan Contract
and any other document executed in connection herewith, the choice of English
law as the governing law of this Loan Contract and any such other document and
any judgment obtained in England will be recognized and enforced, subject to the
provisions of the Civil Procedure Law of China;
(j) under the laws of China in force at the date hereof, it is not
necessary that this Loan Contract or any other document executed in connection
herewith be filed, recorded or enrolled with any court or other authority in
China or that any stamp, registration or similar tax be paid on or in relation
to this Loan Contract save for:
(i) the Borrower's compliance with the Foreign Debt Registration
procedures in relation to the Loan; and
(ii) payment of stamp duty of 0.005 per cent . of the full amount
of the Loan on this Loan Contract by both parties to this Loan
Contract respectively;
(k) neither the Borrower nor the translations contemplated by this Loan
Contract is subject to currency deposits requirements (other than any
requirements imposed by the Foreign Debt Registration procedures in relation to
the Loan) of any nature under any applicable law or regulation of China, nor is
there any restriction or requirement (other than the requirement that the
Borrower complies with the Foreign Debt Registration procedures in relation to
the Loan and any generally applicable foreign exchange control regulation
imposed after the date hereof) of the laws or regulations of China which limits
the availability to the Borrower of US Dollars for the purpose of performing its
obligations hereunder to make payments in US Dollars or otherwise limits the
ability of the Borrower to perform such obligations.
(l) no Event of Default (as hereinafter defined), and no event which
with the giving of notice or the passing of time, or both, would constitute an
Event of Default, has occurred and is continuing.
6. CONDITIONS PRECEDENT.
The obligation of the Lender to make the Loan hereunder is subject to
the fulfillment, as determined solely by the Lender, of the following conditions
precedent at least five Banking Days prior to the proposed date of the first
drawdown of the Loan (except as otherwise indicated below) and the continued
fulfillment of such conditions on the date of the first drawdown:
(a) All documents, licenses, approvals and permits required in
connection with the establishment of the Borrower as a Sino-foreign cooperative
joint venture and the design, construction, ownership, operation and management
of the Power Plant (as defined in the Operations and Offtake Contract which is
defined in Exhibit E) shall have been obtained and are in full force and effect;
without limiting the generality of the foregoing, such approvals shall include
approval by the authorized authority of Ministry of Foreign Trade and Economic
Cooperation of China of the Joint Venture Contract and Borrower's Articles of
Association, approval by the Anhui Provincial Pricing Bureau of the pricing
formula set forth in Appendix A to the Operations and Offtake Contract as
defined in Exhibit E ), approval by the relevant government department of the
Land Use Rights (as defined in the Joint Venture Contract), issuance of
Borrower's business licence, approval regarding access to the foreign exchange
adjustment center or foreign exchange banks, and approvals referred to in
Article 6.05 of the Joint Venture Contract;
(b) All registered capital and other loans required to be funded under
the Joint Venture Contract by each party thereto as of such date shall have been
funded in full;
(c) The Lender shall have received satisfactory evidence of the due
authorization, execution and delivery by the Borrower of this Loan Contract, and
each other document delivered in connection herewith;
(d) The Lender shall have received certified copies of all governmental
approvals and filings required for the execution, delivery, performance and
enforceability of this Loan Contract and each other document delivered in
connection herewith or therewith and such approvals and filings are in full
force and effect;
(e) Each of the representations and warranties set forth in Section 5
is true and correct in all material respects;
(f) The Borrower shall have performed in all material respects its
obligations required to be performed under this Loan Contract,
(g) All contracts referred to in the Joint Venture Contract including
without limitation all Project Contracts (as defined in Exhibit E) and all other
material contracts required in connection with the construction of the Project
(as defined Operation and Offtake Contract) shall have been executed and
delivered by all parties thereto and are in full force and effect;
(h) The Lender's independent engineer (referred to in the EPC
Contract)or, at the request of the Lender, the Borrower, has certified in a
manner satisfactory to the Lender that all applicable construction milestones as
set forth in Exhibit B have been met;
(i) The Borrower shall has purchased the insurance policies required by
the Lender, as specified in the EPC Contract and Operations and Offtake Contract
and such policies shall be in full force and effect;
(j) The Borrower shall has signed each of the loan contracts listed in
the Exhibit D of this Contract.
(k) The Lender shall have received a favorable opinion of H&P Law
Office with respect to the transactions contemplated hereby and such other
approvals, opinions and documents as the Lender may reasonably request;
(l) Satisfactory Evidence that an amount equal to the proposed amount
to be drawn under the AES Loan Contract between the Lender and Anhui Liyuan-AES
Power Company, dated on the same date as this Contract, has been drawn or is to
be drawn on the same date as the proposed date of such drawdown.
(m) Evidence satisfactory to the Lender that the Borrower has paid all
stamp duties payable under the laws of China in connection with all the executed
originals of this Loan Contract.
(n) Evidence satisfactory to the Lender that the borrowing contemplated
in this Loan Contract has been approved by the State Administration of Exchange
Control (including, but not limited to, the registration certificate for
external debt issued by the State Administration of Exchange Control (the
"REGISTRATION CERTIFICATE")).
(o) Copies, each certified a true copy by a duly authorized officer of
the Borrower, of each of the Project Contracts (referred to in Exhibit E).
(p) Evidence satisfactory to the Lender that the Borrower has appointed
an English process agent pursuant to Section 13 (a).
7. COVENANTS.
(a) The Borrower shall at all times (i) preserve and maintain in full
force and effect its existence as a cooperative joint venture under the laws of
China, its qualification to do business in Anhui Province, China and in each
other jurisdiction in which the conduct of its business requires such
qualification and (ii) obtain and maintain in full force and effect all
documents, licenses, permits and governmental approvals required at any time in
connection with the construction, maintenance, ownership or operation of the
Facility (as defined in the EPC Contract).
(b) The Borrower shall (i) perform and observe all of its covenants and
agreements contained in any Project Contract or any other document relating to
the Facility to which it is a party and (ii) maintain in full force and effect
each of the Project Contracts.
(c) The Borrower shall comply, and shall ensure that the Facility is
constructed and operated, with all and any governmental requirements.
(d) The Borrower shall promptly provide to the Lender copies of the
Borrower's construction, operation and financial reports and other information
relating to the construction or operation of the Facility.
(e) The Borrower shall use the proceeds of the Loan solely for the
purpose of financing the construction and start-up of the Facility.
(f) The Borrower shall notify the Lender immediately of the occurrence
of any Event of Default or of any event which would become an Event of Default
with the passage of time or giving of notice or both.
(g) The Borrower shall not, without the prior written consent of the
Lender, assign, sell, pledge, mortgage, encumber or otherwise transfer any
interest in any assets of the Borrower other than transfers in the ordinary
course of its business that would not have a materially adverse effect on the
Borrower or the ability of the Borrower to perform its obligations hereunder.
(h) Prior to any due date for any repayment of the principal of and/or
the payment of interest on the Loan, the Borrower shall (A) use the Registration
Certificate and the notice regarding such repayment and/or payment to obtain
from the registration department a verification and approval certificate with
respect to such repayment and/or payment; and (B) use such verification and
approval certificate and the Registration Certificate to handle matters
regarding the remittance from the foreign debt account of the principal of and
interest on the Loan outside of China at the relevant bank.
(i) Prior to 31 January of each year, the Borrower shall submit to the
local foreign exchange administration a report stating the amount of foreign
currency purchased in the preceding year for the purpose of repaying the
principal of and/ paying the interest on the Loan and a plan regarding the
purchase of foreign currency for the current year. and the Borrower shall
provide copies , certified by a duly authorized officer of the Borrower, of each
such report together with evidence satisfactory to the Lender that the original
thereof has been delivered to the local foreign exchange administration.
(j) The Borrower shall not, without the prior written approval of the
Lender, seek to agree any waiver or seek any waiver from any of the lenders
party to the loan agreements set out in Exhibit D.
(k) The Borrower shall not, without the prior written consent of the
Lender, incur any further indebtedness save for indebtedness incurred in respect
of trade finance facilities with reputable banks to enable the Borrower to
purchase equipment, raw materials and services for the Project the aggregate
amount of which at any time does not exceed 250,000 RMB.
8. EVENTS OF DEFAULT.
(a) Each of the following events and occurrences shall constitute an
Event of Default under this Loan Contract:
(i) any representation or warranty of the Borrower proves to have
been untrue when made or deemed to be made or renewed; or
(ii) the Borrower fails to repay when due any principal amounts
of the Loan, or the Borrower fails to pay within three Banking Days
after the date due any interest or fee payment, due pursuant to the
terms of this Loan Contract , any document delivered in connection
herewith ; or
(iii) the Borrower fails to perform or violates any other
provision of this Loan Contract (including without limitation the
covenants), or any document delivered in connection herewith, which
continues unremedied for 30 days after notice thereof from the Lender;
or
(iv) except as otherwise provided in clause (ii) above, the
Borrower fails to pay when due any indebtedness for which it is
liable, contingently or otherwise, or any such indebtedness is
accelerated or is required to be prepaid prior to the stated maturity
thereof; or
(v) any document, license, approval or permit required for the
performance or enforceability of the obligations of the Borrower under
this Loan Contract, or any other document delivered in connection
herewith expires or is not renewed upon expiration or is terminated or
revoked or modified in any material respect; or
(vi) any document, license, approval or permit required in
connection with the Project expires or is not renewed upon expiration
or is terminated or revoked or modified in any material respect; or
(vii) any Project Contract is materially breached by a party
thereto or such contract ceases to be in full force and effect; or
(viii) the Borrower becomes insolvent or unable to pay its debts
when due, or commits any act of bankruptcy including filing any
petition in any bankruptcy, winding-up or reorganization proceeding,
or acknowledges in writing its insolvency or inability to pay its
debts, or any petition relating to bankruptcy is filed with respect to
it by its creditors; or
(ix) one or more judgments aggregating at least US$100,000 (or
its equivalent in any currency) that is not covered by insurance is
entered against the Borrower and is not satisfied, vacated or bonded
pending appeal within 60 days after such entry; or
(x) the Project becomes or is declared a total loss or is beyond
economic repair in the opinion of an insurance expert appointed by the
Lender; or
(xi) any execution or distress is levied against, or encumbrance
takes possession by way of enforcement of security of the whole or any
part of the property, undertaking or assets of the Borrower; or
(xii) by or under the authority of any government (a) all, or
substantially all of, the management of the Borrower is displaced or
the authority of the Borrower in the conduct of its business is wholly
or partially curtailed or (b) all or a majority of its revenues or
assets is seized, nationalized, expropriated or compulsorily acquired;
or
(xiii) an Event of Default has occurred and is continuing or an
event which with the giving of notice or the passing of time, or both,
would constitute an Event of Default, under the AES Loan Contract
between the Lender and Anhui Liyuan-AES Power Company Limited dated on
the same date as this Contract;
(b) If an Event of Default shall occur and be continuing, the Lender
shall have no further obligation to make further drawdowns of the Loan to the
Borrower and the Lender may by notice to the Borrower declare all the
Outstandings and accrued interest thereon and other amounts payable hereunder to
be immediately due and payable, whereupon all such amounts shall become
forthwith due and payable without further demand or notice of any kind . In the
event of an Event of Default, the Lender shall also have the right to liquidate
the Borrower and its assets.
(c) If the Borrower fails to pay any sum payable under this Loan
Contract when due, the Lender shall charge the Borrower i) US$10,000 default fee
which the Borrower hereby agrees shall be deemed to be due and payable on the
date of default and ii) in addition to the normal interest defined in Section 3
(a) an additional two percent (2%) default interest per annum on such sum for
the period beginning from and including the due date to the date of actual
payment (after as well as before judgment) as conclusively determined by the
Lender.
9. ENTIRE AGREEMENT; AMENDMENTS.
This Loan Contract constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and may be amended only by an
instrument in writing signed by the parties hereto.
10. INDEMNITY.
(a) The Borrower shall pay all stamp duties in connection with this
Loan Contract, and each other document delivered in connection herewith and
shall reimburse the Lender for any other cost, expenses, loss or damage
(including without limitation any taxes but excluding taxes imposed on the net
income of the Lender by the jurisdiction of its registration and other costs
resulting from changes in law after the date hereof) incurred by the Lender in
connection with, (i) the negotiation, preparation and execution of this Loan
Contract including legal fees, or any other document delivered in connection
herewith and the completion of the transactions contemplated herein or therein,
and (ii) the preservation and /or enforcement of any of its rights under this
Loan Contract or any other document delivered herewith. The payment of such
stamp duties by the Borrower and the reimbursement by the Borrower of such other
cost, expenses, loss or damage (including taxes as stated above) shall be in
addition to, and without prejudice to, the Borrower's obligation to pay interest
as set forth in Sections 3(a) and 8(c) and to repay the principal amount in
accordance with Section 2 (a) or pursuant to a declaration under Section 8(b).
(b) Without limiting the generality of clause (a) above, if the
Borrower shall be obligated to withhold and pay any taxes required under the
applicable laws of China or under any agreement between China and any country
which has jurisdiction over the Lender or the Borrower, the interest rate then
applicable hereunder shall be automatically and accordingly increased and such
that the additional interest payment shall ensure the net amounts received by
and retained the Lender after such withholding shall be equal to the amounts
which would have been received and retained by the Lender had no such
withholding been made.
(c) The indemnity provisions of this Section 10 shall survive the
repayment of the Loan and the termination of this Loan Contract.
11. NOTICE.
All notices hereunder shall be in writing and shall be either
personally delivered, or transmitted by postage prepaid registered air mail, or
by facsimile to the party addressed at the relevant address . and facsimile
number set forth below and , in the case of the Lender, shall be expressly
marked for the attention of the department or officer identified with the
Lender's signature below and shall be deemed to have been made or delivered (in
the case of any communication made by letter) when left at that address or (as
the case may be) five (5) days after being deposited in the post (air mail, if
such letter is to be sent overseas) postage prepaid in an envelope addressed to
it at that address or (in the case of any communication made by facsimile) when
dispatched after a transmission report confirming due transmission to the
correct facsimile number and the correct number of pages transmitted. Either
party may change its address by written notice to the other.
12. GOVERNING LAW.
This Loan Contract shall be governed by and interpreted in accordance
with the laws of England without regard to the conflict of laws rules thereof.
13. SUBMISSION TO JURISDICTION.
(a) The Borrower hereby irrevocably for the benefit of the Lender
consents that any legal action or proceeding against it or any of its assets
with respect to any of the obligations arising under or relating to this Loan
Contract may be brought in any English court, as the Lender may elect, and by
execution and delivery of this Loan Contract, the Borrower hereby irrevocably
submits to and accepts with regard to any such action or proceeding, for itself
and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts. The Borrower hereby irrevocably agree to
designate, appoint and empower AES Electric in England (address: Burleigh House,
▇▇-▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇.▇.), as its agent to receive for and on its
behalf service of process in England in any legal action or proceeding with
respect to this Contract or any other document delivered in connection herewith.
The foregoing, however, shall not limit the rights of the Lender to serve
process in any other manner permitted by law or to bring any legal action or
proceeding or to obtain execution of judgment in any jurisdiction, including
without limitation the People's Republic of China.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Loan Contract or any other
document delivered in connection herewith in England and hereby further
irrevocably waives any claim it might now or hereafter have that England is not
a convenient forum for any such suit, action or proceeding.
14. ARBITRATION.
(a) Notwithstanding Section 13, the Lender may, in its sole discretion,
choose to submit any dispute arising out of or in connection with this Loan
Contract for binding arbitration in Stockholm, Sweden under the auspices of the
International Chamber of Commerce in accordance with the Rules of Conciliation
and Arbitration of the International Chamber of Commerce as in effect on the
date of this Loan Contract (except to the extent this Section 14 specifies
different procedures in which event such procedures will govern the arbitration
to the extent so specified). The Lender may choose arbitration with respect to
any dispute at any time either before or after any filing of any claim, action
or proceeding with any court by either party, provided, however, that once the
Lender makes such a choice, the relevant dispute will be settled finally and
exclusively by arbitration irrespective of (i) whether any claim, action or
proceeding has already been commenced in any court, (ii) the magnitude of such
dispute or (iii) whether such dispute would otherwise be considered justifiable
or for resolution by a court or arbitrate tribunal. In the event that a claim,
action or proceeding has already been commenced in a court when the Lender
chooses to submit the relevant dispute for arbitration, both parties hereto will
immediately discontinue and withdraw the claim, action or proceeding from the
court so that the dispute may be handled exclusively by arbitration. Once a
dispute is submitted by the Lender to arbitration, the Borrower shall not have
any right to file any claim, action or proceeding in any court in respect of
such dispute or any matter relating to such dispute so that the dispute may be
handled exclusively by arbitration. Any action by the Lender to submit any
dispute for arbitration shall not prevent the Lender from bringing any claim,
action or proceeding in any court with respect to any other dispute.
(b) The Borrower shall not have any right to submit any dispute to
arbitration.
(c) Any settlement and award rendered through arbitration proceeding
will be final and binding upon the parties hereto if the decision is in writing
and contains a reasoned analysis explaining the arbitrators' reasons for
rendering the award. This Loan Contract and the rights and obligations of the
parties hereto will remain in full force and effect pending the award in such
arbitration proceeding, which award will determine whether and when termination
of this Loan Contract shall become effective.
(d) The arbitration will be conducted in English and Chinese.
(e) There will be three arbitrators. Each party will select one
arbitrator within 30 days after the Lender elects to commence arbitration. Such
arbitrators will be freely selected, and the parties hereto will not be limited
in their selection to any prescribed list. Within 30 days after the selection of
the latter of the two arbitrators selected by the parties, the two arbitrators
shall select the third arbitrator; if the two arbitrators do not select the
third within such 30 day period, the International Arbitration Court of the
International Chamber of Commerce will select the third arbitrator. If a party
does not appoint an arbitrator who has consented to participate within 30 days
after the selection of the first arbitrator, the relevant appointment will be
made by the International Arbitration Court of the International Chamber of
Commerce . The costs of the arbitration will be borne by the parties hereto as
determined by the arbitration tribunal taking into account the relative merits
of the positions of the parties.
(f) The parties hereto agree that the arbitrate award may be enforced
against the parties or their assets wherever they may be found and that a
judgment upon the arbitration award may be entered in any court having
jurisdiction thereof. Accordingly, the parties hereto irrevocably agree that any
action to enforce such judgment may be instituted wherever appropriate and each
party hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it may have now or hereafter to the laying of the venue or the
jurisdiction or the convenience of the forum of any such action and irrevocably
submits generally and unconditionally to the jurisdiction of any such court in
any such action.
15. BANKING DAY ADJUSTMENT.
If the date on which a payment is due is not a Banking Day, such date
shall be changed to the next succeeding Banking Day (or to the immediately
preceding Banking Day if the next succeeding Banking Day is in another calendar
month).
16. INFORMATION.
The Borrower shall provide the Lender with any and all such information
concerning the condition and operation of the Borrower, financial or otherwise,
as the Lender may from time to time request.
17. WAIVER; CUMULATIVE RIGHTS.
The failure or delay of the Lender to require performance by the
Borrower of any provisions of this Loan Contract shall not affect its right to
require performance of such provision unless and until such performance has been
waived in writing by the Lender. Each and every right granted to the Lender
hereunder or under any other document delivered in connection herewith, or
allowed to it at law or in equity, shall be cumulative and is not exclusive of
any rights or remedies provided by law and all such rights may be exercised in
part or in whole from time to time.
18. ASSIGNMENT.
This Loan Contract shall be binding upon and shall be enforceable by
the Borrower and the Lender and the their respective successors and assigns,
except that the Borrower shall have no right to assign or transfer its rights or
obligations hereunder.
19. SET-OFF.
Nothing herein contained shall limit the right of set-off, lender's
lien or counterclaim which may be available to the Lender under applicable law.
20. SEVERABILITY.
If any of the provisions contained in this Loan Contract, or any other
document delivered in connection herewith shall be invalid, illegal or
unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
not in any way be affected or impaired.
21. COUNTERPARTS.
This Loan Contract may be signed in any number of counterparts. Any
single counterpart or a set of counterparts signed, in either case, by both
parties hereto shall constitute a full and original contract for all purposes.
22. LANGUAGE.
This Loan Contract shall be written and executed in both Chinese and
English versions. In the event of any inconsistency between the two versions,
the English version shall be the binding version.
23. CONSTRUCTION.
Unless otherwise stated, all references made in this Loan Contract to
"Sections", "Clauses" and "Exhibits" shall refer, respectively, to Sections of,
Clauses of and Exhibits to, this Loan Contract. References herein to this Loan
Contract include the Exhibits hereto.
24. EFFECTIVENESS
This Loan Contract shall become effective on the date ("Effective
Date") each of the following requirement has been fulfilled: i) the signing of
this Loan Contract hereof ii) the signing of the AES Loan Contract between the
Lender and Anhui Liyuan-AES Power Company Limited, iii) the registration of this
Loan Contract with the State Administration of Exchange Control ("SAEC") or its
authorized government authority and the obtaining of a registration certificate
from the SAEC and, iv) the registration of the AES Loan Contract between the
Lender and Anhui Liyuan-AES Power Company Limited with the State Administration
of Exchange Control or its authorized government authority and the obtaining of
a registration certificate from the SAEC.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have caused this Loan Contract to be executed by their respective duly
authorized signatories as of the day and year first written above.
BORROWER Hefei Zhongli Energy Company Limited
By:[Signature Illegible]
---------------------------------
Name:
Title:
Facsimile:
LENDER AES Chigen Company (L), Ltd.
By:[Signature Illegible]
---------------------------------
Name:
Title:
Facsimile:
EXHIBIT A
FORM OF NOTICE OF DRAWDOWN
--------------------------
To : AES Chigen Company (L) Ltd.
From: Hefei Zhongli Energy Company Limited
Date: [ ], 199[ ]
Dear Sirs,
1. We refer to the loan agreement dated [ ], 199[ ] (as amended from time to
time) (the "AES Loan Contract") and made between ourselves as borrower and
yourselves as lender. Terms defined in the AES Loan Contract shall have the
meaning in this notice.
2. Pursuant to the AES Loan Contract, we hereby give you notice that we wish
to borrow on [insert date of proposed drawdown] a part of the Loan in the
amount of $[ ] United States Dollars upon the terms and subject to the
conditions set out in the AES Loan Contract.
3. We confirm that, as at the date hereof, the representations set out in
Section 5 of the AES Loan Contract are true.
4. The proceeds of this drawdown should be credited to [ insert the Borrower's
account details /the EPC Contractor's account details].
Yours faithfully,
----------------------
(Authorized Signatory)
for and on behalf of
HEFEI ZHONGLI ENERGY COMPANY LIMITED
EXHIBIT B
DRAWDOWN SCHEDULE
-----------------
[TO BE DETERMINED BY THE BORROWER'S BOARD OF DIRECTORS]
DATE AMOUNT CONSTRUCTION MILESTONE
---- ------ ----------------------
EXHIBIT C
AMORTIZATION SCHEDULE
---------------------
The first Banking Day of Principal Due
January 1999 Outstandings (on Availability Termination Date) / 16
July 1999 Outstandings (on Availability Termination Date) / 16
January 2000 Outstandings (on Availability Termination Date) / 16
July 2000 Outstandings (on Availability Termination Date) / 16
January 2001 Outstandings (on Availability Termination Date) / 16
July 2001 Outstandings (on Availability Termination Date) / 16
January 2002 Outstandings (on Availability Termination Date) / 16
July 2002 Outstandings (on Availability Termination Date) / 16
January 2003 Outstandings (on Availability Termination Date) / 16
July 2003 Outstandings (on Availability Termination Date) / 16
January 2004 Outstandings (on Availability Termination Date) / 16
July 2004 Outstandings (on Availability Termination Date) / 16
January 2005 Outstandings (on Availability Termination Date) / 16
July 2005 Outstandings (on Availability Termination Date) / 16
January 2006 Outstandings (on Availability Termination Date) / 16
July 2006 Remaining Principal Balance
EXHIBIT D
LIST OF THE BORROWER'S DEBTS OF OVER RMB ONE MILLION EACH
LOAN 1 LOAN 2
------ ------
LENDER Bank of China Bank of China
DATE OF THE LOAN
CONTRACT NO.
LOAN AMOUNT [***] [***]
LOAN TERM [***] [***]
LOAN INTEREST [***] [***]
LOAN CURRENCY [***] [***]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
EXHIBIT E
"EPC CONTRACT" means the contract dated [--------] and made between [-----] and
[--------]
"INTERCONNECTION AGREEMENT" means the agreement dated [----------] and made
between [----------] and [--------].
"OPERATIONS AND OFFTAKE CONTRACT" means the contract dated [----------] and made
between [----------] and [---------].
"PROJECT CONTRACTS" means [the EPC Contract, Interconnection Agreement, the
Joint Venture Agreement, the Operations and Offtake Contract [, the Power
Purchase and sale Contract] and the Share Assets Agreement and "Project
Contract" shall mean each of them]. [list to be completed and confirmed with the
Borrower]
"SHARE ASSETS AGREEMENT" means the agreement dated [------] and made between
[------] and [-----------------].