EXHIBIT NO. 10.157
NEPAL AGENCY AND RETENTION AGREEMENT
among
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
INTERNATIONAL FINANCE CORPORATION
DEG-DEUTSCHE INVESTITIONS-und ENTWICKLUNGSGESELLSCHAFT mbH
WILMINGTON TRUST COMPANY, as Trustee,
and
NEPAL GRINDLAYS BANK LIMITED
Dated as of the Closing Date
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF CONSTRUCTION 2
ARTICLE 2
APPOINTMENT OF AGENT
ESTABLISHMENT OF THE TRUST AND THE NEPAL RETENTION ACCOUNT
Section 2.1 Acceptance of Appointment of Agent 2
Section 2.2 Establishment of Nepal Retention Account 2
Section 2.3 Security Interest in the Nepal
Retention Account 4
Section 2.4 Establishment of the Nepal Holding Account 4
Section 2.5 Rupee Deposits 4
ARTICLE 3
DEPOSITS INTO THE NEPAL RETENTION ACCOUNT
Section 3.1 Nepal Retention Account Deposits 5
Section 3.2 Sub-Account Deposits 5
ARTICLE 4
WITHDRAWALS FROM ACCOUNTS AND FUNDING REQUIREMENTS
Section 4.1 Mandatory Withdrawals 7
Section 4.2 Nepal Operations and Maintenance
Sub-Account Withdrawals 8
Section 4.3 Nepal Dollar Sub-Account 8
Section 4.4 No other Rights of Withdrawal 8
ARTICLE 5
REMEDIES ON DEFAULT
Section 5.1 Action by the Agent 8
ARTICLE 6
THE AGENT
Section 6.1 Appointment of Agent; Powers and Immunities 8
Section 6.2 Reliance by Agent 9
Section 6.3 Resignation or Removal of Agent 9
Section 6.4 Court Orders 9
ARTICLE 7
EXPENSES; INDEMNIFICATION; FEES
Section 7.1 Expenses 9
Section 7.2 Indemnification 10
Section 7.3 Fees 10
ARTICLE 8
SATISFACTION AND DISCHARGE OF TRUST
Section 8.1 Satisfaction and Discharge of Trust 10
ARTICLE 9
PARTICULAR COVENANTS
Section 9.1 Reporting Requirements 11
Section 9.2 Nepal Payment Requisitions, Etc. 11
Section 9.3 Other Notices 12
Section 9.4 Business Days 12
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
Section 10.1 Representations and Warranties of the
Company 12
Section 10.2 Representations and Warranties of Nepal
Grindlays Bank Limited 13
ARTICLE 11
MISCELLANEOUS PROVISIONS
Section 11.1 Successors or Assigns 14
Section 11.2 Notices 14
Section 11.3 Counterparts 15
Section 11.4 Governing Law; Dispute Resolution 15
Section 11.5 No Waiver; Cumulative Remedies 17
Section 11.6 Severability 17
Section 11.7 Communications 17
Section 11.8 Amendments 17
Section 11.9 Concerning the Trustee 17
SCHEDULE A
FORM OF NEPAL PAYMENT REQUISITION A-1
SCHEDULE B
FORM OF NEPAL DEPOSIT CERTIFICATE B-1
SCHEDULE C
PROCEDURE FOR CONVERSION OF RUPEES TO DOLLARS C-1
SCHEDULE D
FEE SCHEDULE D-1
NEPAL AGENCY AND RETENTION AGREEMENT
NEPAL AGENCY AND RETENTION AGREEMENT, dated as of the
Closing Date (this "Agreement"), among BHOTE KOSHI POWER COMPANY
PRIVATE LIMITED, a private limited liability company registered
under the Nepalese Company Act, 2021 (the "Company"),
INTERNATIONAL FINANCE CORPORATION, an international organization
organized and existing by virtue of the Articles of Agreement
among its member countries ("IFC"), DEG-DEUTSCHE INVESTITIONS-und
ENTWICKLUNGSGESELLSCHAFT mbH, a company organized and existing
under the laws of the Federal Republic of Germany ("DEG") (IFC
and DEG hereinafter being collectively referred to as the
"Lenders" and individually as a "Lender"), WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual
capacity but solely as Trustee under the Trust and Retention
Agreement, as Trustee (the "Trustee"), and NEPAL GRINDLAYS BANK
LIMITED, a commercial bank of Nepal, as agent for the Trustee
(the "Agent").
PRELIMINARY STATEMENTS
The Company has been granted the right to build, own and
operate a 36 MW (nominal net) hydroelectric power plant in the
Sindhupalchok District in Nepal.
IFC is willing to provide financing for the Project pursuant
to the terms of that certain IFC Investment Agreement dated as of
the Closing Date, between the Company and IFC (the "IFC
Investment Agreement").
DEG is willing to provide financing for the Project pursuant
to the terms of that certain DEG Investment Agreement dated as of
the Closing Date, between the Company and DEG (the "DEG
Investment Agreement").
The Company, IFC and DEG have entered into that certain
Investment Agreement General Conditions dated as of the Closing
Date (the "General Conditions").
The Company has granted to the Trustee, for the benefit of
the Lenders, a security interest in all of the Company's assets,
including the accounts created in accordance with this Agreement.
The Trustee desires to appoint Nepal Grindlays Bank Limited to
act as its agent hereunder to hold and administer such accounts
and protect the interests of the Trustee therein, and Nepal
Grindlays Bank Limited desires to act as the Trustee's agent
pursuant to this Agreement.
It is a condition precedent to the obligations of each of
IFC and DEG under the Investment Agreement that this Agreement
shall have been entered into by the parties hereto.
NOW, THEREFORE, IT IS AGREED:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
For all purposes of this Agreement, (i) capitalized terms
not otherwise defined herein shall have the meanings set forth in
Schedule A to the General Conditions and (ii) the principles of
construction set forth in Schedule A to the General Conditions
shall apply.
ARTICLE 2
APPOINTMENT OF AGENT
ESTABLISHMENT OF THE TRUST AND THE NEPAL RETENTION ACCOUNT
Section 2.1 Acceptance of Appointment of Agent.
(a) Nepal Grindlays Bank Limited hereby agrees to act as
the Agent hereunder, in accordance with the terms set forth
herein, and to accept all cash, payments and other amounts
delivered to or held by the Agent pursuant to the terms of this
Agreement. The Agent shall hold and safeguard the Nepal
Retention Account during the term of this Agreement and, as agent
of the Trustee, shall treat the funds in the Nepal Retention
Account as funds owned and pledged by the Company to the Lenders
or to the Trustee for the benefit of the Lenders pursuant to the
Security Documents, to be held in the custody of the Agent, as
agent of the Trustee, as trustee solely for the benefit of the
Lenders, in trust in accordance with the provisions of this
Agreement and the Trust and Retention Agreement.
(b) Neither the Company nor any Affiliate of the Company
shall have any rights against the Agent or its officers,
employees, agents or representatives hereunder (other than rights
which may arise against Nepal Grindlays Bank Limited as a result
of its or the Agent's gross negligence (or, in the case of
handling of funds by the Agent, simple negligence) or willful
misconduct, or a breach of its covenant set forth in Section
2.2(f) hereof, or a material inaccuracy of any representation and
warranty set forth in Section 10.2 hereof), including, without
limitation, any right to direct the Agent to distribute or
allocate any funds in the Nepal Retention Account, except as
otherwise provided elsewhere in this Agreement and except for
funds in the Nepal Holding Account.
Section 2.2 Establishment of Nepal Retention Account.
(a) The Agent hereby establishes in the Company's name a
special, segregated and irrevocable cash account (which
constitutes security for the benefit of the Lenders) with the
Agent at its office in Kathmandu, Nepal entitled "Bhote Koshi
Power Company Private Limited Nepal Retention Account" (the
"Nepal Retention Account") (Account Number 1010215481001) and the
following sub-accounts:
(i) a sub-account entitled "Bhote Koshi
Power Company Private Limited Nepal Operations
and Maintenance Sub-Account" (Account Number
1010215481002) (the "Nepal Operations and
Maintenance Sub-Account");
(ii) a sub-account entitled "Bhote Koshi
Power Company Private Limited Nepal Reserve Sub-
Account" (Account Number 1010215481003) (the
"Nepal Reserve Sub-Account");
(iii) a sub-account entitled "Bhote
Koshi Power Company Private Limited Dollar
Account" (Account Number 1010215481051) (the
"Nepal Dollar Sub-Account") which shall be a
Dollar-denominated account); and
(iv) a sub-account entitled "Bhote Koshi
Power Company Private Limited Nepal ▇▇▇▇▇ Cash
Sub-Account" (Account Number 1010215481004)
(the "Nepal ▇▇▇▇▇ Cash Sub-Account").
(b) All right, title and interest in and to the Nepal
Retention Account and the funds in the Nepal Retention Account
shall be vested in the Agent, as agent of the Trustee, for the
benefit of the Lenders and, upon (i) payment in full of all
Obligations owing to each of the Lenders and termination of all
obligations of each of the Lenders under the Loan Documents, and
(ii) a period of one hundred twenty (120) days (or such other
period as may be applicable with respect to preference or similar
periods under applicable bankruptcy, insolvency or similar laws)
has elapsed since the condition set out in clause (i) is
satisfied without any court determining that the Company is
insolvent or, if such determination is made within that time, the
Lenders are reasonably satisfied that no payment made to each of
the Lenders or the Trustee by the Company will be set aside as a
consequence thereof under any law relating to bankruptcy,
insolvency or similar matters, for the benefit of the Company.
Amounts deposited in the Nepal Retention Account shall be applied
by the Agent as provided in this Agreement.
(c) The Agent shall deposit all amounts received by the
Agent in Rupees in respect of the Company or the Project into the
Nepal Retention Account on the day such amounts are received.
Further, the Agent shall deposit all amounts received by the
Agent in Rupees by way of transfer to the Agent from the Offshore
Retention Account (after conversion of Dollars so transferred
into Rupees at the prevailing market rate), unless instructed by
the Trustee to deposit the same in Dollars in the Nepal Dollar
Sub-Account, into the Nepal Retention Account on the day such
amounts are received. Subject to Section 3.2 hereof, all Rupees
in the Nepal Retention Account shall, to the extent possible, be
invested in the name of the Agent in such Cash Equivalents
denominated in Rupees as the Company directs in writing. Subject
to Section 3.2 hereof, all Dollars in the Nepal Dollar Sub-
Account shall, to the extent possible, be invested in the name of
the Agent in such Cash Equivalents denominated in Dollars as the
Company directs in writing. Failing such direction or in the
event the Agent shall be unable to invest any or all of such
monies in such Cash Equivalents, the Agent shall invest such
monies daily on an overnight basis in accordance with normal
business practices of the Agent and standing instructions to be
delivered to the Agent by the Trustee from time to time.
Interest and other income gained or earned in respect of any
monies deposited in any sub-account shall be deposited in the
same sub-account.
(d) The Agent shall (i) within five (5) Business Days after
receipt of written request by the Trustee, the Company or either
of the Lenders, provide the Trustee, the Company or such Lender
with such information as the Trustee, the Company or such Lender
may specify regarding all Cash Equivalents (including, without
limitation, categories, amounts, maturities and issuers) and any
other investments made by the Agent pursuant hereto and (ii) upon
the written request and at the expense of the Company, arrange
with the Company for a mutually convenient time for a financial
officer or an authorized representative of the Auditors to visit
the office of the Agent to examine and take copies of records
relating to and instruments evidencing the Cash Equivalents held
by the Agent pursuant hereto.
(e) The Company shall forthwith from time to time upon
request of the Agent deliver to the Agent such resolutions,
mandates, authorities, documents, specimen signatures and other
matters as the Agent may require and which are for the time being
in effect to enable the Nepal Retention Account, including all
sub-accounts, to be opened, maintained and operated in accordance
with this Agreement. The Company shall notify the Agent (with
copies to the Trustee and each of the Lenders) of any changes or
additions to the Company's authorized signatories, and such
notice shall be given prior to the implementation of such changes
or additions hereunder.
(f) Each of Nepal Grindlays Bank Limited, individually and
as Agent, and the Trustee agree, for the benefit of the Lenders
and the Company, that it will not create or incur any Lien (i)
upon or with respect to the Nepal Retention Account, except the
Lien of this Agreement and the other Security Documents, or (ii)
upon or with respect to the Nepal Holding Account (as such term
is defined in Section 2.4 hereof), and that it shall take such
action, at its own expense, as shall be necessary to duly
discharge any such Lien.
Section 2.3 Security Interest in the Nepal Retention
Account. The Company has pledged and granted to the Trustee, for
the benefit of the Lenders, a first priority charge over,
security interest in and Lien on all of the Company's right,
title and interest in and to the Nepal Retention Account, and all
cash, investments and securities at any time on deposit therein,
as security for the payment of the Obligations. The Trustee
hereby appoints Nepal Grindlays Bank Limited as its agent for the
purpose of carrying out the Trustee's obligations under the
Security Documents in respect of the Nepal Retention Account and
for the purpose of perfecting the security interest of the
Lenders in and to the Nepal Retention Account and all cash at any
time on deposit in the Nepal Retention Account.
Section 2.4 Establishment of the Nepal Holding Account.
The Agent hereby establishes in the Company's name a special and
segregated account with the Agent at its office in Kathmandu,
Nepal entitled "Bhote Koshi Power Company Private Limited Nepal
Holding Account" (the "Nepal Holding Account"). The Agent shall
withdraw from time to time, strictly in accordance with the
written directions of the Trustee, Rupees on deposit in the Nepal
Reserve Sub-Account and transfer such Rupees to the Nepal Holding
Account. The Holding Account shall not be subject to any Lien in
favor of, or subject to any restriction whatsoever benefiting,
the Lenders and amounts deposited in the Nepal Holding Account
may be used by the Company for any purpose the Company wishes.
The Agent shall apply amounts on deposit in the Nepal Holding
Account from time to time as directed by the Company in a written
notice to the Agent.
Section 2.5 Rupee Deposits. If any excess Rupee amount
(excluding Rupees deposited in the Nepal Reserve Sub-Account) is
not converted to Dollars or other convertible currencies within
ninety (90) days of deposit in the Nepal Retention Account under
circumstances in which Nepal Rastra Bank, HMGN or another
Governmental Authority in Nepal having power to regulate foreign
exchange is not generally permitting conversion of Rupees into
Dollars or other convertible currencies or remittance thereof in
order to pay obligations denominated in convertible currencies,
the Designee, at the request of the Lenders, shall withdraw and
transfer to the Lenders such excess Rupee amount. Upon receiving
Rupees pursuant to this Section 2.5, the Lenders will, if they
are able, convert such Rupees to Dollars or other convertible
currencies and apply such amount to pay Obligations owing to the
Lenders from time to time in accordance with the terms of the
Intercreditor Agreement.
ARTICLE 3
DEPOSITS INTO
THE NEPAL RETENTION ACCOUNT
Section 3.1 Nepal Retention Account Deposits. All amounts
received by the Agent in respect of the Company or the Project
shall be deposited on the day of receipt into the Nepal Retention
Account. The Company agrees to cause all amounts payable in
Rupees to or for the benefit of the Company (including, without
limitation, all revenues under the PPA and all refunds of import
duties received by the Company in Rupees) to be made directly to
the Agent for deposit in the Nepal Retention Account. In the
event that, notwithstanding the foregoing, any such payments in
Rupees or other amounts denominated in Rupees are received by the
Company, or if the Company shall draw funds available under the
NEA Letter of Credit, the Company shall promptly pay, endorse,
transfer and deliver such payments, other amounts, or funds, to
the Agent for deposit in the Nepal Retention Account, and, until
such delivery, the Company shall hold such payments and other
amounts, as the case may be, in the same form as received in
trust for the Agent.
Section 3.2 Sub-Account Deposits.
(a) The Agent shall notify the Trustee of each deposit of
funds received under the PPA from NEA (or from HMGN, as guarantor
of NEA's payment obligations under the PPA). Subject to Section
5.1 hereof, on or before the Commercial Operation Date and at
least five (5) days prior to the first day of each Quarter
thereafter, provided the Trustee has received a properly
completed Debt Service and Reserve Deposit Certificate in
accordance with the Trust and Retention Agreement (or a
Correction Notice), the Trustee shall instruct the Agent to make
the following transfers, in the amounts specified by the Trustee
in a Nepal Deposit Certificate in the form of Schedule B hereto:
(i) for deposit in the Nepal Operations and
Maintenance Sub-Account, an amount equal to (A)
the product of (x) Operating and Maintenance Costs
payable in Rupees budgeted for the following
Quarter in the Annual Budget, multiplied by (y)
1.10, minus (B) the amount then on deposit in the
Nepal Operations and Maintenance Sub-Account;
(ii) after making any withdrawal required on
such date pursuant to paragraph (i), for deposit
in the Nepal Reserve Sub-Account an amount equal
to the number of Rupees required to be deposited
in the Nepal Operations and Maintenance Sub-
Account pursuant to clause (i) above.
(b) If funds on deposit in the Nepal Retention Account are
insufficient to make some or all of the deposit into the Nepal
Operations and Maintenance Sub-Account specified in paragraph (i)
above, then funds in the amount of such shortfall shall be
withdrawn from the Nepal Reserve Sub-Account and transferred to
the Nepal Operations and Maintenance Sub-Account and, following
each subsequent deposit in the Nepal Retention Account of funds
received under the PPA during such Quarter, the Agent shall
withdraw from the Nepal Retention Account and deposit in the
Nepal Operations and Maintenance Sub-Account any remaining
shortfall. (The Agent shall within one (1) Business Day provide
the Trustee with notice of any such shortfall and any transfers
from the Nepal Reserve Sub-Account or the Nepal Retention Account
made to cover such shortfall).
(c) At least five (5) days prior to the first day of each
Quarter prior to the Commercial Operation Date, the Trustee shall
instruct the Agent to withdraw from the Nepal Retention Account
and transfer to the Nepal ▇▇▇▇▇ Cash Sub-Account, after making
any withdrawals required pursuant to paragraphs (a) and (b)
above, the amount specified by the Trustee in a Nepal Deposit
Certificate, which amount shall be the lesser of (i) Seventy-five
Thousand Dollars ($75,000) or (ii) such amount as equals Seventy-
five Thousand Dollars when added to any amount that would
otherwise be on deposit in the Nepal ▇▇▇▇▇ Cash Sub-Account on
the first day of the applicable Quarter. During each Quarter,
the Company shall be permitted to withdraw from such Nepal ▇▇▇▇▇
Cash Sub-Account an amount not to exceed $75,000. Any funds
remaining in the Nepal ▇▇▇▇▇ Cash Sub-Account on the Commercial
Operation Date shall be deposited in the Nepal Retention Account.
(d) All funds received from NEA under the PPA in excess of
the amounts directed by the Trustee to be deposited in the Nepal
Operations and Maintenance Sub-Account or the Nepal Reserve Sub-
Account, all funds in excess of the amounts directed by the
Trustee to be deposited in the Nepal ▇▇▇▇▇ Cash Sub-Account, and
all other amounts received by the Agent in respect of the Company
or the Project, shall be held in the Nepal Retention Account,
converted by the Agent into Dollars, or if Dollars are
unavailable, other convertible currencies, at the earliest
possible date, in accordance with the procedures set forth in
Schedule C, and except Dollars required to be deposited in the
Nepal Dollar Sub-Account pursuant to paragraph (e) below, and
provided the Agent has received any necessary Governmental
Approvals (which Governmental Approvals shall be obtained by the
Company, with the Agent hereby agreeing to reasonably cooperate
in connection therewith), transferred to the Trustee for deposit
in the Offshore Retention Account. If any such Rupees have not
been converted into Dollars or other convertible currencies and
transferred to the Trustee within ninety (90) days of the date
such Rupees are deposited under circumstances in which Nepal
Rastra Bank, HMGN or another Governmental Authority in Nepal
having power to regulate foreign exchange is not generally
permitting conversion of Rupees into Dollars or other convertible
currencies or remittance thereof in order to pay obligations
denominated in convertible currencies, the Trustee may direct the
Agent to withdraw and transfer to the Lenders such Rupees, and
the Agent shall, to the extent that it is able to do so under
applicable law, make such transfer. Upon receiving Rupees
pursuant to this Section 3.2(d), the Lenders will, if they are
able, convert such Rupees into Dollars or other convertible
currencies and apply such amount to pay Obligations owing to the
Lenders from time to time in accordance with the terms of the
Intercreditor Agreement.
(e) Upon receipt from time to time of notice from the
Trustee that Dollars are to be deposited in the Nepal Dollar Sub-
Account, the Agent shall deposit the number of Dollars specified
in the Trustee's notice in the Nepal Dollar Sub-Account, when and
as Rupees are converted to Dollars in accordance with the
procedures set forth in Schedule C.
ARTICLE 4
WITHDRAWALS FROM ACCOUNTS
AND FUNDING REQUIREMENTS
Section 4.1 Mandatory Withdrawals. Upon receipt of notice
from the Trustee of the occurrence of a Special Buyout Event, the
Agent shall not pay to the Company or any other Person other than
the Lenders any amounts held by the Agent pursuant to this
Agreement; provided, however, that the Agent shall continue to
make withdrawals from the Nepal Operations and Maintenance Sub-
Account in accordance with Section 4.2 hereof and from the Nepal
Dollar Sub-Account in accordance with Section 4.3 hereof.
Section 4.2 Nepal Operations and Maintenance Sub-Account
Withdrawals. Within two (2) Business Days following a request of
the Company pursuant to a Nepal Payment Requisition in the form
of Schedule A hereto, the Agent shall withdraw from the Nepal
Operations and Maintenance Sub-Account the amounts set forth in
such Nepal Payment Requisition and transfer such amounts to the
payees specified therein.
Section 4.3 Nepal Dollar Sub-Account. Within two (2)
Business Days following a request of the Company pursuant to a
Nepal Payment Requisition, the Agent shall withdraw from the
Nepal Dollar Sub-Account the amounts set forth in such Nepal
Payment Requisition and transfer such amounts to the payees
specified therein.
Section 4.4 No other Rights of Withdrawal. Except as
specifically set forth in Sections 3.2(c), 4.2 and 4.3 hereof,
the Company shall have no right to request that the Agent
withdraw and transfer funds in the Nepal Retention Account.
ARTICLE 5
REMEDIES ON DEFAULT
Section 5.1 Action by the Agent. If the Agent receives a
Notice of Default from the Trustee or either of the Lenders
specifying that an Event of Default of the Company has occurred
under the Investment Agreement, the Agent shall take such action
or shall refrain from taking such action with respect to such
Event of Default as the Agent shall be directed in writing by the
Trustee or either of the Lenders. Without limiting the
foregoing, the Agent shall accumulate all monies then held by the
Agent and, unless the Trustee or either of the Lenders shall
otherwise direct in writing, shall not pay to the Company or any
other Person other than the Trustee any monies held by the Agent
pursuant to this Agreement.
ARTICLE 6
THE AGENT
Section 6.1 Appointment of Agent; Powers and Immunities.
The Trustee hereby appoints and authorizes Nepal Grindlays Bank
Limited to act as its agent hereunder, with such powers as are
expressly delegated to the Agent by the terms of this Agreement.
The Agent shall not bear any duties or responsibilities except
those expressly set forth in this Agreement.
Section 6.2 Reliance by Agent. The Agent shall be entitled
to rely upon any certificate, notice or other document (including
any cable, telegram, telecopy or tested telex) reasonably
believed by it to be genuine and correct and to have been signed
or sent by or on behalf of the Person or Persons purporting to
sign or send such certificate, notice or other document, and
shall have no liability for its actions taken thereupon, unless
due to the Agent's willful misconduct or gross negligence.
Section 6.3 Resignation or Removal of Agent. Subject to
the appointment and acceptance of a successor Agent as provided
below, the Agent may resign at any time by giving notice thereof
to the Trustee, each of the Lenders and the Company. The Agent
may be removed at any time with or without cause by the Trustee
(with the concurrence of either of the Lenders). Upon any such
resignation or removal, the Trustee shall appoint a successor
Agent with the prior written consent of the Lenders, or, if the
Trustee shall fail to do so within sixty (60) days, the Lenders
shall appoint a successor Agent, and thereafter, the retiring
Agent shall be relieved of its obligations hereunder. Upon the
acceptance of any appointment as Agent hereunder by a successor
Agent, the retiring Agent shall promptly transfer the Nepal
Retention Account and the Nepal Holding Account to the possession
or control of the successor Agent. If the Lenders also fail to
appoint a successor Agent within an additional sixty (60) day
period following the aforesaid sixty (60) day period, the Agent
shall be relieved of its obligations hereunder and will hold any
amounts remaining in the Nepal Retention Account at the disposal
of the Trustee.
Section 6.4 Court Orders. The Agent is hereby authorized,
in its exclusive discretion, to obey and comply with all writs,
orders, judgments or decrees issued by any court or
administrative agency affecting any money, documents or things
held by the Agent, provided the Agent has notified the Trustee of
any such writ, order, judgment or decree and the Agent's actions
in connection therewith. The Agent shall not be liable to any of
the parties hereto, their successors, heirs or personal
representatives by reason of the Agent's compliance with such
writs, orders, judgments or decrees, notwithstanding such writ,
order, judgment or decree is later reversed, modified, set aside
or vacated.
ARTICLE 7
EXPENSES; INDEMNIFICATION; FEES
Section 7.1 Expenses. The Company agrees to pay or
reimburse within thirty (30) days of demand therefor all
reasonable out-of-pocket expenses of the Agent in respect of, or
incident to, the preparation, execution and delivery of this
Agreement, the administration of this Agreement, the Nepal
Retention Account (including currency conversion costs) and the
Nepal Holding Account, the enforcement of any of the provisions
of this Agreement or in connection with any amendment, waiver or
consent relating to this Agreement, provided that any such demand
is accompanied by such supporting documentation as may be
reasonably requested by the Company.
Section 7.2 Indemnification. The Company agrees to
indemnify and hold harmless the Agent, its directors, officers,
employees, agents and representatives (the Agent and its
directors, officers, employees, agents and representatives each
an "Indemnified Party") from and against any and all claims,
losses and liabilities growing out of or resulting from or in any
way related to this Agreement and the transactions hereunder
(including, without limitation, enforcement of this Agreement,
but excluding any such claims, losses or liabilities resulting
from the Indemnified Party's gross negligence or willful
misconduct or, in the case of handling of funds, simple
negligence of the Agent).
Section 7.3 Fees. The Company agrees to pay to the Agent
the fees set forth in the Fee Schedule attached hereto as
Schedule D. Such Fee Schedule shall be subject to review and
amendment by the Agent every second (2nd) anniversary of the date
hereof; provided, however, that any amendments to the Fee
Schedule shall be subject to the mutual agreement of the parties
hereto and to the prior written consent of the Lenders.
ARTICLE 8
SATISFACTION AND DISCHARGE OF TRUST
Section 8.1 Satisfaction and Discharge of Trust. Upon
delivery to the Agent of a certificate signed by the Trustee and
the Lenders stating that all conditions precedent to the
satisfaction and discharge of this Agreement and the other
Security Documents have been complied with, this Agreement shall
cease to be of further effect, and the Agent, at the cost and
expense of the Company, shall execute proper instruments
acknowledging the satisfaction and discharge of this Agreement
and shall transfer all funds, if any, in the Nepal Retention
Account or the Nepal Holding Account to the Company at such place
and in such manner to be specified in writing by the Company.
ARTICLE 9
PARTICULAR COVENANTS
Section 9.1 Reporting Requirements.
(a) The Agent shall, on a monthly basis and at such other
times as the Trustee, the Lenders or the Company may from time to
time reasonably request, provide to the Trustee, each of the
Lenders and the Company account balance statements in respect of
the Nepal Retention Account.
(b) On the fifth Business Day of each Contract Month, as
such term is defined in the PPA, the Agent shall notify the
Trustee, each of the Lenders and the Company if it has not
received the monthly payment by NEA under the PPA for the
preceding Contract Month.
(c) The Agent shall give notice to the Trustee and the
Company of funds received by the Agent in respect of the Company
or the Project, specifying the amount of such payment, the date
of receipt and the name of the payor. If any such funds are
received by 12:00 noon on any Business Day, the Agent shall give
the aforesaid notice on such Business Day. If any such funds are
received after 12:00 noon on any Business Day, the Agent shall
give the aforesaid notice on the next following Business Day.
Section 9.2 Nepal Payment Requisitions, Etc.
(a) Any notice, request or requisition given to the Agent
shall be in writing and shall state the date of the requested
transfer, withdrawal, deposit or payment, the amount, source and
disposition of any such funds.
(b) The Agent shall rely on each Nepal Payment Requisition
properly completed and signed by an Authorized Officer of the
Company and each Nepal Deposit Certificate, Notice of Default or
other notice delivered by the Trustee.
Section 9.3 Other Notices. The Agent shall promptly notify
the Trustee of any matter of which the Agent becomes aware in the
course of the performance of its obligations under this Agreement
that may, in the opinion of the Agent, be of concern to the
Trustee or the Lenders.
Section 9.4 Business Days. If any transfer, withdrawal,
deposit or payment of any funds by the Agent is to be made or
taken on a day other than a Business Day, such transfer,
withdrawal, deposit or payment shall be made or taken on the next
succeeding Business Day.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
Section 10.1 Representations and Warranties of the Company.
The Company represents and warrants that as of the date hereof:
(a) it has the power to open and maintain the Nepal
Retention Account, including all sub-accounts, and the Nepal
Holding Account and has taken all necessary corporate and other
action required to authorize the opening and maintenance thereof
upon the terms referred to herein and the execution and delivery
of all such documents as are necessary for the purpose thereof;
(b) except for the approval of the Nepal Rastra Bank for
the establishment of the Nepal Retention Account and the Nepal
Holding Account and the remittance of foreign currency to and
from the Offshore Retention Account and the Nepal Retention
Account (including all sub-accounts) and the Nepal Holding
Account, all of which have been obtained and are in full force
and effect and those which have been listed in Schedule 4.1(d) of
the General Conditions, it is not necessary to permit the
performance of or to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement or
the assignment, charge, security interest and Lien on the
Collateral created by this Agreement, that this Agreement be
filed, recorded or enrolled with any Governmental Authority;
(c) all consents, licenses, approvals or authorizations of
or declarations to or registrations with Governmental Authorities
and the payment of all stamp duties and other transaction taxes
required to make this Agreement and the Nepal Retention Account
and the Nepal Holding Account and the assignment, charge,
security interest and Lien on the Nepal Retention Account created
under this Agreement and the Security Agreement and Assignment
legal, valid and enforceable as a first assignment, charge,
security interest and Lien over the Nepal Retention Account and
admissible in evidence, and to enable it lawfully to enter into
and perform its obligations hereunder and thereunder, have been
obtained or made and are in full force and effect; and
(d) this Agreement is effective to create a valid
assignment, charge, security interest and Lien over the Nepal
Retention Account, constituting in favor of the Agent, as agent
for the Trustee, for the benefit of the Lenders, a first priority
security interest with respect to the Nepal Retention Account,
and all cash, investments and securities at any time on deposit
therein, to the exclusion of all other obligations of the Company
to its other creditors.
Section 10.2 Representations and Warranties of Nepal
Grindlays Bank Limited. Nepal Grindlays Bank Limited, in its
individual capacity, hereby represents and warrants that:
(a) it is a banking corporation duly organized and validly
existing in good standing under the laws of the jurisdiction of
its incorporation and has the corporate power and authority to
enter into and perform its obligations under this Agreement, and
has full right, power and authority to enter into and perform its
obligations as the Agent hereunder;
(b) this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and legally binding
obligation, enforceable in accordance with its terms;
(c) the execution, delivery and performance of this
Agreement will not conflict with or result in a breach of any of
the terms, conditions or provisions of, or constitute a default
or require any consent under, any indenture, mortgage, agreement
or other instrument or arrangement to which it is a party or by
which it is bound, or violate any of the terms or provisions of
its articles of incorporation, by-laws or other governing
documents, or any judgment, decree or order or any law, statute,
rule or regulation applicable to it;
(d) it has obtained all consents, licenses, approvals and
authorizations of all Governmental Authorities required under
applicable laws, regulations, decrees or orders of or in Nepal
(which may legally be obtained as of the date hereof) in
connection with its execution, delivery, performance, validity or
enforceability of this Agreement, and that such consents,
licenses and authorizations are in full force and effect; and
(e) it is an authorized foreign exchange dealer in Nepal.
ARTICLE 11
MISCELLANEOUS PROVISIONS
Section 11.1 Successors or Assigns. This Agreement
shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the
parties hereto; provided, however, that neither the Company, the
Trustee nor the Agent may assign or transfer any of its rights or
obligations hereunder without the prior written consent of the
Lenders. Each of the Lenders may transfer, assign or grant its
rights hereunder in connection with an assignment or transfer of
all or any part of its interest in its Commitment or the IFC
Loans or the DEG Loan, as the case may be, in accordance with the
Investment Agreement.
Section 11.2 Notices. All notices, demands, requests and
other communications provided for hereunder shall be in writing
and shall be deemed to have been given (a) when presented
personally, (b) when sent by overnight courier service, on the
Business Day following the date of delivery to such courier
service, or such later day as demonstrated by a bona fide receipt
therefor, or (c) when transmitted by facsimile, upon
acknowledgment of receipt by the recipient. Any party may
designate from time to time by written notice to the other
parties another address to which notices are to be sent.
Addresses:
Bhote Koshi Power Company Private Limited
KHA ▇-▇▇▇
▇▇▇▇▇▇▇▇, Tahachal
Kathmandu, Nepal
Attn: Project Manager
Fax: ▇▇▇ ▇▇▇-▇-▇▇▇▇▇▇
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Nepal Grindlays Bank Limited
G.P.O. Box No. 3990
Naya Baneshwor
Kathmandu, Nepal
Attn: ▇. ▇▇▇▇▇▇▇
Senior Manager
Fax: (▇▇▇) ▇-▇▇▇▇▇▇
International Finance Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: Director, Power Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
DEG-Deutsche Investitions-und Entwicklungsgesellschaft mbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇
▇▇▇▇▇ (Mungersdorf)
Federal Republic of Germany
Attn: Infrastructure Department
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇
Section 11.3 Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties hereto
in separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together
constitute one and the same instrument.
Section 11.4 Governing Law; Dispute Resolution.
(a) This Agreement shall for all purposes be governed by
and construed in accordance with the laws of the Kingdom of
Nepal.
(b) Each of the Agent and the Trustee shall designate in
writing to the other party a representative who shall be
authorized to resolve any dispute arising under this Agreement in
an equitable manner and, unless otherwise expressly provided
herein, to exercise the authority of the parties hereto to make
decisions by mutual agreement.
(i) If the designated
representatives are unable to resolve
a dispute under this Agreement within
thirty (30) days of the commencement
of discussions, such dispute shall be
referred by such representatives,
respectively, to a senior officer
designated by the Agent and a senior
officer designated by the Trustee to
be resolved within thirty (30) days
of the commencement of discussions.
(ii) The parties hereto agree to
attempt to resolve all disputes
arising hereunder promptly, equitably
and in a good faith manner.
(iii) The parties further
agree to provide each other with
reasonable access during normal
business hours to any and all
records, information and data
pertaining to any such dispute other
than any confidential communication
between any party and its legal
advisor(s) or any such records,
information or data which any party
has agreed with any third party to
keep confidential.
(c) In the event that any dispute is unable to be resolved
between the parties pursuant to Section 11.4(b) hereof, then such
dispute shall be settled exclusively and finally by binding
arbitration. It is specifically understood and agreed that any
dispute that cannot be resolved between the parties, including
any matter relating to the interpretation of this Agreement,
shall be submitted to arbitration irrespective of the magnitude
thereof, the amount in dispute or whether such dispute would
otherwise be considered justiciable or ripe for resolution by any
court or arbitral tribunal. This Agreement and the rights and
obligations of the parties shall remain in full force and effect
pending the award in such arbitration proceeding, which award
shall determine whether and when termination of this Agreement,
if relevant, shall become effective.
(d) Each arbitration shall be conducted in accordance with
the UNCITRAL Arbitration Rules as in effect on Chaitra 17, 2050
(March 30, 1994) except as such Rules conflict with the
provisions of this Section 11.4 in which event the provisions of
this Section 11.4 shall prevail.
(e) Each arbitral tribunal shall consist of three
arbitrators. Provided there are only two parties to any dispute,
each party shall appoint one arbitrator and the third arbitrator
shall be appointed by the Secretary General of the Permanent
Court of Arbitration at the Hague. If there are more than two
parties to any dispute, each of the parties thereto will work
together in good faith to appoint three arbitrators. If the
parties are unable to agree on such arbitrators with fifteen (15)
days, three arbitrators shall be appointed by the Secretary
General of the Permanent Court of Arbitration at the Hague upon
the request of any party to the dispute. No arbitrator shall be
a present employee or agent of, or consultant or counsel to, any
party or any Affiliate of any party.
(f) Each arbitration shall be conducted in Kathmandu,
Nepal, and the parties agree to exclude any right of application
to any court or tribunal of competent jurisdiction in connection
with any question of law arising in the course of any arbitration
in connection with this Agreement.
(g) The language to be used and all written documents
provided in each arbitration shall be English.
(h) Any decision or award of a majority of an arbitral
tribunal appointed pursuant to this Section 11.4 shall be final
and binding upon the parties. The Agent, the Trustee and the
Company each waives to the extent permitted by law any rights to
appeal or any review of such award by any court or tribunal of
competent jurisdiction. The Agent, the Trustee and the Company
each agrees that a judgment upon any arbitration award may be
entered into by any court of competent jurisdiction thereof.
(i) All arbitration awards shall be denominated in the
currency to which such dispute relates, Dollars, Deutsche Marks
or Rupees. Interest on the amount to be paid in accordance with
the arbitration award at a rate equal to seven percent (7%) per
annum shall be due and payable to the prevailing party from the
date on which the matter was first submitted to arbitration up to
and including the date of payment.
Section 11.5 No Waiver; Cumulative Remedies. No failure or
delay on the part of the Trustee, the Agent or the Lenders in
exercising any right, power or privilege hereunder shall impair
any such right, power or privilege or operate as a waiver
thereof, nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Loan Document
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder or thereunder.
Section 11.6 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability but that shall not invalidate the
remaining provisions of this Agreement or affect such provision
in any other jurisdiction.
Section 11.7 Communications. All documents to be furnished
or communications to be given or made under this Agreement shall
be in the English language or, if in another language, shall be
accompanied by a translation into English certified by a
representative of the Company, which translation shall be the
governing version between the Company, the Lenders, the Trustee
and the Agent.
Section 11.8 Amendments. Neither this Agreement nor any of
the terms hereof may be changed, waived, discharged or terminated
unless such change, waiver, discharge or termination is in
writing signed by all of the parties hereto.
Section 11.9 Concerning the Trustee. In acting hereunder,
Wilmington Trust Company shall be afforded all rights, immunities
and protections of the Trustee under the Trust and Retention
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and acknowledged by their respective
officers or representatives hereunto duly authorized, as of the
date first above written.
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
By:
Name:
Title:
INTERNATIONAL FINANCE CORPORATION
By:
Name:
Title: Authorized Signatory
DEG-DEUTSCHE INVESTITIONS-und
ENTWICKLUNGSGESELLSCHAFT mbH
By:
Name:
Title: Authorized Signatory
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By:
Name:
Title:
NEPAL GRINDLAYS BANK LIMITED
By:
Name:
Title:
SCHEDULE A
FORM OF NEPAL PAYMENT REQUISITION
[Date]
Nepal Grindlays Bank Limited
G.P.O. Box No. 3990
Naya Baneshwor
Kathmandu, Nepal
Attention: ▇. ▇▇▇▇▇▇▇, Senior Manager
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇
Attention: Corporate Trust Administration
International Finance Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: Director, Power Department
DEG-Deutsche Investitions-und
Entwicklungsgesellschaft mbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇
▇▇▇▇▇ (Mungersdorf)
Federal Republic of Germany
Attention: Infrastructure Department
Dear Sirs:
Reference is made to the Nepal Agency and Retention
Agreement (the "Agreement"), dated as of the Closing Date, among
Bhote Koshi Power Company Private Limited (the "Company"),
International Finance Corporation ("IFC"), DEG-Deutsche
Investitions-und Entwicklungsgesellschaft mbH ("DEG"), Wilmington
Trust Company, as Trustee (the "Trustee") and Nepal Grindlays
Bank Limited, as Agent (the "Agent"). Capitalized terms used
herein without definition shall have the meanings specified in
Schedule A to the General Conditions.
I. The Company hereby requests that, on __________,
the Agent, in accordance with Section 4.2 of the Agreement,
withdraw the following amounts of Rupees from the Nepal
Operations and Maintenance Sub-Account and transfer such amounts
to the payees indicated below:
Payee Amount of Payment
The Company hereby requests that, on , the
Agent, in accordance with Section 4.3 of the Agreement, withdraw
the following amounts of Dollars from the Nepal Dollar Sub-
Account and transfer such amounts to the payees indicated below:
Payee Amount of Payment
The Company hereby certifies that such withdrawals and transfers
are to be made to pay Operating and Maintenance Costs or Project
Costs.
II. The Company hereby certifies that:
(i) as of the date
hereof no Default or Event of
Default has occurred and is
continuing which has not been
waived by the Lenders [or, if
a Default exists, specifying
the nature and extent thereof
and what action the Company is
taking in respect thereto];*
(ii) a copy of this
Nepal Payment Requisition has
been timely delivered to the
Trustee, and each of the
Lenders in accordance with the
provisions of the Agreement.
The undersigned hereby certifies that he/she is an
Authorized Officer of the Company, and that, as such, is
authorized to execute and deliver this Nepal Payment Requisition
on behalf of the Company.
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
Title:
SCHEDULE B
FORM OF NEPAL DEPOSIT CERTIFICATE
[Date]
Nepal Grindlays Bank Limited
G.P.O. Box No. 3990
Naya Baneshwor
Kathmandu, Nepal
Attention: ▇. ▇▇▇▇▇▇▇, Senior Manager
Dear Sirs:
Reference is made to the Nepal Agency and Retention
Agreement (the "Agreement"), dated as of the Closing Date, among
Bhote Koshi Power Company Private Limited (the "Company"),
International Finance Corporation ("IFC"), DEG-Deutsche
Investitions-und Entwicklungsgesellschaft mbH ("DEG"), Wilmington
Trust Company, as Trustee (the "Trustee") and Nepal Grindlays
Bank Limited (the "Agent"). Capitalized terms used herein
without definition shall have the meanings specified in Schedule
A to the General Conditions.
In accordance with Section 3.2(a), the Trustee hereby
directs the Agent to withdraw the following amount from the Nepal
Retention Account (Account No. 1010215481001) or, if funds in the
Nepal Retention Account are insufficient, from the Nepal Reserve
Sub-Account (Account No. 1010215481003), and transfer such amount
to the Nepal Operations and Maintenance Sub-Account (Account No.
1010215481002): __________Rs.
The Trustee hereby directs the Agent to withdraw the
following amount from the Nepal Retention Account (Account No.
1010215481001) and transfer such amount to the Nepal Reserve Sub-
Account (Account No. 1010215481003): __________Rs.
The Trustee hereby directs the Agent to withdraw the
following amount from the Nepal Retention Account (Account No.
1010215481001) and transfer such amount to the Nepal ▇▇▇▇▇ Cash
Sub-Account (Account No. 1010215481004): __________Rs.
The Trustee hereby directs the Agent to convert into Dollars
at the earliest practicable date all Rupees remaining in the
Nepal Retention Account after the foregoing transfers have been
made, in accordance with the procedures set forth in the Nepal
Agency and Retention Agreement, and to transfer such Dollars as
follows: (i) to the Nepal Dollar Sub-Account: $ ;
(ii) through your correspondent bank in New York, to the Trustee
for deposit in the Offshore Retention Account: $ .
Wire transfer instructions are as follows:
Wilmington Trust Company
ABA Routing Number ▇▇▇▇▇▇▇▇▇
For Credit to Offshore Retention
Account (Account No. 43370-0)
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Ref: Bhote Koshi Power Company Private Limited
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By:
Name:
Title:
SCHEDULE C
PROCEDURE FOR CONVERSION OF RUPEES TO DOLLARS
1. Under the PPA, the Company will submit an invoice to
NEA for each Contract Month (each Nepalese calendar month) on or
before the fifth Business Day of each Contract Month commencing
with the first full Contract Month to occur after the date of
First Unit Delivery. (The Company will copy the Agent on each
such invoice.) Amounts owing by NEA are denominated in Dollars
and Rupees. The Dollar proportion of each payment by the NEA is
made at Nepal Rastra Bank's published selling rate of exchange on
the date of payment (the "Dollar Equivalency Rate").
2. NEA is required pursuant to the PPA to pay each invoice
within thirty (30) days of receipt.
3. Fifteen (15) days prior to the scheduled receipt of
such Rupee payment from NEA, the Company will submit to the Nepal
Rastra Bank the application required for approval (the "NRB
Approval") of the conversion of all or a portion of such payment
from Rupees into Dollars and transfer of the resulting amount to
the Offshore Retention Account.
4. If such payment from NEA is received on any Business
Day after 12:00 noon, Kathmandu time, or on any non-Business Day,
such payment will be placed by the Agent into the Nepal Retention
Account and the Agent will take the steps outlined in paragraph 5
on the next Business Day in Nepal. Amounts held on deposit in
the Nepal Retention Account will be invested overnight by the
Agent (whether or not specifically instructed to do so by the
Company) in Cash Equivalents.
5. If such payment from NEA is received on any Business
Day before 12:00 noon, Kathmandu time, then the Agent will place
in the Nepal Operations and Maintenance Sub-Account and the Nepal
Reserve Sub-Account on the same Business Day the amount specified
by the Trustee in a Nepal Deposit Certificate, subject to the
same being received before 12:00 noon.
6. At the direction of the Trustee, the remaining portion
of such payment will be converted by the Agent into Dollars at
the best rate then obtainable in the market by the Agent.
Further:
(a) The Agent will use its best efforts to convert the
remaining portion of such payment in the market at a rate at
least as favorable to the Company as the Dollar Equivalency Rate.
If it is able to convert the entire remaining portion of such
payment at the Dollar Equivalency Rate (or a better rate), on the
date of receipt of such payment, the Agent will effect such
conversion immediately.
(b) If the Agent is unable, as a consequence of a
temporary decline in the market conversion rate or a temporary
disruption in, or lack of sufficient depth in, the market for
Rupee/Dollar exchange, to convert the entire remaining portion of
such payment at a rate at least as favorable to the Company as
the Dollar Equivalency Rate, then the Agent shall, upon the
Company's request, immediately convert any part of the remaining
portion that it is able to convert at a rate at least as
favorable to the Company as the Dollar Equivalency Rate. If
there is any balance remaining, the Agent will consult with the
Company and if the Agent and the Company reasonably believe that
the market may improve during the next seven (7) Business Days,
the Agent, on the Company's request, will delay the conversion of
such remaining portion and will convert it on the one or more
days on or before the seventh (7th) Business Day following
receipt of such payment. If the Agent and the Company do not
reasonably believe that conditions may improve during the next
seven (7) Business Days, then paragraph (c) below will apply.
(c) If the Agent is unable to convert all or any part
of the remaining portion of such payment under paragraphs (a) or
(b) above it will, on receipt of the Company's request
accompanied by an application to Nepal Rastra Bank, apply to
Nepal Rastra Bank to effect the conversion, which conversion
shall be on terms directed or approved by the Trustee.
7. On the same date the Agent effects each conversion, or
if Nepal Rastra Bank effects any conversion, on the same date
Nepal Rastra Bank effects such conversion, the amount of the
Dollars obtained will be transferred to the Offshore Retention
Account or, if the Trustee has so instructed the Agent, to the
Nepal Dollar Sub-Account.
8. Amounts of Dollars to be transferred by the Agent to
the Offshore Retention Account will be credited by the Agent to
its account at a correspondent bank in New York (American Express
Bank, ANZ or any other bank satisfactory to the Trustee and the
Company), which will transfer such amounts for value on the same
day (or, if such day is not a business day in New York, on the
next business day in New York) to the Offshore Retention Account;
provided, that the Agent shall not be responsible for any delay
in the crediting of such amounts to the Offshore Retention
Account during any period in which its correspondent bank is
unable, for reasons entirely beyond the Agent's reasonable
control, to receive instructions from the Agent to credit the
relevant amounts on such date (so long as the Agent has properly
dispatched telex or other instructions and used every reasonable
effort to communicate with its correspondent bank).
9. In the event that the Agent is unable to effect a
conversion hereunder from Rupees to Dollars, the Agent will, upon
receipt of the direction or approval of the Trustee, convert such
Rupees to convertible currencies other than Dollars, all in
accordance with terms directed or approved by the Trustee.
SCHEDULE D
FEE SCHEDULE
In terms of Section 7.3 hereof the Company agrees to pay to the
Agent the following fees:
Documentation Fee:
A front-end fee of USD $10,000 or equivalent Nepali rupees
payable within thirty (30) days of signing the Agreement.
Retention Fee:
A retention fee at the rate of USD $1,500 or equivalent Nepali
rupees per annum or part thereof, payable on or before the
anniversary of the signing of the Agreement and every anniversary
thereafter until the Agreement is terminated.
Management Fee:
A management fee of USD $6,000 or equivalent Nepali rupees per
annum or part thereof payable on the day of receipt of the first
payment into the Nepal Retention Account and every anniversary
thereafter until the Agreement is terminated.
Remittance Fee:
A remittance fee at the rate of 0.025% of the face value of the
amount being transferred in the form of draft or telegraphic
transfers.
Other Charges:
Other charges as applicable payable from time to time for
services rendered as per the Agent's standard tariff of charges
and all out-of pocket expenses of the Agent in respect of, or
incident to, the performance, execution, delivery, and
enforcement of this Agreement.
_______________________________
* No transfers requested in any Nepal Payment Requisition
shall be made unless the Company certifies that no Event of
Default exists, except in accordance with Article 5 of the
Agreement.
