EXHIBIT NO. 148
EQUITY SUBSCRIPTION AGREEMENT
among
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
and
HIMAL INTERNATIONAL POWER CORPORATION LTD.
and
WILMINGTON TRUST COMPANY
Dated as of the Closing Date
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
ARTICLE 2
SUBSCRIPTION
Section 2.1. Issuance and Sale of Shares; Payment 2
Section 2.2. Method of Payment 3
ARTICLE 3
COVENANTS
Section 3.1. HIPC Covenants 3
Section 3.2. Indemnification 4
Section 3.3. Obligations Absolute 4
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations And Warranties 5
Section 4.2. Further Assurances 6
ARTICLE 5
MISCELLANEOUS
Section 5.1. Governing Law; Consent to Jurisdiction
and Venue; Sovereign Immunity 6
Section 5.2. Notices 7
Section 5.3. Benefit of Agreement 8
Section 5.4. No Waiver; Remedies Cumulative 8
Section 5.5. Severability 8
Section 5.6. Documents 8
Section 5.7. Counterparts 8
Section 5.8. Headings Descriptive 9
Section 5.9. Amendment or Waiver 9
Section 5.10. Limitation of Liability 9
EQUITY SUBSCRIPTION AGREEMENT
EQUITY SUBSCRIPTION 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 Xxx 0000 (the "Company"), HIMAL INTERNATIONAL
POWER CORPORATION LTD., a corporation organized and existing
under the laws of Nepal ("HIPC") and WILMINGTON TRUST COMPANY, a
Delaware banking corporation (the "Trustee"), on behalf of and
for the benefit of IFC.
PRELIMINARY STATEMENTS
The Company was 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 power plant,
pursuant to that certain IFC Investment Agreement between the
Company and IFC (the "IFC Investment Agreement"), but only if
HIPC enters into this Agreement to provide for the subscription
for shares of the Company as set forth herein.
DEG is willing to provide financing for the power plant,
pursuant to that certain DEG Investment Agreement between the
Company and DEG (the "DEG Investment Agreement," and together
with the IFC Investment Agreement, the "Investment Agreement"),
but only if HIPC enters into this Agreement to provide for the
subscription for shares of the Company as set forth herein. (IFC
and DEG are hereinafter referred to collectively as the "Lenders"
and individually as a "Lender").
The Company, IFC and DEG have entered into that certain
Investment Agreement General Conditions dated as of the Closing
Date (the "General Conditions").
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.
HIPC will benefit from the making of the aforesaid loans by
IFC and DEG.
NOW, THEREFORE, IT IS AGREED:
ARTICLE 1
DEFINITIONS
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
SUBSCRIPTION
Section 2.1. Issuance and Sale of Shares; Payment.
(a) (i) As of the Financial Closing Date, HIPC's
total equity commitment to the Project is two
million nine hundred forty nine thousand five
hundred Dollars ($2,949,500). As of the date
hereof, HIPC is the legal and beneficial owner of
zero (0) shares of the share capital of the
Company, par value Rs. 100 per share.
(ii) The Company agrees to issue and sell to
HIPC, and HIPC agrees to purchase, one hundred
twenty-eight thousand two hundred sixty-two shares
(128,262) of the share capital of the Company, par
value Rs. 100 per share, for a total purchase
price of one million two hundred eighty-two
thousand six hundred eighteen Dollars ($1,282,618)
(the "Initial Share Amount"). HIPC shall pay such
Initial Share Amount in full prior to the initial
Disbursements under the Investment Agreement and
prior to the initial subscription and disbursement
under the IFC Subscription. The parties
acknowledge that, to the extent that the Initial
Share Amount exceeds HIPC's pro-rata share of the
total outstanding equity prior to the initial
Disbursement under the Investment Agreement and
prior to the initial subscription and disbursement
under the IFC Subscription and the same results in
the aggregate equity payments of all shareholders
(other than IFC) exceeding the pro rata equity
funding requirements applicable to the initial
Disbursement under the Investment Agreement and
the initial subscription and disbursement under
the IFC Subscription, such excess can be factored
in connection with satisfying its the requirement
of funding equity pro rata with subsequent
Disbursements and subsequent subscriptions and
disbursements under the IFC Subscription.
(iii) HIPC represents and warrants that,
by the Financial Closing Date one hundred twenty-
eight thousand two hundred sixty-two (128,262)
shares for a total purchase price of one million
two hundred eighty-two thousand six hundred
eighteen Dollars ($1,282,618) of the Initial Share
Amount shall be paid to the Company.
(iv) The Company further agrees to issue and
sell to HIPC, and HIPC further agrees to purchase,
one hundred sixty-six thousand six hundred eighty-
eight (166,688) additional shares of the share
capital of the Company, par value Rs. 100 per
share, for an additional purchase price of one
million six hundred sixty-six thousand eight
hundred eighty-two Dollars ($1,666,882). Such
amount shall be paid in installments (each, a
"Subscription Amount Payment"), pro rata to the
proceeds of the Loans prior to the receipt by the
Company of such proceeds of the Loans.
(v) The Company shall deliver to HIPC
certificates representing the Subscribed Shares in
a manner and at such times, dates, and places to
be agreed upon by the parties hereto.
(b) If and to the extent that a Project Funds Shortfall
exists at any time, HIPC shall pay to the Company, on such date
or dates as the Company, the Trustee or either of the Lenders
shall specify in a written notice or written notices to HIPC,
such additional subscription amounts as are required pursuant to
the Share Retention and Project Funds Agreement (but in the event
of any conflict between a notice given by the Company and a
notice given by either of the Lenders or the Trustee, the notice
given by such Lender or the Trustee shall prevail).
(c) Notwithstanding paragraphs (a) and (b), at the option
of the Trustee or the Lenders following the occurrence and during
the continuation of an Event of Default, HIPC shall pay to the
Company the amount by which the Subscription Amount Payments
theretofore made by HIPC is less than two million nine hundred
forty nine thousand five hundred Dollars ($2,949,500), and such
payment shall be made by HIPC on such date as the Company, either
of the Lenders or the Trustee shall specify in a written notice
to HIPC (but in the event of any conflict between a notice given
by the Company and a notice given by any such Lender or the
Trustee, the notice given by such Lender or the Trustee shall
prevail).
Section 2.2. Method of Payment. HIPC shall pay the
Subscription Amount Payments no later than 11:00 a.m.
(Wilmington, Delaware time) in U.S. Dollars in immediately
available funds to the Trustee, for deposit in the Construction
Sub-Account (in the case of the Subscription Amount Payments made
under Section 2.1(a) hereof), or, if so directed by the Trustee,
in the Debt Payment Sub-Account (in the case of payments made
under Section 2.1(b) hereof), or to such other person or address
or account as the Trustee may from time to time specify in
writing to HIPC, without offset, abatement, withholding or
reduction of any kind. All such payments shall be applied in the
manner required under the Investment Agreement and the Trust and
Retention Agreement.
ARTICLE 3
COVENANTS
Section 3.1. HIPC Covenants.
(a) HIPC hereby covenants and agrees that, for so long as
it shall have any obligations hereunder and except as permitted
under Section 3.1(b) hereof, it shall at all times preserve and
maintain in full force and effect its existence as a company
under the laws of Nepal; and
(b) it shall not merge into or consolidate with any other
Person, change its form of organization or the scope or nature of
its business, or liquidate or dissolve itself (or suffer any such
liquidation or dissolution), or sell, lease, transfer or
otherwise dispose of all or any substantial portion of its
assets; provided, however, that nothing herein shall prevent HIPC
from encumbering, or transferring an interest in, its Shares
pursuant to its Share Pledge Agreement or otherwise to the extent
such encumbrance or transfer does not result in a Default or an
Event of Default under any Loan Document.
Section 3.2. Indemnification. HIPC shall defend,
indemnify and hold harmless the Company, the Trustee and each of
the Lenders from and against any and all costs, expenses,
liabilities, losses, damages, injunctions, suits, actions, fines,
penalties, claims and demands, of every kind or nature, including
attorney's fees and court costs, which are occasioned by or
result from any failure by HIPC to timely perform any of the
terms, agreements or covenants to be performed hereunder.
Section 3.3. Obligations Absolute.
(a) No compromise, alteration, amendment, modification,
extension, renewal, release or other change of, or waiver,
consent or other action in respect of any liability or obligation
under or in respect of, or of any of the terms, covenants or
conditions of, the Investment Agreement or any other Principal
Document, or any Security, shall in any way alter or affect any
of the obligations hereunder of the Company or HIPC.
(b) (i) The obligations of HIPC under this
Agreement are absolute and unconditional and shall
not be affected by (x) any default by the Company
in the performance or observance of any of its
agreements or covenants in any Loan Document, this
Agreement or any other Principal Document, (y) the
bankruptcy, insolvency, winding up or other
similar proceeding of the Company, HIPC or any
other Person, or (z) any other circumstance,
happening, condition or event whatsoever, whether
or not similar to any of the foregoing. The
obligations of HIPC under this Agreement shall not
be subject to any abatement, reduction,
limitation, impairment, termination, set-off,
defense, counterclaim or recoupment whatsoever or
any right to any thereof, and shall not be
released, discharged or in any way affected by any
reorganization, arrangement, compromise,
composition or plan affecting the Company or by
any lack of validity or enforceability of the
Investment Agreement or any document executed in
connection therewith, whether or not HIPC or the
Company shall have notice or knowledge of any of
the foregoing.
(ii) If the obligations of HIPC hereunder are
unenforceable by reason of the insolvency,
bankruptcy or reorganization of the Company or any
other Person, HIPC shall nonetheless pay any
amounts due hereunder directly to the Trustee.
(c) Each of HIPC and the Company hereby irrevocably waives,
to the extent that it may do so under applicable law, any defense
based on the adequacy of a remedy at law which may be asserted as
a bar to the remedy of specific performance in any action brought
against it.
(d) HIPC hereby irrevocably waives, to the extent it may do
so under applicable law, any protection to which it may be
entitled under bankruptcy, insolvency or similar laws of any
jurisdiction in the event of a Company Bankruptcy. In the event
a trustee in bankruptcy or the debtor-in-possession takes any
action (including without limitation the institution of any
action, suit or other proceeding) in a Company Bankruptcy for the
purpose of enforcing the obligations of HIPC under this
Agreement, HIPC hereby agrees, to the extent that it may do so
under applicable law, that it will not assert any defense, claim
or counterclaim denying liability thereunder on the basis that
this Agreement is an executory contract that cannot be assumed,
assigned or enforced. If a Company Bankruptcy shall occur, HIPC,
to the extent it may do so under applicable law, shall reconfirm
its pre-petition waiver of any protection to which it may be
entitled to under any such laws and, to give effect to such
waiver, HIPC consents to the assumption and enforcement of each
provision of this Agreement by the debtor-in-possession or the
Company's trustee in bankruptcy, as the case may be.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations And Warranties.
(a) HIPC and Company Representations and Warranties. HIPC
hereby represents and warrants, and the Company hereby represents
and warrants, solely as to itself, that as of the date hereof:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes its
valid and legally binding obligation;
(ii) 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; and
(iii) it has obtained all consents,
licenses and authorizations of all governmental
authorities required under applicable laws,
regulations, decrees or orders of or in any
applicable jurisdiction (which may legally be
obtained as of the date hereof) in connection with
the execution, delivery, performance, validity or
enforceability of this Agreement or the making of
any other payments to the Company in accordance
with this Agreement, and that such consents,
licenses and authorizations are in full force and
effect.
(b) Company Representations and Warranties. The Company
hereby represents and warrants that as of the date hereof:
(i) it is a company duly organized, validly
existing and in good standing under the laws of
the jurisdiction of its organization;
(ii) after giving effect to the terms of this
Agreement and the other Subscription Agreements
(A) seven hundred forty-one thousand five hundred
eighty-seven (741,587) shares of the Company will
be issued and outstanding on the Financial Closing
Date, (B) all shares of the Company will have been
duly authorized and validly issued, (C) no
subscription, warrant, option, convertible
security or other right (contingent or otherwise)
to purchase or acquire any shares of the share
capital of the Company will be authorized or
outstanding, other than pursuant to the Loan
Documents, (D) there will not exist any commitment
of the Company to issue any subscription, warrant,
option, convertible security or other such right
or to issue or distribute to holders of shares of
the Company any evidence of indebtedness or assets
of the Company, (E) the Company will have no
obligation (contingent or otherwise) to purchase,
redeem or otherwise acquire any shares of the
Company or any interest therein or to pay any
dividend or make any other distribution in respect
thereof other than pursuant to the Loan Documents,
and (F) all shares of the Company are and will be
identical in respect of rights and priorities.
Section 4.2. Further Assurances. In the event that any
additional consents, licenses or authorizations may be required
in connection with the execution, delivery, performance, validity
or enforceability of this Agreement or the making of any payment
in relation hereto, HIPC and the Company shall obtain all such
consents, licenses or authorizations and shall take such action
as shall be required of it in order to comply with the terms
hereof.
ARTICLE 5
MISCELLANEOUS
Section 5.1. Governing Law; Consent to
Jurisdiction and Venue; Sovereign Immunity.
(a) This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and be
governed by the laws of the State of New York without regard to
the conflicts of laws provisions thereof (other than Sections 5-
1401 and 5-1402 of the General Obligations Law of the State of
New York). Any legal action or proceeding against the Company or
HIPC with respect to this Agreement may be brought in the courts
of the State of New York in the Borough of Manhattan or of the
United States for the Southern District of New York and, by
execution and delivery of this Agreement, each of the Company and
HIPC hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each of the Company and HIPC agrees that a
judgment in any such action or proceeding shall be conclusive and
binding upon it, and may be enforced in any other jurisdiction,
including without limitation in Nepal, by a suit upon such
judgment, a certified copy of which shall be conclusive evidence
of the judgment. Each of the Company and HIPC hereby irrevocably
designates, appoints and empowers CT Corporation System, with
offices on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as its designee, appointee and agent to receive, accept
and acknowledge for and on its behalf, and in respect of its
property, service of any and all legal process, summons, notices
and documents which may be served in any such action or
proceeding. If for any reason such designee, appointee and agent
shall cease to be available to act as such, each of the Company
and HIPC agrees to designate a new designee, appointee and agent
in New York City. Each of the Company and HIPC further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to it, at its address set forth below, such
service to become effective ten (10) days after such mailing.
Nothing herein shall affect the right of any party to serve
process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company or HIPC in
Nepal or in any other jurisdiction.
(b) Each of the Company and HIPC hereby irrevocably waives
any objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement or any other Principal
Document to which the Company or HIPC is a party brought in the
courts referred to in paragraph (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any such
court that any action or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) HIPC acknowledges and agrees that the activities
contemplated by this Agreement are commercial in nature rather
than governmental or public, and therefore acknowledges and
agrees that the right of immunity does not and will not arise
with respect to such activities or in any legal action or
proceeding arising out of or relating to this Agreement in
respect of itself and its properties.
Section 5.2. 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 transmitted by facsimile to the number
specified below, upon acknowledgement of receipt by the
recipient, or (c) when sent by overnight courier service, the
Business Day following the date of delivery to such courier
service, or such later day as demonstrated by a bona fide receipt
therefor. Any party may from time to time designate by written
notice to the other parties another address to which notices are
to be sent.
For the Company: Panda Energy International, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Bhote Koshi Power Company Private Limited
KHA 0-000
Xxxxxxxx, Tahachal
Kathmandu, Nepal
Attention: Project Manager
Facsimile: 977-1-27-0027
For HIPC:
Address: x/x Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxx
Xxxxx
Attention: Chairman
Facsimile: 011 977-1-272201
For Wilmington Trust Company:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Section 5.3. Benefit of Agreement. 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 none of the parties may assign or
transfer any of its rights or obligations hereunder without the
prior written consent of the Lenders.
Section 5.4. No Waiver; Remedies Cumulative. No failure
or delay on the part of the Company in exercising any right,
power on privilege hereunder, and no course of dealing between
the Company and HIPC, 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
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder. The rights,
powers and remedies herein are cumulative and not exclusive of
any rights, powers or remedies which the Company would otherwise
have. No notice to or demand on HIPC in any case shall entitle
HIPC to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Company
to any other or further action in any circumstances without
notice or demand.
Section 5.5. 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 5.6. Documents. 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 or HIPC, as the case may be, which
translation shall be the governing version between the Company
and HIPC.
Section 5.7. Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties hereto
on 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 5.8. Headings Descriptive. The headings of the
Articles of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any
provision of this Agreement.
Section 5.9. Amendment or Waiver. 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 each of the parties hereto.
Section 5.10. Limitation of Liability. Wilmington Trust
Company in acting hereunder is acting not in its individual
capacity but solely as Trustee and shall be entitled to the
rights, protections and immunities, if any, of the Trustee under
the Trust and Retention Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered by their proper and duly
authorized officers of the day and year first written above.
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
By:
Name:
Title:
HIMAL INTERNATIONAL POWER CORPORATION LTD.
By:
Name:
Title:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By:
Name:
Title:
