EXHIBIT NO. 10.143.01
SPECIAL CONDITIONS
between
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
and
DEG-DEUTSCHE INVESTITIONS-und ENTWICKLUNGSGESELLSCHAFT mbH
Dated as of the Closing Date
TABLE OF CONTENTS
PAGE NOS.
ARTICLE 1
Special Conditions and General Conditions; Definitions
Section 1.1 Special Conditions and General Conditions 1
Section 1.3 General Definitions 1
ARTICLE 2
The Project and Financial Plan
Section 2.1 The Project 2
Section 2.2 Financial Plan - Estimated Project Cost. 2
ARTICLE 3
Agreement for the DEG Loan
Section 3.1 The DEG Loan. 3
Section 3.2 Disbursement Procedure. 3
Section 3.3 Interest 3
Section 3.4 Fees. 3
Section 3.5 Repayment. 4
Section 3.6 Voluntary Prepayment. 5
Section 3.7 Mandatory Prepayment. 6
Section 3.8 Prepayment Premium. 9
Section 3.9 Additional Interest. 9
Section 3.10 Payments in Deutsche Marks. 10
Section 3.11 Allocation of Partial Payments 11
Section 3.12 Suspension or Cancellation of Disbursements
by DEG 11
Section 3.13 Termination of Commitment. 12
Section 3.14 Cancellation by the Company 12
Section 3.15 Funding Costs 12
Section 3.16 Maintenance Amount 12
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties Contained
in General Conditions. 13
Section 4.2 Rights and Remedies not Limited 13
ARTICLE 5
Conditions of Disbursement
Section 5.1 Conditions of Initial Disbursement 13
Section 5.2 Conditions of All Disbursements 13
Section 5.3 No Waivers 14
ARTICLE 6
Particular Covenants
Section 6.1 Particular Covenants. 14
ARTICLE 7
Events of Default
Section 7.1 Events of Default 14
ARTICLE 8
Miscellaneous
Section 8.1 Notices 14
Section 8.2 English Language 14
Section 8.3 Expenses 15
Section 8.4 Jury Trial 15
Section 8.5 Confidential Information 15
SCHEDULE 2.2(a)
FINANCING PLAN 17
SCHEDULE 2.2(b)
PROJECT COSTS 18
SCHEDULE 3.2(a)(i)
FORM OF DEG DISBURSEMENT REQUEST 20
SCHEDULE 3.2(a)(ii)
FORM OF DEG LOAN DISBURSEMENT RECEIPT 23
SPECIAL CONDITIONS
AGREEMENT, dated as of the Closing Date, between BHOTE KOSHI
POWER COMPANY PRIVATE LIMITED, a private limited liability
company organized and existing under the laws of the Kingdom of
Nepal (the "Company") and DEG-DEUTSCHE INVESTITIONS-und
ENTWICKLUNGSGESELLSCHAFT mbH, a company organized and existing
under the laws of the Federal Republic of Germany ("DEG").
(Capitalized terms used herein shall be defined as provided in
Section 1.3 hereof).
WHEREAS, the Company has requested DEG to make a term loan
to it on the terms and subject to the conditions set forth in
this Agreement, for the purpose of financing a portion of the
costs of construction of the Company's proposed run of the river
hydroelectric power facility with a rated capacity of 36 MW
(nominal net) and a 25 km transmission line, the Upper Bhote
Koshi electric power project, in the Sindhupalchok District of
Nepal;
WHEREAS, DEG is willing to make such a term loan to the
Company on the terms and subject to the conditions set forth in
this Agreement, for the purpose described above;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Special Conditions and General Conditions; Definitions
Section 1.1 Special Conditions and General Conditions.
This document is entitled "DEG Special Conditions." A document
entitled "Investment Agreement General Conditions" (the "General
Conditions") is appended hereto. Such two documents together
constitute the DEG Investment Agreement, dated the date of the
Special Conditions between DEG and the Company (collectively,
this "Agreement"). If any provision of the General Conditions is
inconsistent with a provision of the DEG Special Conditions, the
provision of the DEG Special Conditions shall prevail.
Section 1.2 Principles of Construction. For all purposes
of this Agreement, (i) capitalized terms used but not otherwise
defined herein shall have the meanings set forth in Schedule A to
the General Conditions (as amended or supplemented from time to
time) and (ii) the principles of construction set forth in
Schedule A to the General Conditions shall apply.
Section 1.3 General Definitions.
"DEG Loan" shall have the meaning ascribed to it in Section
3.1 hereof.
"DEG Loan Interest Rate" shall mean 9.60% per annum;
provided, however, that in the event any part of the DEG Loan has
been undisbursed and (i) if in accordance with Section 3.5(c)
such undisbursed amount reduces the loan repayment schedule by
one full payment of principal, the DEG Loan Interest Rate shall
at such time be reduced by .05% or (ii) if in accordance with
Section 3.5(c) such undisbursed amount reduces the loan repayment
schedule by two or more full payments of principal, the DEG Loan
Interest Rate shall at such time be reduced by .1%.
"Disbursement Request" shall mean, for purposes of this
Agreement, a request for a Loan Disbursement, submitted by the
Company to DEG, in accordance with the provisions of Section 3.2
hereof.
"DM" or "Deutsche Marks" shall mean the freely transferable
lawful currency of the Federal Republic of Germany, provided that
to the extent so required and pursuant to the general principles
of currency law, where any amount is outstanding or expressed in
Deutsche Marks under this Agreement or the other Loan Documents,
such amount so outstanding or so expressed shall be deemed to be
so outstanding or so expressed, as the case may be, in units of
the Euro at the time when Deutsche Marks are replaced by the Euro
pursuant to the applicable regulations of the European Union
and/or of the Federal Republic of Germany and DEG has notified
the Company at least sixty (60) days in advance that payments
shall thereafter be made in units of the Euro.
"Euro" shall mean the common European currency, as and when
such currency is introduced and reorganized by applicable law of
the European Union and/or the Federal Republic of Germany as the
new European currency.
"Loan Disbursement" shall mean, for purposes of this
Agreement, any disbursement of any portion of the DEG Loan.
ARTICLE 2
The Project and Financial Plan
Section 2.1 The Project. The project to be financed is
the Facility, the Site, all auxiliary facilities, utilities and
the sites thereof, the construction, equipping, placing into
operation, and operation of the Facility, and as otherwise
described in the Letter of Information.
Section 2.2 Financial Plan - Estimated Project Cost.
(a) The proposed sources of financing for the Project are
set forth on Schedule 2.2(a) hereof.
(b) As of the date hereof, the total estimated cost of the
Project is set forth on Schedule 2.2(b) hereof.
ARTICLE 3
Agreement for the DEG Loan
Section 3.1 The DEG Loan.
(a) On the terms and subject to the conditions of this
Agreement, DEG agrees to lend to the Company the amount of up to
Twenty One Million Deutsche Marks (DM21,000,000) (the "DEG
Loan").
(b) The DEG Loan is not revolving in nature, and any
amounts repaid, prepaid or canceled pursuant to the terms of this
Agreement may not be re-borrowed.
Section 3.2 Disbursement Procedure.
(a) The Company may request Disbursements of the DEG Loan
by delivering to DEG, at least ten (10) Business Days prior to
the proposed date of Disbursement, a DEG Disbursement Request
substantially in the form of Schedule 3.2(a)(i) hereof, and a
receipt substantially in the form of Schedule 3.2(a)(ii) hereof.
(b) DEG shall make Disbursements of the DEG Loan to the
credit of the Company into the Offshore Retention Account in
accordance with the provisions of the Trust and Retention
Agreement.
(c) Each Disbursement of the DEG Loan shall be made in an
aggregate amount of not less than One Million Deutsche Marks
(DM1,000,000), and there shall be no more than eight (8)
Disbursements of the DEG Loan.
(d) Each Disbursement of the DEG Loan will be made on a pro
rata basis with a corresponding Disbursement of the IFC Loans,
such that the ratio of the amount of each Disbursement of the DEG
Loan to the total amount of the DEG Loan shall be equal to the
ratio of the amount of each Disbursement of the IFC Loans to the
total amount of the IFC Loans.
Section 3.3 Interest. Subject to Section 3.9 hereof, the
Company shall pay interest on the DEG Loan from time to time
outstanding in accordance with this Section 3.3. Interest shall
accrue from day to day and shall be payable in arrears on the
Interest Payment Dates. The Company shall pay interest at the
DEG Loan Interest Rate on the full amount of the DEG Loan
outstanding from time to time. The interest payable on any
Interest Payment Date shall include interest accruing from and
including the last Interest Payment Date through the day just
preceding the current Interest Payment Date. Interest shall be
pro-rated on the basis of a 360-day year and 30 day months in the
relevant interest period.
Section 3.4 Fees.
(a) The Company shall pay to DEG in Deutsche Marks:
(i) a commitment fee at the rate of two
percent (2.0%) per annum on that part of the DEG
Loan as shall not, from time to time, have been
canceled by DEG or disbursed to the Company, and
in accordance with subsection (b) below;
(ii) a front-end fee for the DEG Loan of an
amount of one percent (1.0%) of the total amount
of the DEG Loan, to be paid within thirty (30)
days after the date of this Agreement, but in any
event prior to the date of the first DEG Loan
Disbursement; and
(iii) an annual loan fee of Thirteen
Thousand One Hundred Twenty-Five Deutsche Marks
(DM13,125), to be paid on the first Interest
Payment Date and every second Interest Payment
Date thereafter.
(b) The commitment fee specified in subsection (a) (i)
above in respect of the DEG Loan commences to accrue on the date
this Agreement is executed; and
(i) is pro-rated on the basis of a 360-day
year for the actual number of days elapsed; and
(ii) is payable by the Company with respect
to the DEG Loan, semi-annually in arrears, on
March 15 and September 15 in each year; the first
such payment to be made on March 15, 1998.
Section 3.5 Repayment.
(a) The Company shall repay the DEG Loan on each Principal
Payment Date in accordance with the following loan repayment
schedule:
Date Payment Due Installment (DM)
1. March 15, 2001 562,900.00
2. September 15, 2001 562,819.84
3. March 15, 2002 627,834.36
4. September 15, 2002 627,008.67
5. March 15, 2003 672,836.65
6. September 15, 2003 705,491.66
7. March 15, 2004 739,731.52
8. September 15, 2004 766,832.42
9. March 15, 2005 817,045.97
10. September 15, 2005 844,548.05
11. March 15, 2006 897,245.57
12. September 15, 2006 930,012.06
13. March 15, 2007 985,441.21
14. September 15, 2007 1,017,991.50
15. March 15, 2008 1,079,408.96
16. September 15, 2008 1,131,796.27
17. March 15, 2009 1,186,726.12
18. September 15, 2009 1,242,496.74
19. March 15, 2010 1,306,118.22
20. September 15, 2010 1,365,723.62
21. March 15, 2011 1,435,079.12
22. September 15, 2011 1,494,911.47
TOTAL 21,000,000.00
(b) The dates for payment of principal of the DEG Loan are
intended to coincide with the relevant Interest Payment Dates.
(c) If any part of the DEG Loan has been undisbursed on
September 30, 2000 or any part of the DEG Loan has been prepaid,
such undisbursed or prepaid parts of the DEG Loan shall be set-
off against the repayment installments in inverse order of
maturity to reduce the term of the DEG Loan. DEG shall (i)
recalculate the amortization schedules set out in subsection (a)
above accordingly and deliver the same to the Company, and (ii)
upon delivery to the Company of the properly recalculated
amortization schedules, this Agreement will be deemed to have
been amended to substitute such recalculated amortization
schedules for subsection (a) above.
Section 3.6 Voluntary Prepayment.
(a) The Company may, on any Interest Payment Date, prepay
all or any part of the DEG Loan then outstanding, on not less
than thirty (30) days' written notice to DEG, but only if:
(i) the Company simultaneously pays the
prepayment premium specified in Section 3.8 hereof
in respect of any outstanding balance of the DEG
Loan, with respect to the portion of the DEG Loan
so prepaid;
(ii) the Company simultaneously pays (x) all
accrued interest on the amount of the DEG Loan to
be prepaid, and (y) all other amounts then payable
under this Agreement;
(iii) for a partial prepayment, such
prepayment is in an aggregate amount of not less
than One Million Deutsche Marks (DM1,000,000);
(iv) the Company simultaneously prepays, pro
rata, the outstanding principal amount of the IFC
Loans (or portion thereof, as applicable),
together with all accrued interest on the
principal amounts of the Loans (or portions
thereof, as applicable), the Maintenance Amount
(if any) on the Loans (or portions thereof, as
applicable) and all other amounts then due
hereunder or under any of the other Loan
Documents; and
(v) if DEG so requires, the Company delivers
to DEG, prior to the date of prepayment, evidence
satisfactory to DEG that all Governmental
Approvals necessary in respect of the prepayment
have been obtained or an opinion of counsel, in
form and substance reasonably satisfactory to DEG,
that none are required.
(b) Amounts prepaid under this Section and Section 3.7
shall be applied by DEG to all respective outstanding repayment
installments of the DEG Loan in inverse order of maturity.
(c) Upon delivery of a notice in accordance with subsection
(a) above, the Company shall make the prepayment in accordance
with the terms of that notice.
(d) The Company may not request Disbursement of amounts
prepaid under this Agreement.
Section 3.7 Mandatory Prepayment.
(a) On the Purchase Date, all Obligations owing to DEG
relating to the DEG Loan hereunder and under the Loan Documents
shall become immediately due and payable without any action on
the part of DEG, and the Company shall pay to DEG an amount equal
to all such Obligations due and owing to DEG, including, without
duplication, all accrued interest on the principal amount of the
DEG Loan to be prepaid and all other amounts then due to DEG
hereunder.
(b) The Company shall prepay, pro rata, the outstanding
principal amount of the DEG Loan (or portion thereof, as
applicable) upon the prepayment by the Company of any of the
other Loans (or portions thereof, as applicable), together with
all accrued interest on the principal amount of the DEG Loan (or
portion thereof, as applicable), the Maintenance Amount (if any)
on the DEG Loan (or portion thereof, as applicable) and all other
amounts then due hereunder or under any of the other Loan
Documents.
(c) Insurance Proceeds shall be applied as follows:
(i) All Insurance Proceeds relative to any
single loss in excess of seven hundred fifty
thousand Dollars ($750,000) shall be paid by the
respective insurers directly to the Trustee. All
Insurance Proceeds relative to a single recovery
of seven hundred fifty thousand Dollars ($750,000)
or less shall be paid directly to the Company. If
any Insurance Proceeds relative to any single loss
in excess of seven hundred fifty thousand Dollars
($750,000), or, during the occurrence and
continuation of an Event of Default, relative to
any loss are paid to the Company, such Insurance
Proceeds shall be received only in trust for the
Lenders, shall be segregated from other funds of
the Company, and shall be promptly paid over to
the Trustee in the same form as received (with any
necessary endorsement) for deposit in the
Insurance Proceeds Sub-Account. If any Insurance
Proceeds are paid to DEG, DEG shall promptly pay
over such Insurance Proceeds to the Trustee for
deposit in the Insurance Proceeds Sub-Account.
(A) If there does not exist an
Event of Default, Insurance Proceeds relative
to a single loss of seven hundred fifty
thousand Dollars ($750,000) or less shall be
applied by the Company to pay the necessary
costs of repair, restoration or replacement
of the Project (in each case, to the extent
such Insurance Proceeds were paid in respect
of physical loss or damage thereto). After
applying such amount, any excess Insurance
Proceeds shall be delivered to the Trustee
for deposit in the Revenue Sub-Account.
(B) If there does not exist an
Event of Default and if there shall occur
damage, destruction or casualty with respect
to which Insurance Proceeds in excess of
seven hundred fifty thousand Dollars
($750,000) but less than five million Dollars
($5,000,000) are payable, and if (I) the
Company promptly (and, in any event, within
30 days after the occurrence of such damage,
destruction or casualty) gives written notice
to DEG that the Company wishes to repair,
restore or replace the Project to the
condition that it was in immediately prior to
such damage, destruction or casualty, (II)
the Insurance Proceeds received by the
Company or the Trustee together with funds
otherwise available to the Company, will be
sufficient to cover all costs and expenses
necessary to repair, restore or replace the
Project and to cover the Operating and
Maintenance Costs and the Debt Service
payable by the Company during the period
necessary to repair, restore or replace the
Project, (III) the repair, restoration or
replacement of the Project is technically and
economically feasible, (IV) after giving
effect to any proposed repair, restoration or
replacement, no Default or Event of Default
or a default under any Principal Document
shall exist, (V) DEG shall receive an opinion
of counsel in form and substance reasonably
satisfactory to DEG or other evidence
satisfactory to DEG that neither any
applicable Governmental Approval nor any
Principal Document (other than Non-Material
Agreements) will terminate during the period
necessary to repair, restore or replace the
Project and no applicable Governmental
Approval, or amendment to this Agreement or
the Security Documents or any other
instrument, is necessary for the purpose of
subjecting the repair, restoration or
replacement to the Liens of the Security
Documents except such, if any, as shall have
been delivered to DEG, and (VI) DEG shall
have received from the Company and the
Independent Engineer such certificates or
other evidence as DEG may reasonably require
regarding the foregoing matters, then DEG
shall direct the Trustee in a written notice
to deliver the Insurance Proceeds received in
connection with the damage, destruction or
casualty to the Project to the Company and
the Company shall apply such Insurance
Proceeds to pay for the necessary costs of
repair, restoration or replacement of the
Project and to pay for Operating and
Maintenance Costs and Debt Service when due.
After making such payments to the Company,
any excess Insurance Proceeds shall be
deposited in the Revenue Sub-Account.
(ii) If there shall occur damage, destruction
or casualty with respect to which Insurance
Proceeds in excess of five million Dollars
($5,000,000) are payable, DEG may, after
consulting with the Company during the 30-day
period following such damage, destruction or
casualty, choose to apply the Insurance Proceeds
to prepay a principal amount of the DEG Loan at
the time outstanding, pro rata with prepayment of
the IFC Loans, together with interest accrued
thereon or fees accrued in connection therewith to
the prepayment date. In addition, if Insurance
Proceeds have been paid pursuant to clause
(b)(i)(B) above and the Company (I) has not
notified DEG promptly that it wishes to repair,
restore or replace the Project or (II) has not
otherwise complied with the provisions of
clause (b)(i) above relative to the repair,
restoration or replacement of the Project, DEG may
choose to apply the Insurance Proceeds to prepay
the DEG Loan, pro rata with prepayment of the IFC
Loans, together with accrued interest.
(iii) Amounts paid under this
subsection (c) shall be applied by DEG to all
respective outstanding repayment installments of
the DEG Loan in inverse order of maturity.
(d) Upon the occurrence of a Capacity Shortfall, the
Company shall pay, or cause to be paid, to DEG the Performance
Liquidated Damages paid by the EPC Contractor under the EPC
Contract with respect to such Capacity Shortfall to prepay a
principal amount of the DEG Loan equal to (i) the principal
amount outstanding under the DEG Loan, multiplied by (ii) the
Capacity Shortfall Percentage and shall pay, or cause to be paid,
to IFC the Performance Liquidated Damages paid by the EPC
Contractor under the EPC Contract with respect to such Capacity
Shortfall to prepay a principal amount of the IFC Loans equal to
(i) the principal amount outstanding under the IFC Loans,
multiplied by (ii) the Capacity Shortfall Percentage. Such
prepayment of the DEG Loan shall be applied as provided in
Section 3.6(b) hereof. To the extent there are excess
Performance Liquidated Damages which have been paid by the EPC
Contractor and are remaining after the above-referenced
prepayment to DEG and IFC, such excess shall be applied to repay
equity in an amount equal to (x) the Dollar amount which has then
been paid in to the Company for the purchase of Shares,
multiplied by (y) the Capacity Shortfall Percentage. Such amount
shall be divided pro rata among all shareholders of the Company.
After such application, any remaining Performance Liquidated
Damages shall be transferred to the Revenue Sub-Account and
applied in accordance with the Trust and Retention Agreement.
(e) The Company shall prepay the outstanding principal
amount of the DEG Loan upon the occurrence of the Event of
Default described in Section 7.1(k) of the General Conditions,
together with accrued interest on the principal amount of the DEG
Loan to be prepaid and all other amounts then due to DEG
hereunder.
(f) The Company shall pay the prepayment premium as
specified in Section 3.8 hereof in connection with any mandatory
prepayments pursuant to Sections 3.7(a) (but only if and to the
extent that there remains any proceeds of the Purchase Price paid
by HMGN and received by the Company after (i) the aggregate
amount of all Obligations owing to DEG have been paid in full and
(ii) the shareholders of the Company at such time have recovered
the aggregate amount of their total paid in equity of the Company
to the extent provided in Section 6.3 of the Project Agreement),
and Section 3.7(e) hereof.
Section 3.8 Prepayment Premium. On the date of any
prepayment of the DEG Loan in accordance with Section 3.6,
3.7(a), 3.7(b) or 3.7(e) hereof, the Company shall pay a premium
of an amount in Deutsche Marks equal to the difference between
the Net Present Value of the Anticipated Income Stream and the
Net Present Value of the Available Income Stream or in the case
of a partial prepayment, the same proportion of such difference
as the proportion which the amount of the DEG Loan to be prepaid
bears to the amount of the DEG Loan then outstanding, all as more
particularly described below.
For the purposes of this subsection (a), "Anticipated Income
Stream" means the aggregate interest payments which would have
been due on the DEG Loan at the DEG Loan Interest Rate for the
period from the prepayment date until the final scheduled
maturity date assuming that no prepayment had taken place and
further assuming that the DEG Loan repayment schedule set forth
in Section 3.5 hereof had been adhered to and that all payments
had been made on their due dates.
For the purposes of this subsection (a), "Available Income
Stream" means the interest payments which would have been due on
the DEG Loan at a rate per annum equal to the Fixed Rate Swap
Equivalent for the period from the prepayment date until the
final scheduled maturity date assuming that no prepayment had
taken place and further assuming that the DEG Loan repayment
schedule set forth in Section 3.5 hereof had been adhered to and
that all payments had been made on their due dates.
For the purposes of this subsection (a), the "Net Present
Value" means the value of the relevant Income Stream discounted
(with stops on the same dates as would have been Interest Payment
Dates) back to the prepayment date from each of the relevant
Interest Payment Dates at a discount rate equal to the Fixed Rate
Swap Equivalent.
The determination by DEG of the prepayment premium under
this Section 3.8 shall be final and conclusive unless the Company
shows, to the satisfaction of DEG, that such determination
involved clerical error.
Section 3.9 Additional Interest.
(a) Without limiting the remedies available to DEG under
this Agreement or otherwise and to the maximum extent permitted
by applicable law, if the Company fails to make any payment of
principal or interest (including interest payable pursuant to
this Section) or any other payment on or before its due date as
specified in this Agreement (whether at stated maturity or upon
prematuring by acceleration or otherwise) or, if not so
specified, as notified by DEG to the Company, the Company shall
pay in Deutsche Marks, by way of liquidated damages, in respect
of the amount of any DEG Loan payment due and unpaid, interest at
the DEG Loan Interest Rate plus two percent (2.0%) per annum from
the date any such payment became due. Such interest is payable
on demand, or if not demanded, on each Interest Payment Date
after such failure.
(b) The obligation of the Company to pay liquidated damages
as provided in paragraph (a) above shall be without prejudice to
its obligation to pay principal and interest in accordance with
Sections 3.5 and 3.3 hereof and any other amounts payable under
this Agreement.
Section 3.10 Payments in Deutsche Marks.
(a) The Company shall make all payments of principal,
interest, fees, and any other payment due to DEG under this
Agreement in Deutsche Marks, no later than 9:00 a.m., Central
European Time, on the date when due, in immediately available
funds, at Westdeutsche Landesbank Koeln, account number 40 60 66,
bank code 370 500 00, or at such other bank as DEG from time to
time designates to the Company and the Trustee.
(b) If any date for payment under this Agreement shall not
be a Business Day, then such payment shall be made on or by the
next succeeding Business Day unless, in the case of payments of
principal or interest, that next succeeding Business Day falls in
a different calendar month, in which case that payment shall be
made on the immediately preceding Business Day. Interest, fees,
including, without limitation, commitment fees, and charges (if
any) shall continue to accrue for the period from the due date
which is not a Business Day to that next succeeding Business Day,
unless that next succeeding Business Day falls in a different
calendar month, in which case such amounts shall accrue to and be
payable on the immediately preceding Business Day.
(c) The tender or payment of any amount payable under this
Agreement (whether or not by recovery under a judgment) in any
currency other than Deutsche Marks does not novate, discharge or
satisfy the obligation of the Company to pay in Deutsche Marks
all amounts payable under this Agreement except to the extent DEG
actually receives Deutsche Marks in its account at Westdeutsche
Landesbank Koeln, account number 40 60 66, bank code 370 500 00,
or at such other bank as DEG from time to time designates to the
Company and the Trustee.
(d) If a currency other than Deutsche Marks is tendered or
paid (or recovered under any judgment) and the amount DEG
receives at its account at Westdeutsche Landesbank Koeln, account
number 40 60 66, bank code 370 500 00, or at such other bank as
DEG from time to time designates to the Company and the Trustee,
upon conversion at the then-market rate of exchange, falls short
of the full amount of Deutsche Marks owed to DEG, then the
Company shall continue to owe DEG, as a separate obligation, the
amount of the shortfall (regardless of any judgment for any other
amounts due under this Agreement).
(e) Notwithstanding subsections (a) through (d) above, DEG
may require the Company to pay (or reimburse DEG) in any currency
other than Deutsche Marks for:
(i) any taxes and other amounts payable
under the provisions of this Agreement; and
(ii) any fees, costs and expenses payable
under Section 8.3 hereof and Section 8.1 of the
General Conditions;
to the extent those taxes, amounts, fees, costs, and expenses are
payable in that other currency.
Section 3.11 Allocation of Partial Payments. If DEG at
any time receives less than the full amount then due and payable
to it under this Agreement, DEG may allocate and apply such
payment in any way or manner and for such purpose or purposes
under this Agreement as DEG in its sole discretion determines,
notwithstanding any instruction that the Company may give to the
contrary.
Section 3.12 Suspension or Cancellation of Disbursements
by DEG.
(a) DEG may, by notice to the Company, suspend or cancel
the right of the Company to Disbursements of the DEG Loan, in
whole or in part:
(i) if the first Disbursement has not been
made by June 1, 1998, or such other date as the
parties agree;
(ii) if any Event of Default or Default shall
have occurred and be continuing, or if an
expropriation, condemnation, requisition,
confiscation, seizure or nationalization of all or
any substantial part of the Project or other
assets of the Company or of its share capital or
the dissolution or disestablishment of the Company
or other action that would prevent the Company or
its officers from carrying on all or a substantial
part of the Company's business or operations
shall, in the reasonable opinion of DEG, be
imminent;
(iii) if, at any time in the reasonable
opinion of DEG, there shall exist any situation
which indicates that performance by the Company of
any of its obligations under this Agreement cannot
be expected;
(iv) if the IFC Loans have been suspended or
cancelled; or
(v) on or after September 30, 2000;
and in the event of any such cancellation, the Company shall pay
to DEG the prepayment premium specified in Section 3.8 hereof in
respect of any undisbursed portion of the DEG Loan, all fees
payable under Section 3.4 hereof, all breakage or similar costs,
expenses, or losses arising out of such cancellation, and all
other amounts then due and payable under this Agreement.
(b) Upon the giving of any such notice, the right of the
Company to receive, and the obligation of DEG to disburse, the
undisbursed part of the DEG Loan shall be suspended or canceled,
as the case may be. The exercise by DEG of its right of
suspension does not preclude DEG from exercising its right of
cancellation, either for the same or any other reason. A
suspension does not limit any other provision of this Agreement.
Section 3.13 Termination of Commitment. The commitment of
DEG to make any Disbursement of the DEG Loan hereunder shall
automatically terminate in accordance with the provisions of
Article 7 of the General Conditions.
Section 3.14 Cancellation by the Company. The Company
may, by notice to DEG, irrevocably request DEG to cancel the
undisbursed portion of the DEG Loan on the date specified in such
request (which shall be an Interest Payment Date no earlier than
thirty (30) Business Days after the date of the request). If DEG
is reasonably satisfied that the Company has sufficient long-term
funding available, on terms satisfactory to DEG, to satisfy the
Financial Plan, and provided that DEG receives the prepayment
premium specified in Section 3.8 hereof in respect of any
undisbursed portion of the DEG Loan, all fees payable under
Section 3.4 hereof, all breakage or similar costs, expenses or
losses arising out of such cancellation, and all other amounts
then due and payable under this Agreement, then DEG shall cancel
the entire undisbursed portion of the DEG Loan effective as of
that Interest Payment Date.
Section 3.15 Funding Costs.
(a) If the Company:
(i) fails to pay any amount due under this
Agreement on its due date, or to borrow in
accordance with a DEG Disbursement Request or to
prepay in accordance with a notice of prepayment;
or
(ii) prepays all or any portion of the DEG
Loan on a date other than an Interest Payment
Date;
and as a result DEG incurs any cost, expense or loss, then the
Company shall immediately pay to DEG the amount which DEG from
time to time notifies to the Company as being the aggregate of
those costs, expenses and losses incurred.
(b) For the purposes of this Section 3.15 and Section 3.14
hereof, "cost, expense or loss" include any interest paid or
payable to carry any unpaid amount and any premium, penalty or
expense incurred to liquidate or obtain third party deposits or
borrowings in order to make, maintain or fund all or any part of
the DEG Loan (but in the case of a late payment, after taking
into account any additional interest received under Section 3.9
hereof).
Section 3.16 Maintenance Amount. On each Interest Payment
Date, the Company shall pay, in addition to interest, the amount
which DEG from time to time notifies to the Company in a
Maintenance Amount Certification as being the aggregate
Maintenance Amount of DEG accrued and unpaid prior to that
Interest Payment Date.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties Contained in
General Conditions.
(a) The Company confirms the representations and warranties
set forth in Article 4 of the General Conditions as if made as of
the date hereof, which representations and warranties are
incorporated by reference herein as if fully set forth herein.
(b) The Company warrants to DEG that each of such
representations is true and correct in all material respects as
of the date of this Agreement and that none of them omits any
matter the omission of which makes any of such representations
misleading in any material respect. The representations referred
to in Section 4.1 hereof shall survive the execution and delivery
of this Agreement and any Disbursement of the DEG Loan.
Section 4.2 Rights and Remedies not Limited. DEG's
rights and remedies in relation to any misrepresentation or
breach of warranty on the part of the Company are not prejudiced:
(a) by any investigation by or on behalf of DEG into the
affairs of the Company;
(b) by the execution or the performance of this Agreement
or any other Principal Document; or
(c) by any other act or thing which may be done by or on
behalf of DEG in connection with this Agreement or any other
Principal Document and which might, apart from this Section,
prejudice such rights or remedies.
ARTICLE 5
Conditions of Disbursement
Section 5.1 Conditions of Initial Disbursement. The
obligation of DEG to make the initial Disbursement of the DEG
Loan shall be subject to the fulfillment, in a manner
satisfactory to DEG, prior to or concurrently with the making of
such initial Disbursement of the DEG Loan, of the conditions set
forth in Section 3.1 of the General Conditions.
Section 5.2 Conditions of All Disbursements. The
obligation of DEG to make any Disbursement hereunder shall also
be subject to the fulfillment, in a manner satisfactory to DEG,
prior to or concurrently with the making of such Disbursement of
the conditions set forth in Sections 3.2, 3.3, 3.4 and 3.5 of the
General Conditions. The obligation of DEG to make any Disburse
ments of the DEG Loan shall also be subject to (i) compliance by
the Sponsor Shareholders with their obligations described in
Section 2.1 of the Subscription Agreements, and (ii) the
subscription and payment (in an amount which is pro rata to the
corresponding Disbursement of the DEG Loan) by IFC for the IFC
Shares as provided for under Article 4 of the IFC Special
Conditions.
Section 5.3 No Waivers.
(a) The rights and remedies of DEG in relation to any
misrepresentations or breach of warranty on the part of the
Company shall not be prejudiced by any investigation by or on
behalf of DEG into the affairs of the Company, by the execution
or the performance of this Agreement or by any other act or thing
which may be done by or on behalf of DEG in connection with this
Agreement and which might, apart from this Section 5.3(a),
prejudice such rights or remedies.
(b) No course of dealing or waiver by DEG in connection
with any condition of Disbursement under this Agreement shall
impair any right, power or remedy of DEG with respect to any
other condition of Disbursement, or be construed to be a waiver
thereof; nor shall the action of DEG in respect of any
Disbursement affect or impair any right, power or remedy of DEG
in respect of any other Disbursement.
(c) Unless otherwise notified to the Company by DEG and
without prejudice to the generality of paragraph (a) above, the
right of DEG to require compliance with any condition under this
Agreement which may be waived by DEG in respect of any
Disbursement is expressly preserved for the purposes of any subse
quent Disbursement.
ARTICLE 6
Particular Covenants
Section 6.1 Particular Covenants. The Company shall
observe and perform the covenants set forth in Articles 5 and 6
of the General Conditions hereof.
ARTICLE 7
Events of Default
Section 7.1 Events of Default. If one or more of the
Events of Default specified in Article 7 of the General
Conditions hereof shall have occurred and be continuing, DEG
shall have the rights and remedies set forth in said Article 7
and the other Principal Documents, all of which rights and
remedies are incorporated by reference herein, and all other
rights and remedies which may be available at law or in equity.
ARTICLE 8
Miscellaneous
Section 8.1 Notices. Any notice, request or other
communication to be given or made under this Agreement shall be
in writing and shall be given or made in the manner set forth in
the General Conditions hereof.
Section 8.2 English Language. 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
satisfactory to DEG certified by an authorized representative of
the Company, which translation shall be the governing version
between the Company and DEG.
Section 8.3 Expenses. If any amount owing to DEG under
this Agreement shall be collected through any process of law or
shall be placed in the hands of attorneys for collection, the
Company shall pay (in addition to all monies then due in respect
of the DEG Loan or otherwise payable under this Agreement),
professional consultant and attorneys' and other fees and
expenses incurred in respect of such collection.
Section 8.4 Jury Trial. The Company hereby waives any
and all rights to demand a trial by jury in any action, suit or
proceeding arising out of or relating to this Agreement or any
Principal Document or the transactions contemplated hereby or
thereby, brought against DEG in any forum in which DEG is not
entitled to immunity from a trial by jury.
Section 8.5 Confidential Information.
(a) DEG may disclose to any person for the purpose of
exercising any power, remedy, right, authority, or discretion
under this Agreement or any other Principal Document in
connection with a Default or Event of Default, any documents or
records of, or information about, any Principal Document, or the
assets, business or affairs of the Company.
(b) The Company acknowledges and agrees that,
notwithstanding the terms of any other agreement between the
Company and DEG, a disclosure of information by DEG in the
circumstances contemplated by this subsection does not violate
any duty owed to the Company or agreement between DEG and the
Company.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be signed in their respective names as of the date first above
written.
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
By: ____________________________________
Authorized Representative
DEG-DEUTSCHE INVESTITIONS-und ENTWICKLUNGSGESELLSCHAFT mbH
By: ______________________________________
Authorized Representative
SCHEDULE 2.2(a)
FINANCING PLAN
Equity US$$
IFC $ 2,949,500
Sponsors' Equity $26,545,500
Total Equity $29,495,000
Loans US$$ DM
IFC A Loan $21,000,000
IFC B Loan $36,000,000
DEG Loan DM21,000,000
Total Loans $57,000,000 DM21,000,000
Total Financing $98,245,000 1/
SCHEDULE 2.2(b)
PROJECT COSTS*
Amount (US$)
EPC Plant and T-Line $46,340,000
EPC Miscellaneous Change Orders 600,000
Taxes & Duties 411,000
Land and Access Road 650,000
Preliminary Investigation 2,438,000
Engineering - Harza 5,290,000
Spare Parts and Start-up Testing 1,000,000
Development Costs 2,963,000
Construction Management & Supervision Costs 2,653,000
Legal Fees 3,026,800
Insurance Premiums 1,558,000
GLOF Survey/Warning System 600,000
Environ. Mitigation and Community 550,000
Development
Engineering/Consulting (Lenders) 545,000
O&M/Training Costs during Construction 450,000
Contingency 12,228,476
Working Capital 1,500,000
Commitment Fee 671,478
Financing Fees 2,437,000
Interest During Construction, net 7,033,246
Debt Service Reserve 5,300,000
TOTAL PROJECT COSTS $98,245,000
* Project costs shall not include any termination or similar
fees in connection with any financing or contemplated financing
for the Project from sources other than the Lenders.
SCHEDULE 3.2(a)(i)
FORM OF DEG DISBURSEMENT REQUEST
[COMPANY LETTERHEAD]
[Date]
DEG-Deutsche Investitions-und Entwicklungsgesellschaft mbH
Xxxxxxxxxxxxxxxx 00
X-00000
Xxxxx (Mungersdorf)
Federal Republic of Germany
Ladies and Gentlemen:
Investment No.
Request for Loan Disbursement No. [ ]*
1. Please refer to the Special Conditions (the "DEG Special
Conditions") between Bhote Koshi Power Company Private Limited
(the "Company") and DEG - Deutsche Investitions-und
Entwicklungsgesellschaft mbH ("DEG") and General Conditions dated
as of the Closing Date among the Company,
DEG and International Finance Corporation. Terms defined in the
DEG Investment Agreement and in the General Conditions have their
defined meanings whenever used in this request.
2. The Company irrevocably requests the disbursement on
________, 19 (or as soon as practicable thereafter) of the
amount of _______________________________ (DM__________) under
the DEG Loan. You are requested to pay such amount to the credit
of the Offshore Retention Account in accordance with the Trust
and Retention Agreement.
3. DEG has heretofore disbursed the sum of __________________
Deutsche Marks (DM__________) under the DEG Loan pursuant to the
DEG Special Conditions. Following the Disbursement of the amount
requested hereby, there will remain undisbursed _________________
Deutsche Marks (DM__________) under the DEG Loan.
4. Attached hereto are (i) a signed but undated receipt** for
the amount hereby requested to be disbursed and the Company
hereby authorizes DEG to date such receipt as of the date of
actual disbursement by DEG of the funds hereby requested to be
disbursed and (ii) a copy of the report referred to in
Section 3.5(b) of the General Conditions and the certification
referred to in Section 3.1(x) of the General Conditions.
5. For the purpose of Article 6 of the DEG Special Conditions
and Article 3 of the General Conditions, the Company hereby
certifies the following:
(a) on the date hereof, (1) all representations and
warranties contained in the General Conditions (other
than the representations made pursuant to
Section 4.1(e)(ii) of the General Conditions) and in
the other Loan Documents to which the Company is a
party are true and correct in all material respects
with the same effect as though such representations and
warranties had been made on and as of the date hereof
except where expressed to be made on a specified date,
(2) the representations and warranties referred to in
Section 4.1(e)(ii) of the General Conditions are true
and correct in all material respects in the manner and
on the basis as contemplated by the said
Section 4.1(e)(ii), in each case, both immediately
before and after giving effect to the disbursement
requested hereby, and (3) except as fully reflected in
the financial statements delivered to date pursuant to
Sections 5.1(a) and (b) of the General Conditions,
there are as of the date of such financial statements,
no liabilities or obligations with respect to the
Company of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not
due) which, either individually or in the aggregate,
could constitute a Material Adverse Change;
(b) no Event of Default or Default has occurred and is
continuing;
(c) since the date of the DEG Special Conditions
nothing has occurred which is reasonably likely to
materially and adversely affect the carrying out of the
Project or the Company's ability to fulfill any
material obligation under the DEG Investment Agreement;
(d) no Force Majeure Event has occurred and is
continuing;
(e) the proceeds of the requested disbursement are
promptly needed by the Company to pay Project Costs;
(f) since the date of the DEG Special Conditions, the
Company has not incurred any material loss or liability
(except such liabilities as may be incurred by the
Company in accordance with Section 6.5 of the General
Conditions of the DEG Investment Agreement); and
(g) the Company has the authority to request the
amount requested to be disbursed and the amount
requested to be disbursed is within the Company's
available borrowing power. The Company shall not be in
violation of (A) its Charter Documents, (B) any
covenant or agreement contained in any document to
which the Company is a party, or (C) any law, rule or
regulation, directly or indirectly, limiting or
otherwise restricting the Company's borrowing power or
authority or its ability to borrow.
The above certifications are effective as of the date of
this DEG Special Conditions and will continue to be effective as
of the date of the disbursement hereby requested. If any of these
certifications is no longer valid as of or prior to the date of
disbursement hereby requested, the Company will immediately
notify DEG and will repay the amount disbursed upon demand by DEG
if disbursement is made prior to the receipt of such notice.
Yours truly,
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
By: ___________________________________
Authorized Representative
SCHEDULE 3.2(a)(ii)
FORM OF DEG LOAN DISBURSEMENT RECEIPT
[COMPANY LETTERHEAD]
[Date]
DEG-Deutsche Investitions-und Entwicklungsgesellschaft mbH
Xxxxxxxxxxxxxxxx 00
X-00000
Xxxxx (Mungersdorf)
Federal Republic of Germany
Attention:
Ladies and Gentlemen:
Investment No.
Disbursement Receipt No. [ ]* (Loan)
We, Bhote Koshi Power Company Private Limited (the
"Company"), hereby acknowledge receipt on the date hereof, of the
sum of , disbursed to us by DEG - Deutsche
Investitions-und Entwicklungsgesellschaft mbH ("DEG") under the
DEG Loan, consisting of the sum of ______________________
Deutsche Marks (DM________________) under the DEG Loan, provided
for in the DEG Investment Agreement dated , 1997
between the Company and DEG.
Yours truly,
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
By: ______________________________
Authorized Representative**
_______________________________
1/ For purposes of this Schedule 2.2(a), an exchange rate of DM
1.7872 = $1 has been assumed.
* Each to be numbered in series.
** See Schedule 3.2(a)(ii) for form of receipt.
* Each to be numbered in series.
** As named in the Company's Certificate of Incumbency and
Authority (see Schedule 3.1(i) to the General Conditions of the
Investment Agreement).
