EXHIBIT NO. 149
EQUITY SUBSCRIPTION AGREEMENT
among
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED
and
PANDA OF NEPAL
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. Panda of Nepal 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 9
Section 5.5. Severability 9
Section 5.6. Documents 9
Section 5.7. Counterparts 9
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"), PANDA OF NEPAL, an
exempted company with limited liability organized and existing
under the laws of the Cayman Islands ("Panda of Nepal") 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
Panda of Nepal 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 Panda of Nepal 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.
Panda of Nepal 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, Panda
of Nepal's total equity commitment to the Project
is twenty two million one hundred twenty one
thousand two hundred fifty Dollars ($22,121,250).
As of the date hereof, Panda of Nepal 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
Panda of Nepal, and Panda of Nepal agrees to
purchase, five hundred seventy-four thousand nine
hundred ninety-two (574,992) shares of the share
capital of the Company, par value Rs. 100 per
share, for a total purchase price of five million
seven hundred forty-nine thousand nine hundred
twenty-five Dollars ($5,749,925) (the "Initial
Share Amount"). Panda of Nepal 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.
(iii) Panda of Nepal represents and
warrants that, by the Financial Closing Date five
hundred seventy four thousand nine hundred ninety
two (574,992) shares for a total purchase price of
five million seven hundred forty nine thousand
nine hundred twenty five Dollars ($5,749,925) of
the Initial Share Amount shall be paid to the
Company.
(iv) The Company further agrees to issue and
sell to Panda of Nepal, and Panda of Nepal further
agrees to purchase, one million six hundred thirty
seven thousand one hundred thirty three
(1,637,133) additional shares of the share capital
of the Company, par value Rs. 100 per share, for
an additional purchase price of sixteen million
three hundred seventy one thousand three hundred
twenty five Dollars ($16,371,325). 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 Panda of
Nepal 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, Panda of Nepal 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
Panda of Nepal, 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 any 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, Panda of Nepal shall pay
to the Company the amount by which the Subscription Amount
Payments theretofore made by Panda of Nepal is less than twenty
two million one hundred twenty one thousand two hundred fifty
Dollars ($22,121,250), and such payment shall be made by Panda of
Nepal on such date as the Company, either of the Lenders or the
Trustee shall specify in a written notice to Panda of Nepal (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).
(d) Panda of Nepal will cause Panda Bhote Koshi Company to
deliver on behalf of Panda of Nepal on or prior to the Financial
Closing Date an Equity Letter of Credit issued in favor of the
Trustee, and in an amount equal to sixteen million three hundred
seventy one thousand three hundred twenty five Dollars
($16,371,325) (such Dollar amount to equal the Subscription
Amount minus the Initial Share Amount). The stated amount of the
Equity Letter of Credit shall be reduced by the amount of each
Subscription Amount Payment made in accordance with
Section 2.1(a)(iv) hereof. The Equity Letter of Credit shall
remain outstanding, and in full force and effect, until the
Trustee or the Lenders have notified in writing the issuing bank
that Panda of Nepal has made Subscription Amount Payments equal
to twenty two million one hundred twenty one thousand two hundred
fifty Dollars ($22,121,250) or that Panda of Nepal's obligations
under this Article 2 have expired. In the event Panda of Nepal
fails to make any Subscription Amount Payment or other payment as
and when required hereunder, the Trustee or either of the Lenders
shall be entitled to demand payment under the Equity Letter of
Credit of an amount equal to such payment. Additionally, if the
Trustee or the Lenders have received a notice from the issuing
bank that the Equity Letter of Credit will be terminated or will
not be renewed or extended, then either of the Lenders or the
Trustee may, at any time after receiving the aforesaid notice,
draw upon the Equity Letter of Credit in an amount equal to the
full amount of the Equity Letter of Credit.
Section 2.2. Method of Payment. Panda of Nepal 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 Panda of Nepal, 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. Panda of Nepal Covenants.
(a) Panda of Nepal 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 the Cayman Islands; 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
Panda of Nepal 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. Panda of Nepal 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 Panda of Nepal 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 Panda of Nepal.
(b) (i) The obligations of Panda of Nepal 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, Panda of
Nepal 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 Panda of Nepal
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 Panda of Nepal or the Company shall have
notice or knowledge of any of the foregoing.
(ii) If the obligations of Panda of Nepal
hereunder are unenforceable by reason of the
insolvency, bankruptcy or reorganization of the
Company or any other Person, Panda of Nepal shall
nonetheless pay any amounts due hereunder directly
to the Trustee.
(c) Notwithstanding paragraphs (a) and (b) above, receipt
of an amount drawn on the Equity Letter of Credit shall
constitute satisfaction of Panda of Nepal's obligation to pay a
Subscription Amount Payment, to the extent of the amount so
received.
(d) Each of Panda of Nepal 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.
(e) Panda of Nepal 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 Panda of Nepal under this
Agreement, Panda of Nepal 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, Panda of Nepal, 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, Panda of Nepal 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) Panda of Nepal and Company Representations and
Warranties. Panda of Nepal 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, Panda of Nepal 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
Panda of Nepal 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 Panda of Nepal 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 Panda of Nepal 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 Panda of Nepal 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 Panda of Nepal
agrees to designate a new designee, appointee and agent in New
York City. Each of the Company and Panda of Nepal 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 Panda of
Nepal in Nepal or in any other jurisdiction.
(b) Each of the Company and Panda of Nepal 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 Panda of
Nepal 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) Panda of Nepal 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 Panda of Nepal:
Address: x/x Xxxxxx xxx Xxxxxx
X.X. Xxx 000
Xxxxxx Xxxxx
Xxxxx Church Street
Grand Cayman
Cayman Islands, R.W.I.
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
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 Panda of Nepal, 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 Panda of Nepal
in any case shall entitle Panda of Nepal 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 Panda of Nepal, as the case may
be, which translation shall be the governing version between the
Company and Panda of Nepal.
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:
PANDA OF NEPAL
By:
Name:
Title:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By:
Name:
Title:
