EXHIBIT 10..153.01
SCHEDULE
to the
Master Agreement
dated as of December 12, 1997
between
BHOTE KOSHI POWER COMPANY PRIVATE LIMITED (Party A)
and
INTERNATIONAL FINANCE CORPORATION (IFC or Party B)
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A
for the purpose of:
Section 5(a)(v).........................Not Applicable
Section 5(a)(vi)........................Not Applicable
Section 5(a)(vii).......................Not Applicable
Section 5(b)(iv)........................Not Applicable
and in relation to Party B for the purpose of:
Section 5(a)(v).........................Not Applicable
Section 5(a)(vi)........................Not Applicable
Section 5(a)(vii).......................Not Applicable
Section 5(b)(iv)........................Not Applicable
(b) "Specified Transaction" will have the meaning specified
in Section 14 of this Agreement.
(c) The "Cross Default" provisions of Section 5(a)(vi) will
apply to Party A and will not apply to Party B.
If such provisions apply:
"Specified Indebtedness" will have the meaning specified
in Section 14 of this Agreement. In addition, any
obligation to pay or deliver in respect of a Derivative
shall also constitute "Specified Indebtedness" for
purposes of clause (2) of Section 5(a)(vi), if the
obligation is not performed as and when due, whether on a
scheduled payment or delivery date, in connection with
early termination or liquidation or otherwise. For these
purposes, "Derivative" means each kind of transaction
listed in the definition of "Specified Transaction"
entered into between the relevant party or Specified
Entity, on the one hand, and any person, on the other.
"Threshold Amount" means, in respect of Party A, US$0.
(d) The "Credit Event Upon Merger" provisions of Section
5(b)(iv) will apply to Party A and will not apply to
Party B.
(e) The "Automatic Early Termination" provisions of Section
6(a) will not apply to Party A and will not apply to
Party B.
(f) Payments on Early Termination. For the purpose of
Section 6(e) of this Agreement:
(i) Loss will apply.
(ii) The First Method will apply.
(g) "Termination Currency" means, for a Specified
Transaction, the currency specified in the Confirmation
for that Transaction, if such currency is specified and
freely available, and otherwise United States Dollars.
(h) Additional Termination Event in respect of Party A and
with respect to any Transaction. Upon the prepayment in
whole or in part of the Underlying Obligation (as defined
in the Confirmation evidencing such Transaction), Party B
shall have the right, upon five (5) Business Days notice
to Party A, to designate an Early Termination Date in
respect of such Transaction or in respect of a portion of
such Transaction under this Agreement (and Party A shall
be the Affected Party).
Part 2. Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e)
of this Agreement, Party A will, and IFC will not, make
the following representation, and IFC shall make the
alternative representations stated in Part 5(c) of this
Schedule:
It is not required by any applicable law, as modified by
the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax
from any payment to be made by it to the other party
under this Agreement. In making this representation, it
may rely on (i) the accuracy of any representations made
by the other party pursuant to Section 3(f) of this
Agreement, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) of this Agreement and the
accuracy and effectiveness of any document provided by
the other party pursuant to Section 4(a)(i) of this
Agreement and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of this
Agreement.
(b) Payee Representations. For the purpose of Section 3(f)
of this Agreement, Party A makes the representations
specified below, if any, and IFC shall make the
alternative representations for purposes of Section 3(f)
of this Agreement as set forth in Part 5(c) of this
Schedule:
(i) The following representation will not apply to Party
A:
It is fully eligible for the benefits of the
"Business Profits" or "Industrial and Commercial Profits"
provision, as the case may be, the "Interest" provision
or the "Other Income" provision (if any) of the Specified
Treaty with respect to any payment described in such
provisions and received or to be received by it in
connection with this Agreement and no such payment is
attributable to a trade or business carried on by it
through a permanent establishment in the Specified
Jurisdiction.
(ii) The following representation will apply to Party A:
Each payment received or to be received by it in
connection with this Agreement will be effectively
connected with its conduct of a trade or business in the
Specified Jurisdiction.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii) of this
Agreement, each party agrees to deliver the following
documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Party required Form/Document/ Date by which to
to Certificate be
deliver document delivered
N/A N/A
N/A
(b) Other documents to be delivered are:
Party
required
to Covered by
deliver Section 3(d)
document Represen-
Form/Document/ Delivery Date tation
Certificate
Party A Evidence of the authority Prior to execution Yes
and authority, incumbency and date of this
Party B specimen signature of Agreement.
each person executing this
Agreement on its behalf;
Party A Evidence of the authority Prior to execution Yes
and authority, incumbency and date of relevant
Party B specimen signature of each confirmation.
each person executing a
Confirmation on its behalf;
Party A Certified copies of Prior to execution Yes
and documents evidencing its date of this
Party B authority to execute and Agreement.
deliver this Agreement
and each Confirmation,
and to perform its
obligations hereunder;
Party A Any document required or As soon as practicable Yes
permitted to be delivered following request
under the Risk Management by Party B.
Facility Agreement, if
applicable; and
Party A A Legal Opinion covering Prior to execution Yes
any of the above (as date of this
determined by Party B). Agreement.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a)
of this Agreement:
Address for notices or communication to Party A:
Address: c/o Panda Energy International, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Electronic Messaging System Details:
Address for notices or communications to Party B:
Address: 0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X., 00000, X.X.X.
Attention: Director, Treasury Operations Department
Telex No.: 248423
Answerback: World Bank
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Electronic Messaging System Details:
(b) Process Agent. For the purpose of Section 13(c) of this
Agreement:
Party A appoints as its
Process Agent: CT Corporation 0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Party B appoints its Process Agent: Not Applicable
(c) Offices. The provisions of Section 10(a) will not apply
to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of
this Agreement:
Party A is not a Multibranch Party and Party B is not a
Multibranch Party.
(e) Calculation Agent. The Calculation Agent will be Party B
or its designee.
(f) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New
York (without reference to choice of law doctrine).
(g) Netting of Payments. Subparagraph (ii) of Section 2(c)
of this Agreement will not apply.
(h) "Affiliate" will have the meaning specified in Section 14
of this Agreement unless another meaning is specified
here. As regards IFC the term "Affiliate" shall not
include the International Development Association, the
International Bank for Reconstruction and Development or
the Multilateral Investment Guarantee Agency.
Part 5. Other Provisions.
(a) Status. The "Status" provisions of Section 3(a)(i) shall
not apply to IFC. In place thereof IFC represents to
Party A that it is an international organization, duly
established and validly existing under its Articles of
Agreement among the member countries signatory thereto
(the "Articles").
(b) Binding Obligations. The "Obligations Binding"
provisions of Section 3(a)(v) shall not apply to IFC. In
place thereof IFC represents to Party A that its
obligations under this Agreement constitute its legal,
valid and binding obligations.
(c) Tax Representations of IFC. The following shall
constitute the Payer and Payee Tax Representations of IFC
for purposes of Section 3(e) and Section 3(f) of this
Agreement: "Under its Articles IFC, its assets, property,
income and its operations and transactions authorized by
the Articles are immune from all taxation and from all
customs duties levied by countries that are members of
IFC. IFC is also immune from liability for the
collection or payment of any tax or duty levied by such
member country."
(d) Withholding Tax. IFC shall have no obligation to make
payments of additional amounts pursuant to the "Deduction
or Withholding for Tax" provision of Section 2(d).
(e) Stamp Tax. IFC shall have no obligation to make any
payment under the "Payment of Stamp Tax" provisions of
Section 4(e).
(f) Specified Information. The provisions of Section
4(a)(iii) of this Agreement will not apply to either
party.
(g) Default. For the purpose of Section 5(a)(vi), two new
subsections (3) and (4) shall be added as follows:
"(3) the failure of such party or any Specified Entity to
comply with any provision, representation or covenant of
a credit or guarantee agreement (after giving effect to
any applicable grace period); or
(4) such party is in default under any provision of the
Risk Management Facility Agreement."
(h) Bankruptcy. The "Bankruptcy" event of default set forth
in Section 5(a)(vii) shall not apply to IFC. In place
thereof the following event of default shall apply to
IFC: "IFC's operations shall have been permanently
suspended pursuant to Article V, Section 5 of the
Articles."
(i) Jurisdiction. The "Jurisdiction" provisions of Section
13(b) shall not be taken to limit the right of IFC when
it is a defendant in any action brought against it in the
United States, at any time before the trial thereof, to
remove such action from a State court into a district
court of the United States for the proper district, under
Section 8 of the International Finance Corporation Act
(22 U.S.C. 282f).
(j) Waiver of Immunities. The "Waiver of Immunities"
provisions of Section 13(d) shall not apply to IFC.
(k) IFC Immunities. A new Section 13(e) shall be added to
read as follows:
"Nothing in this Agreement shall operate as or be
construed to constitute a waiver, renunciation or any
other modification of any privilege or immunity of IFC
under Article VI of its Articles or under any applicable
law. In particular, Party A acknowledges that in
accordance with IFC's Articles, actions may be brought
against IFC only in a court of competent jurisdiction in
the territories of a member in which IFC has an office,
has appointed an agent for the purpose of accepting
service or notice of process, or has issued or guaranteed
securities. Party A further acknowledges that:
(i) No actions shall be brought by members of IFC or
persons acting for or deriving claims from such members.
(ii) The property and assets of IFC, wherever located and
by whomsoever held, shall be immune from all forms of
seizure, attachment or execution before the delivery of
final judgment against IFC.
(iii) The archives of IFC shall be inviolable."
(l) Reference Market Makers. The definition of "Reference
Market-makers" shall be amended by inserting after the
word "which" in the second line the words "in the case of
Party B are otherwise satisfactory to such party and
which in the case of Party A ..."
(m) Facsimile Transmissions. Section 12(a)(iii) shall be
deleted in its entirety and replaced by the following:
"(iii) if sent by facsimile transmission, on the date
receipt is confirmed by return facsimile transmission or
by other manner set forth in this Section 12(a)."
(n) Electronic Messaging. Where a confirmation is created by
an exchange of electronic messages, such confirmation
will constitute a "Confirmation" as referred to in this
Agreement even where not so specified in the
confirmation, and will supplement, form part of, and be
subject to this Agreement, and all provisions contained
or incorporated by reference in this Agreement will
govern the Confirmation except as modified in the
Confirmation.
(o) Forward Rate Transactions. For the purpose of any
Transaction that is a forward rate agreement, unless
otherwise specified within the relevant confirmation, FRA
Discounting will be applicable and the convention for
adjustment of Payment Dates, Reset Dates and the
Termination Date will be Modified Following Business Day.
(p) Recording. Each party (i) consents to the recording of
the telephone conversations of trading and marketing
personnel of the parties in connection with this
Agreement or any potential Transaction and (ii) agrees to
obtain any necessary consent of, and give notice of such
recording to, such personnel of it.
(q) Definitions. The definitions and provisions contained in
the 1991 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc.
modified in accordance with paragraph (r) below (the
"1991 Definitions"), are incorporated into any
Confirmation which supplements and forms part of this
Agreement unless otherwise specified in the relevant
Confirmation. In the event of any conflict between this
Agreement and the provisions of the 1991 Definitions, the
provisions of this Agreement apply.
(r) Transactions. All references in the 1991
Definitions to "Swap Transactions" are deemed to
include "Transactions" as defined in this Agreement
and in any Confirmation which supplements and forms
part of this Agreement.
(s) Confirmations. Each Transaction shall be evidenced
by a Confirmation in writing signed by the parties
substantially in the form of Exhibit I to the 1991
Definitions.
(t) Interest Rate Caps, Collars and Floors Addendum.
Paragraph 4 to the May 1989 Addendum to the
Schedule to Interest Rate and Currency Exchange
Agreement, published by the International Swaps and
Derivatives Association, Inc., relating to Interest
Rate Caps, Collars and Floors and attached hereto
as Annex A is incorporated in this Agreement by
this reference and made a part of this Agreement to
the same extent as if such Addendum were set forth
in full in this Agreement.
(u) Options. Paragraph 5 to the July 1990 Addendum to
the Schedule to the Interest Rate Swap Agreement,
published by the International Swaps and
Derivatives Association, Inc., relating to options
is attached as Annex B and is incorporated in this
Agreement by this reference and made a part of this
Agreement to the same extent as if such Addendum
were set forth in full in this Agreement.
(v) Legal Opinion. As a condition of effectiveness of
this Agreement, Party B shall have received a legal
opinion from counsel for Party B, concurred in by
counsel for Party A, with respect to the
authorization, execution, delivery, legality,
validity and enforcement of this Agreement and the
Risk Management Facility Agreement and the
Specified Transactions to be executed thereunder,
and such opinion shall be in form and substance
satisfactory to Party B.
(w) Reimbursement of Expenses.
(i) Party A shall pay to Party B the fees
described in the Risk Management Facility Agreement
in accordance with the provisions thereof.
(ii) Party A shall pay to Party B, or as Party
B may direct, the fees and expenses of Party B's
counsel in Nepal incurred in connection with the
giving of any legal opinions required by Party B
under this Agreement, the Risk Management Facility
Agreement, if any, and in connection with any
Specified Transaction.
(x) Eligible Swap Participant. Section 3(a) of this
Agreement is amended to add the following new
subsection (vi):
"(vi) Eligible Swap Participant". It is an
"eligible swap participant" as such term is defined
in Section 35.1(b)(2) of the Regulations of the
Commodity Futures Trading Commission."
(y) Commodity Definitions. The 1993 Commodity
Derivatives Definitions published by ISDA (the
"Commodity Definitions") are incorporated by
reference herein. Any terms used and not otherwise
defined herein which are contained in the Commodity
Definitions shall have the meaning set forth
therein.
(z) FX Definitions. The 1992 ISDA FX and Currency
Option Definitions published by ISDA (the "FX
Definitions") are incorporated by reference herein.
Any terms used and not otherwise defined herein
which are defined in the FX Definitions shall have
the meaning set forth therein.
ANNEX A
International Swap Dealers Association, Inc.
May 1989 Addendum to Schedule to
Interest Rate and Currency Exchange Agreement
Interest Rate Caps, Collars and Floors
(1) As used in this Agreement or in a Confirmation (i)
"Rate Protection Transaction" will mean any Swap Transaction that
is identified in the related Confirmation as a Rate Protection
Transaction, Rate Cap Transaction, Rate Floor Transaction or Rate
Collar Transaction and (ii) "Specified Swap" means,
notwithstanding Section 14 of this Agreement but subject to Part
1 of this Schedule, any rate swap, rate cap, rate floor, rate
collar, currency exchange transaction, forward rate agreement or
other exchange or rate protection transaction, or any combination
of such transactions or agreements or any option with respect to
any such transaction now existing or hereafter entered into
between one party to this Agreement (or any applicable Specified
Entity) and the other party to this Agreement (or any applicable
Specified Entity).
(2) Notwithstanding anything to the contrary in this
Agreement or in any Interest Rate and Currency Exchange
Definitions published by the International Swap Dealers
Association, Inc. and incorporated in any Confirmation, the
following provisions will apply with respect to a Rate Protection
Transaction:
(a) the Floating Rate applicable to any Calculation Period will
be (i) with respect to a Floating Rate Payer for which a Cap
Rate is specified, the excess, if any, of the Floating Rate
calculated as provided in this Agreement (without reference
to this paragraph 2(a)) over the Cap Rate and (ii) with
respect to a Floating Rate Payer for which a Floor Rate is
specified, the excess, if any, of the Floor Rate over the
Floating Rate calculated as provided in this Agreement
(without reference to this paragraph 2(a)):
(b) "Cap Rate" means, in respect of any Calculation Period, the
per annum rate specified as such for that Calculation Period,
and
(c) "Floor Rate" means, in respect of any Calculation Period,
the per annum rate specified as such for that Calculation
Period.
(3) For purposes of the determination of a Market Quotation
for a Terminated Transaction in respect of which a party ("X")
had, immediately prior to the designation or occurrence of the
relevant Early Termination Date, no future payment obligation,
whether absolute or contingent, under Section 2(a)(i) of this
Agreement with respect to the Terminated transaction, (i) the
quotations obtained from Reference Market-makers shall be such as
to preserve the economic equivalent of the payment obligations of
the party ("Y") that had, immediately prior to the designation or
occurrence of the relevant Early Termination Date, future payment
obligations, whether absolute or contingent, under Section
2(a)(i) of this Agreement with respect to the Terminated
Transaction and (ii) if X is making the determination such
amounts shall be expressed as positive amounts and if Y is making
the determination such amounts shall be expressed as negative
amounts.
(4) Notwithstanding the terms of Sections 5 and 6 of this
Agreement, if at any time and so long as one of the parties to
this Agreement ("X") shall have satisfied in full all its payment
obligations under Section 2(a)(i) of this Agreement and shall at
the time have no future payment obligations, whether absolute or
contingent, under such Section, then unless the other party ("Y")
is required pursuant to appropriate proceedings to return to X or
otherwise returns to X upon demand of X any portion of any such
payment, (a) the occurrence of an event described in Section 5(a)
of this Agreement with respect to X or any Specified Entity of X
shall not constitute an Event of Default or a Potential Event of
Default with respect to X as the Defaulting Party and (b) Y shall
be entitled to designate an Early Termination Date pursuant to
Section 6 of this Agreement only as a result of the occurrence of
a Termination Event set forth in (i) either Section 5(b)(i) or
5(b)(ii) of this Agreement with respect to Y as the Affected
Party or (ii) Section 5(b)(iii) of this Agreement with respect to
Y as the Burdened Party.
ANNEX B
International Swap Dealers Association, Inc.
July 1990 Addendum to Schedule to
Interest Rate Swap Agreement
Options
(1) As used in this Agreement or in any Confirmation. "Option"
means any Rate Swap Transaction that is identified in the related
Confirmation as an Option and provides for the grant by Seller to
Buyer of (i) the right to cause an underlying Rate Swap
Transaction, the terms of which are identified in that
Confirmation (an "Underlying Rate Swap Transaction"), to become
effective, (ii) the right to cause Seller to pay Buyer pursuant
to Section 2(a) of this Agreement the Cash Settlement Amount, if
any, in respect of the Underlying Rate Swap Transaction on the
Cash Settlement Payment Date, (iii) the right to cause the
Optional Termination Date to become the Termination Date of the
related Rate Swap Transaction that is identified in that
Confirmation (a "Related Rate Swap Transaction") or (iv) any of
the right or rights specified in the related Confirmation. An
Option may provide for the grant of one or more of the foregoing
rights, all of which can be identified in a single Confirmation.
(2) The following capitalized terms, if used in relation to an
Option, have the respective meanings specified in or pursuant to
the related Confirmation (or elsewhere in this Agreement):
"Buyer", "Seller", "Option Premium", "Option Premium Payment
Date", "Cash Settlement Payment Date", "Cash Settlement Amount",
"Optional Termination Date", "Exercise Terms" and "Option
Exercise Period".
(3) The following provisions will apply with respect to an Option:
(a) Buyer will pay Seller pursuant to Section 2(a) of this
Agreement the Option Premium, if any, on the Option Premium
Payment Date or Dates.
(b) On the terms set forth in this Agreement (including the
related Confirmation), Seller grants to Buyer pursuant to the
Option, (I) if "Physical Settlement" is specified to be
applicable to the Option, the right to cause the Underlying Rate
Swap Transaction to become effective, (ii) if "Cash Settlement"
is specified to be applicable to the Option, the right to cause
Seller to pay Buyer pursuant to Section 2(a) of this Agreement
the Cash Settlement Amount, if any, in respect of the Underlying
Rate Swap Transaction on the Cash Settlement Payment Date or
(iii) if "Optional Termination" is specified to be applicable to
the Option, the right to cause the Optional Termination Date to
become the Termination Date of the Related Rate Swap Transaction.
The Underlying Rate Swap Transaction, if any, shall not become
effective unless (i) "Physical Settlement" is specified to be
applicable to the Option and (ii) the right to cause that
Underlying Rate Swap Transaction to become effective has been
exercised.
(c) Buyer may exercise the right or rights granted pursuant to
the Option only by delivering irrevocable notice (a "Notice of
Exercise") to Seller (which, notwithstanding any other provision
of this Agreement or the Code, may be delivered orally (including
by telephone)). The Notice of Exercise must become effective
during the Option Exercise Period and must include the Exercise
Terms, if any.
(d) Buyer will, if "Written Confirmation" is specified to be
applicable to the Option or upon demand from Seller (which
notwithstanding any other provision of this Agreement or the
Code, may be delivered orally (including by telephone)), (i)
execute a written confirmation confirming the substance of the
Notice of Exercise and deliver the same to Seller or (ii) issue a
telex to Seller setting forth the substance of the Notice of
Exercise. Buyer shall cause such executed written confirmation
or telex to be received by Seller within one Local Banking Day
following the date that the Notice of Exercise or Seller's
demand, as the case may be, becomes effective. If not received
within such time, Buyer will be deemed to have satisfied its
obligations under the immediately preceding sentence at the time
that such executed written confirmation or telex becomes
effective.
(e) Any notice or communication given, and permitted to be
given, orally (including by telephone) in connection with the
Option will be effective when actually received by the recipient.
(4) For purposes of the determination of a Market Quotation
for a Terminated Transaction that is identified as an Option, the
quotations obtained from Reference Market-makers shall take into
account, as of the relevant Early Termination Date, the economic
equivalent of the right or rights granted pursuant to that Option
which are or may become exercisable.
(5) Notwithstanding the terms of Sections 5 and 6 of this
Agreement and Section 11.6 of the Code, if at any time and so
long as the parties to this Agreement ("X") shall have satisfied
in full all its payment obligations under Section 2(a) of this
Agreement and shall at the time have no future payment
obligations, whether absolute or contingent, under such Section,
then unless the other party ("Y") is required pursuant to
appropriate proceedings to return to X or otherwise returns to X
upon demand of X any portion of any such payment, (a) the
occurrence of an event described in Section 5(a) of this
Agreement with respect to X or any Specified Entity of X shall
not constitute an Event of Default or Potential Event of Default
with respect to X as the Defaulting Party and (b) Y shall be
entitled to designate an Early Termination Date pursuant in (I)
either Section 5(b)(i) or 5(b)(ii) of this Agreement with respect
to Y as the Affected Party or (ii) Section 5(b)(iii) of this
Agreement with respect to Y as the Burdened Party. For purposes
of this Agreement. "Potential Event of Default" means an event
that with the giving of notice or lapse of time (or both) would
become an Event of Default.