|BANK 1as Companyand Bank 1
as Security Trustee
|DEED OF ASSIGNMENT
1. Interpretation ……………………………………………………………………………3
2. Assignment ………………………………………………………………………………5
3. Perfection Of Assignment …………………………………………………………….7
4. Enforcement …………………………………………………………………………….9
5. Waivers ………………………………………………………………………………….9
6. Receiver …………………………………………………………………………………10
7. Powers Of Receiver ……………………………………………………………………11
8. Application Of Proceeds ………………………………………………………………12
9. Further Assurances …………………………………………………………………….12
10. Delegation ……………………………………………………………………………….12
11. Power Of Attorney……………………………………………………………………..13
12. Continuing Security ……………………………………………………………………13
15. Governing Law ………………………………………………………………….……..16
Schedule 1 ………………………………………………………………….……………………….17
Schedule 2 ………………………………………………………………….……………………….18
Part I – Form Of Notice Of Assignment ………………………………………………….18
Part II – Form Of Acknowledgement …………………………………………………….20
Part III – Form Of Notice Of Assignment To Insurers / Brokers …………………22
Part IV – Form Of Acknowledgement From Insurers [On Copy] …………………30
Part V – Form Of Acknowledgement From Brokers [On Copy] ……………….…32
THIS DEED OF ASSIGNMENT is entered into as a deed and made at Dhaka on this the 21st day of June, 2001
COMPANY 1, a company incorporated under the laws of the People’s Republic of Bangladesh having its registered office at _______________ Bangladesh (the “Company“); and
BANK 1, a bank having its office at Chamber Building, ____________________ Bangladesh as onshore security trustee for itself and each of the other Secured Parties (the “Security Trustee“).
Certain banks and financial institutions and other persons have agreed to extend certain credit facilities and/or other consideration to the Company on and subject to the terms of the Intercreditor and Common Terms Agreement and the other Finance Documents on condition inter alia that the Company enters into this Deed.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
In this Deed:
“Additional Contracts” means any agreements to which the Company becomes a party after the date of this Deed.
“Assigned Contracts” shall mean the contracts as described in Schedule 1 hereto and any Additional Contracts assigned pursuant to Clause 2.1.
“Code of Civil Procedure” shall mean the Code of Civil Procedure, 1908 (Act V of 1908).
“Counterparty” shall mean any person other than the Company who is a party to any Assigned Contract.
“Intercreditor Agent” means Australia and New Zealand Banking Group Limited acting through its London Branch.
“Intercreditor and Common Terms Agreement” shall mean the intercreditor and common terms agreement dated 4 April 2001 between, amongst others, the BANK 1nd the Security Trustee.
“Notice of Assignment” shall mean a notice substantially in the form set out in Schedule 2.
“Onshore Insurer” means any insurer which has issued or is to issue any Onshore Key Insurance Policy.
“Onshore Key Insurance Policy” means any Key Insurance taken out by the Company with a Bangladeshi insurer.
“Onshore Permitted Investment Document” means any certificate of deposit, receipt or document, whether of title or of an evidential nature, relating to any Onshore Permitted Investment made from a Secured Onshore Account.
“Receiver” shall mean a receiver and manager or (if the Security Trustee so specifies in the relevant appointment) a receiver of the whole or any part of the Security Assets, in either case appointed under this Deed.
“Secured Obligations” has the meaning given in the Trust Deed.
“Secured Onshore Account” means each of the onshore accounts described in the Accounts Agreement and which are held with the Onshore Account Bank
“Secured Onshore Account” means each of the Secured Project Accounts described in the Accounts Agreement which are held with the Onshore Account Bank.
“Secured Parties” has the meaning given in the Trust Deed.
“Security Assets” shall mean all assets, rights and properties of the Company which are the subject of any security created by or pursuant to this Deed.
“Security Period” shall mean the period beginning on the date of this Deed and ending on the date on which the Intercreditor Agent instructs the Security Trustee that it is satisfied that all the Secured Obligations which have arisen have been unconditionally and irrevocably paid and discharged in full or the security hereby created has been unconditionally and irrevocably released and discharged.
1.2 Unless otherwise defined herein, words and expressions used in this Deed shall have the meanings given in the Intercreditor and Common Terms Agreement.
The expressions “Company”, “Secured Parties”, “Intercreditor Agent” or “Security Trustee” where the context admits shall include their respective successors and assigns whether immediate or derivative.
1.4 Security Trustee
In exercising its rights, powers and discretion under this Deed, the Security Trustee shall act in accordance with the provisions of the Trust Deed.
For the full payment and performance of all the Secured Obligations, the Company, with full title guarantee and as security, hereby assigns, and agrees to assign, absolutely to the Security Trustee by way of first priority assignment and as continuing security for the payment and discharge of the Secured Obligations all of the Company’s rights, title and interest, present and future, in, to and under:
(a) the Assigned Contracts;
(b) the Additional Contracts;
(c) all sums payable or which become payable under each Assigned Contract or in relation thereto from time to time and the debts represented thereby and including (without limitation) the full benefit of all rights and remedies, all rights to make claims, proceeds of any claims, awards or judgements under or in respect of any of the Assigned Contracts; and
(d) the Onshore Permitted Investments
Pledge of Onshore Permitted Investment Documents
In consideration of the various credit facilities and/or other consideration granted by the Secured Parties, the Company hereby pledges and agrees to pledge to the Security Trustee on trust for the benefit of the Secured Parties, all of the Onshore Permitted Investment Documents issued or to be issued to the BANK 1nd which are capable of being pledged.
The Company shall ensure that all Onshore Permitted Investment Documents owned by the Company from time to time are, promptly upon the issue thereof, delivered to the Security Trustee, which shall hold the same in its capacity as trustee for and on behalf of the Secured Parties.
Assignment of Onshore Insurances
(a) The Company, with full title guarantee, hereby assigns and agrees to assign by way of first priority assignment to the Security Trustee as continuing security for the payment and discharge of the Secured Obligations all of its present and future right, title and interest in and to the Onshore Key Insurance Policies and all proceeds of compensation and other sums awarded to the Company in the event of appropriation or compulsory acquisition of any assets of the Company, other than proceeds effectively comprised in any other fixed security created under the Security Documents.
(b) All proceeds receivable by the BANK 1fter an Event of Default under or pursuant to any Onshore Key Insurance Policy and any proceeds or other sums referred to in Clause 2.3(a) above shall be applied in accordance with Clause 14C (Application of Proceeds) of the Intercreditor and Common Terms Agreement.
2.4 Acceptance of Assignment
The Security Trustee hereby accepts the assignment of all rights, title and interest set out in this Clause 2.
Value of Security
The maximum value of the security created under this Assignment is US$ 178,298,351 in equivalent Bangladesh Taka.
2.6 Performance of the Company’s Obligations
Notwithstanding any other provision of this Deed:
the Company shall at all times remain liable to perform and observe all of its duties and obligations expressed to be assumed by it under or in respect of the Assigned Contracts (including, without limitation, the payment of all sums from time to time payable in respect thereof) to the same extent as if this Deed had not been executed;
2.6.2 the exercise by the Security Trustee, any nominee, agent or delegate thereof, any Receiver or any Secured Party of any of its rights, powers, discretion and remedies hereunder shall not release the Company from any of its duties or obligations to any other party under or in respect of the Assigned Contracts or any part thereof; and
2.6.3 each of the Security Trustee, any nominee, agent or delegate thereof, any Receiver and any Secured Parties (or any of them) shall not by virtue of the security created by or pursuant to this Deed be or become obliged or liable under or in respect of the Assigned Contracts or any part thereof:
(a) to perform or observe any of the obligations or duties of the Company thereunder;
(b) to make any payment or any enquiry in connection therewith;
(c) to present or file any claim under or in respect of the Assigned Contracts or take any other action to collect or enforce any claim for any sum payable by or to enforce the performance of any obligation to be performed by any counterparty thereunder by reason of this Deed; or
(d) (whether before or after enforcement of the security hereby constituted) to make any enquiry as to the nature or sufficiency of any payment received by it hereunder or to make any claim or to take any action to collect any moneys or proceeds due under the Assigned Contracts or to enforce the Assigned Contracts.
3. PERFECTION OF ASSIGNMENT
3.1 Notice of Assignment
(a) The Company shall promptly upon the execution of this Deed serve a Notice of Assignment in the form of Part I of Schedule 2 on each Counterparty to each Assigned Contract other than the Onshore Key Insurance Policies and shall use reasonable endeavours to procure from each such Counterparty, not later than 15 Business Days from the date of this Deed, a consent to and acknowledgement of receipt of the Notice of Assignment in or substantially in the form of the acknowledgement set out in of Part II of Schedule 2 and deliver a copy of such acknowledgement bearing original signatures of the parties signing the same, to the Security Trustee.
(b) The Company shall (b) The Company shall, promptly upon the execution of this Deed or, as the case may be, if later promptly upon the issue of any Onshore Key Insurance Policy, give notice of the assignment of each Onshore Key Insurance Policy, as appropriate, to the Onshore Insurers and brokers, in the form set out in Part III of Schedule 2 and procure that the Onshore Insurers or, as the case may be, the brokers acknowledge receipt thereof to the Security Trustee in or substantially in the form of the acknowledgement set out in Part IV of Schedule 2 (in the case of the Onshore Insurers) or, as the case may be, Part V of Schedule 2 (in the case of brokers), and deliver a copy of such acknowledgement bearing original signatures of the parties signing the same, to the Security Trustee.
Additional Assigned Contracts
Immediately upon the execution of any Additional Contract, the Company undertakes to deliver to the Security Trustee a certified copy of each Additional Contract and execute an assignment in respect of such Additional Contract on the terms and conditions substantially in the form of this Deed and promptly upon the execution of such assignment serve a Notice of Assignment to the relevant Counterparty and to use reasonable endeavours to procure not later than 15 Business Days from the date of the execution of the assignment, from each such Counterparty a consent to and acknowledgement of receipt of such notice.
Compliance with notices
The Company shall comply with the terms set out in each of the notices of assignment referred to in this Clause 3 and shall not take or omit to take any action, the taking or omission of which might otherwise result in the material alteration or impairment of its rights in relation to the Assigned Contracts.
The Company shall not, except as contemplated in this Deed or otherwise permitted under the terms of the Intercreditor and Common Terms Agreement, at any time during the Security Period assign, transfer, dispose of or forfeit nor create or suffer to exist any mortgage, charge, pledge, lien hypothecation or other encumbrance on all or any part of its rights under or in relation to the Assigned Contracts or any of them.
The Company shall hold the originals of all policies, contracts, binders, insurance slips and notes relating to the Onshore Key Insurance Policies and deliver signed duplicates thereof to the Security Trustee.
3.6 Delivery of Onshore Permitted Investments and Onshore Permitted Investment Documents
The Company shall, upon the execution of this Deed, and upon the acquisition by the Company of any interest in any Onshore Permitted Investment promptly deliver to the Security Trustee (or procure delivery of), all of the Onshore Permitted Investments or the Onshore Permitted Investment Documents held or acquired by, or on behalf of, the Company together with, in form and substance satisfactory to the Security Trustee:
(a) any document or thing which the Security Trustee may request with a view to perfecting or improving its security over the Onshore Permitted Investments or to registering any Onshore Permitted Investment in its name or the name of any nominee(s);
(b) a duly executed declaration of trust in respect of any Onshore Permitted Investment which is not in the sole name of the Company;
(c) any instrument(s) of transfer or assignment of any Onshore Permitted Investments specified by the Security Trustee (with the name of the transferee or assignee, the consideration and the date left blank, but otherwise duly completed and executed); and
(d) in the case of any Onshore Permitted Investments held by or on behalf of a nominee of any settlement system of any exchange, duly executed stock notes or other documents in the name of the Security Trustee (or its nominee(s) or agent(s)) representing or evidencing any benefit or entitlement to the Onshore Permitted Investments held in such settlement system and the Security Trustee may from time to time have any of the Onshore Permitted Investments registered in its name or in the name of one or more nominees on its behalf.
4.1 The security constituted by this Deed shall become immediately enforceable upon the occurrence of an Event of Default. At any time following the occurrence of an Event of Default, the Security Trustee shall, on the instructions of the Intercreditor Agent, enforce all or any part of the security constituted by this Deed; in particular (but without limitation) the Security Trustee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind to the Company or any other person, may:
(a) exercise any rights acquired by it in respect of the relevant Assigned Contract pursuant to this Deed in all respects as though originally named as the Company in such Assigned Contracts in place of the Company;
(b) sell or assign, transfer or otherwise dispose of in such manner and for such consideration as it may think fit to the extent permitted by applicable law all or any part of the rights and interests in and to any property assigned to it pursuant to this Deed; and/or
(c) otherwise put into force and effect all rights, powers and remedies available to it at law or otherwise as assignee of all or part of the Company’s rights and interest under each such Assigned Contract.
5.1 The Company hereby waives to the maximum extent permitted by law, notice of any kind in connection with this Deed or any Security Asset.
5.2 Except as otherwise provided in this Deed, the Company hereby waives, to the maximum extent permitted by applicable law, judicial hearing in connection with the Security Trustee taking possession or the Security Trustee’s disposition of any of the Security Assets, including any hearing for any pre-judgment remedy or remedies and any such right which the Company would otherwise have under the laws of Bangladesh and the Company hereby further waives, to the maximum extent permitted by applicable law:
(i) all damages occasioned by such taking of possession;
(ii) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Security Trustee’s rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay, extension or moratorium now or hereafter in force under any applicable law in order to prevent or delay the enforcement of this Deed or the absolute sale of the Security Assets or any portion thereof, and the Company, for itself and all who may claim under it, insofar as it or they now or hereafter lawfully may, hereby waives the benefit of all such laws.
5.3 Any sale of, or the grant of options to purchase, or any other realisation upon, any Security Assets shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the Company therein and thereto.
6.1 Appointment of Receiver
(a) At any time after the security constituted by this Deed becomes enforceable, or if the Company so requests the Security Trustee in writing at any time, the Security Trustee may without further notice appoint, by deed or in writing under its hand, any one or more qualified persons from an accounting firm of international standing (or its equivalent) (or such other firm as the Company (acting reasonably and without undue delay) may agree) to be a Receiver of all or any part of the Security Assets.
(b) The powers of appointment of a Receiver contemplated in this Deed shall be in addition to all statutory and other powers of appointment of a receiver under the Code of Civil Procedure (as extended by this Deed) or otherwise and such powers shall remain exercisable from time to time by the Security Trustee in respect of any part of the Security Assets.
6.2 Agent of the Company
Each Receiver is deemed to be the Agent of the Company for all purposes. The BANK 1lone shall be responsible for the Receiver’s contracts, engagements, acts, omissions, defaults and losses and for liabilities incurred by the Receiver (other than by reason of the Receiver’s gross negligence, wilful default wilful misconduct or fraud). The Security Trustee shall not incur any liability either to the Company or to any other person by reason of the Security Trustee making its appointment of a Receiver or for any other reason.
The Security Trustee may by writing under its hand remove any Receiver appointed by it and may, whenever it deems it expedient, appoint a new Receiver in the place of any Receiver whose appointment may for any reason have terminated.
The Security Trustee may fix the remuneration of any Receiver appointed by it but such remuneration shall be payable by the BANK 1lone and shall constitute a Secured Obligation under this Deed.
6.5 Relationship with Company
(a) To the fullest extent permitted by law, any right, power or discretion conferred by this Deed upon a Receiver may after this Deed becomes enforceable be exercised by the Security Trustee in relation to any Security Asset without first appointing a Receiver or notwithstanding the appointment of a Receiver.
(b) The Security Trustee shall instruct and direct each Receiver.
7. POWERS OF RECEIVER
If there is more than one Receiver holding office at the same time, each Receiver may exercise all of the powers conferred on a Receiver under this Deed individually and to the exclusion of any other Receivers.
A Receiver may take immediate possession of, get in and collect any Security Asset.
7.3 Protection of assets
A Receiver may make any payments due under any Security Asset for protection of assets.
A Receiver may give valid receipts for all moneys and execute all assurances and things which may be proper or desirable for realising any Security
APPLICATION OF PROCEEDS
Any money received by the Security Trustee or any Receiver after the security constituted by this Deed has become enforceable shall be applied (but without prejudice to the right of the Security Trustee to recover any shortfall from the Company) in or towards payment of the Secured Obligations or such part of them as is then due and payable in the manner provided for in Clause 3 (Application of Proceeds) of the Trust Deed and Clause 14C (Application of Proceeds) of the Intercreditor and Common Terms Agreement.
The Company shall, at its own expense, take whatever action as may be directed by the Security Trustee:
(a) for perfecting or protecting the security intended to be created by this Deed over any Security Asset; and
(b) after the occurrence of an Event of Default, for facilitating the realisation of any Security Asset or the exercise of any right, power or discretion exercisable by the Security Trustee or a Receiver in respect of any Security Asset, including the execution of any other document for the assignment of any property in favour of the Security Trustee.
10.1 The Security Trustee may delegate the exercise of any of its rights and powers under this Deed (to the extent necessary for the exercise of any right, power or discretion exercisable by it under this Deed) by power of attorney or in any other manner to:
(a) any of its Affiliates; or
(b) after the security constituted by this Deed has become enforceable, to any qualified person, if not an Affiliate, that is an accounting firm of international standing, or a person employed by, or a partner in such firm,
10.2 Any such delegation may be made upon the terms (including power to sub-delegate) and subject to any regulations which the Security Trustee may think fit; provided that any delegate of a right, power or discretion under this Clause 10 on whom a further right of sub-delegation is conferred, shall be subject to the same restrictions applicable to the Security Trustee specified in Clause 10.1 (b) above in exercising any such right of sub-delegation.
10.3 The Security Trustee will not be in any way liable or responsible to the Company for any loss or liability arising from any act, default, omission or misconduct on the part of any third party delegate or sub-delegate appointed in accordance with the terms of this Clause 10.
11. POWER OF ATTORNEY
The Company hereby undertakes to execute an irrevocable power of attorney in favour of the Security Trustee, each Receiver and any delegate properly appointed pursuant to Clause 10 (Delegation) appointing such persons as its true and lawful attorney on its behalf and in its name to:
(a) execute all documents and do all things which the attorney may consider to be necessary or desirable and which the Company is obliged to do under this Deed and generally in its name and on its behalf to exercise all or any of the powers, authorities and discretions conferred by or pursuant to this Deed or by statute on the Security Trustee, the Receiver or the delegate (as the case may be); and
(b) after the occurrence of an Event of Default, exercise all or any of the rights, powers, authorities and discretion of the Company in respect of the Security Assets including, the right to sell, dispose of, or transfer all or any of the Security Assets and to receive and give valid receipt for any money payable in respect of or arising from the enforcement of the Security Assets.
The Company hereby declares and undertakes that the power of attorney to be granted by it pursuant to Clause 11.1 (Appointment), shall not be revoked by the Company for so long as any Secured Obligations remain outstanding.
The Company hereby agrees to ratify and confirm all things done and all documents executed by any attorney in the exercise or purported exercise of all or any of his powers.
12.1 Continuing security
The security constituted by this Deed is continuing and shall extend to the ultimate balance of the Secured Obligations regardless of any intermediate payment or intermediate discharge in whole or in part of the Secured Obligations.
12.2 Additional security
The security constituted by this Deed is in addition to and is not in any way prejudiced by any other security now or subsequently held by the Security Trustee or any Secured Party for any Secured Obligations.
13.1 Assignment by the Trustee
The Security Trustee may assign and transfer all or any of its rights and obligations under this Deed. The Security Trustee shall be entitled to disclose such information concerning the BANK 1nd this Deed of Assignment as the Security Trustee considers appropriate to any actual or proposed direct or indirect successor or to any person to whom information may be required to be disclosed by any applicable law.
13.2 Assignment by the Company
The Company may not assign or transfer all or any of its rights, benefits or obligations under this Deed of Assignment.
14.1 No liability
14.1.1 The Security Trustee shall not be liable for any loss which may occur as a result of the exercise in good faith or purported exercise in good faith of any of, or any delay in the exercise of, its rights contained in this Deed. No action taken or omitted to be taken by the Security Trustee shall give rise to any defence, counterclaim or right of set off in favour of the BANK 1gainst the Secured Parties, or affect or impair the Company’s liability for the Secured Obligations.
14.1.2 The Security Trustee is a party to this Deed in its capacity as Trustee for and on behalf of itself and the other Secured Parties, on the terms set out in the Intercreditor and Common Terms Agreement and the other Finance Documents.
A certificate provided by the Intercreditor Agent to the Security Trustee setting out the amount of the Secured Obligations due from the Company shall be prima facie evidence of such amount against the Company in the absence of manifest or proven error.
No liability as chargee in possession
Neither the Security Trustee nor any Receiver will be liable, by reason of entering into possession of a Security Asset, to account as chargee in possession or for any loss on realisation or for any neglect, default or omission in connection with the Security Assets for which a chargee in possession might be liable.
14.4 Successors or Assigns
This Deed shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the Parties.
The headings of the Clauses of this Deed are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Deed.
All indemnities, agreements, representations and warranties made herein shall survive the execution and delivery of this Deed and the making and repayment of the obligations.
Any provision of this Deed 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 Deed or affect such provision in any other jurisdiction.
14.8 English Language
All documents to be furnished or communications to be given or made under this Deed shall be in the English language or, if in another language, shall, if the Security Trustee so requests, be accompanied by a translation into English satisfactory to the Security Trustee certified by a representative of the Company, which translation shall be the governing version among the Parties hereto.
Neither this Deed nor any of the terms hereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing and signed by all of the parties hereto.
14.10 Change in Constitution of the Company.
No change whatsoever in the constitution of the Company during the continuance of this Deed shall impair or discharge the liability of the Company hereunder.
This Deed may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Deed.
This Deed is governed and construed and enforced in accordance with the laws of Bangladesh.
This Deed is entered into as a deed on the date stated at the beginning of this Deed.
IN WITNESS WHEREOF, the parties hereto have caused this Deed of Assignment to be executed as a deed by their duly authorised officers on the date first set forth above.
1. The Onshore Key Insurance Policies
2. The Onshore Permitted Investment Documents
part I – form of notice of assignment
1. We refer to [Assigned Contract] dated [ ], [and the amendment thereof dated [ ]] (the “Assigned Contract“) executed between BANK 1 (the “Company“) and yourselves.
2. We hereby give you notice that pursuant to a Deed of Assignment dated [ ] 2001 (the “Assignment“) between the BANK 1 and Bank 1 (the “Security Trustee“), the Company has assigned to the Security Trustee, all of the Company’s rights, title and interest, present and future, in, to and under the Assigned Contract all sums payable or which become payable under the Assigned Contract or in relation thereto from time to time and the debts represented thereby and including (without limitation) the full benefit of all rights and remedies and all rights to make claims, proceeds of any claims, awards or judgments under or in respect of the Assigned Contract.
3. We confirm that, subject to the terms of paragraph 4 below, notwithstanding the terms of such assignment, you shall continue to treat the BANK 1s entitled to exercise and enforce, to the exclusion of the Security Trustee (except as to rights to notice and to remedy circumstances as described in the Acknowledgement attached hereto), all of its rights, discretion and remedies under or in respect of the Assigned Contract unless and until you receive notice in writing from the Security Trustee that the security constituted by the Assignment has become enforceable.
4. The instructions and authorisations which are contained in this notice shall remain in full force and effect until the BANK 1nd the Security Trustee jointly (or, after you receive notice in writing from the Security Trustee that the security constituted by the Assignment has become enforceable, the Security Trustee alone) give you notice in writing revoking them.
5. Please acknowledge receipt of this Notice of Assignment and your agreement to the Assignment by signing and returning the attached Acknowledgement of the Notice of Assignment bearing an original signature to the _______________ Bangladesh with a copy to the Company.
6. This Notice shall be governed by and construed in accordance with the laws of the People’s Republic of Bangladesh.
For and on behalf of
part II – form of acknowledgement
To: BANK1, Address_________________
Attention: Mr. A.
Copy: Company 1
Attention: Managing Director
We hereby acknowledge receipt of a notice of assignment dated [ ], 2001 (“Notice of Assignment“) attaching this form of Acknowledgement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Assignment and the assignment of the Assigned Contract;
(ii) we will give the Security Trustee notice of any default under the Assigned Contract by the BANK 1s soon as we become aware of the same;
(iii) we have not received any notice of the interest of any third party in the Assigned Contract nor have we received any other notice of assignment nor consented to any other assignment of any rights or the transfer of obligations under the Assigned Contract;
(iv) unless the Security Trustee has specifically assumed the obligations of the Company under the Assigned Contract, the Security Trustee is not liable to perform any of the obligations assumed by the Company under the Assigned Contract nor is it liable for the consequences of such non-performance;
(v) where a right to suspend or terminate our performance has arisen under the Assigned Contract, we will not exercise either such right without first giving notice to the Security Trustee and allowing the Security Trustee, on behalf of the Secured Parties at least 60 Business Days to remedy the situation, and we agree that if the Security Trustee remedies such situation within such period, we will continue to perform our obligations under the Assigned Contract;
(vi) we shall not, without the Security Trustee’s written consent, agree to or concur in any action of the Company which would contravene any terms of the Assigned Contract or the Assignment except pursuant to amendments to or variations from the Assigned Contract as permitted by and made in accordance with the Finance Documents (as defined in the intercreditor and common terms agreement dated 4 April, 2001) between, among others, the BANK 1nd the Security Trustee;
(vii) we agree to abide by all the terms and conditions of the Notice of Assignment and to act accordingly upon our receipt of a written notice that the security constituted under the Assignment has become enforceable from the Security Trustee or any replacement Security Trustee.
This acknowledgement is governed by and construed in accordance with the laws of Bangladesh.
For and on behalf of
part III – form of notice of assignment to insurers / brokers
RE: HARIPUR POWER PROJECT
RE: DEED OF ASSIGNMENT DATED [ ] 2001
RE: INSURANCE POLICIES NOS: [ ] (THE “POLICIES”)
1. We hereby inform you that, pursuant to
1.1 a facility agreement (the “IDA Guaranteed Facility Agreement“) dated 4 April 2001, made between ourselves as the borrower and, inter alia, the financial institutions named therein as lenders (the “IDA Facility Lenders“), the IDA Facility Lenders have agreed to make available to us certain credit facilities to fund, inter alia, the development, construction, operation and maintenance of a 360MW gas fired power station at Haripur in Bangladesh (the “Project“);
1.2 a facility agreement (the “Senior Sponsor Facility Agreement“) dated 4 April 2001, AES Oasis Finco (Cayman) Ltd as Sponsor has agreed to make available to ourselves certain credit facilities to fund, inter alia, the Project;
1.3 [a facility agreement (the “Other Senior Facility Agreement“) dated [ ], between ourselves as borrower and the lenders named therein (the “Other Senior Lenders“), the Other Senior Lenders have agreed to make available to us certain credit facilities to fund, inter alia, the Project]; and
1.4 a deed of assignment (the “Deed of Assignment“) dated [ ] 2001 made between ourselves as the assignor and Bank 1 (the “Security Trustee” which term as used herein shall include its successors, transferees and assigns) as trustee for and on behalf of the IDA Facility Lenders, the Sponsor (in its capacity as lender under the Senior Sponsor Facility Agreement) and the Other Senior Lenders (together the “Lenders“) and other parties referred to therein as the Secured Parties (the “Secured Parties“),
we have, in consideration of the Lenders agreeing to make available the said credit facilities and in order to secure the amounts due and payable to the Secured Parties under and in relation to the said credit facilities, assigned in favour of the Security Trustee as trustee for the Secured Parties all of our present and future rights, title, interest and benefits in and to the proceeds of the Policies (which term as used herein shall include any extension or renewal thereof) (the “Assignment“).
2. Terms defined in the Deed of Assignment shall, unless otherwise defined, bear the same meaning herein.
3. Please note that, pursuant to the Deed of Assignment, we may not otherwise assign, transfer, dispose of or forfeit, nor may we create or suffer to exist any mortgage, charge, pledge, lien or other encumbrances on or over, the Policies or any part thereof.
4. We attach a form of Endorsement and a form of “Notice of Cancellation clause”. Please arrange for these clauses to be endorsed on the Policies.
5. Please note that these instructions may not be varied except with the written consent of the Security Trustee (at the direction of the Intercreditor Agent).
6. Notwithstanding the assignment referred to above, we shall remain liable to perform all of our obligations under the Policies.
7. Please acknowledge receipt of this notice and, in consideration of the Secured Parties making certain loan facilities available to us and/or providing other consideration, your agreement to the terms contained in the acknowledgement by signing and returning it to the Security Trustee.
This notice shall be governed by the laws of Bangladesh.
For and on behalf of
1. In this endorsement it is agreed that:
“Company” means COMPANY+ 1.
“Construction Phase Insurances” means:
(c) marine cargo/transit insurance;
(d) construction all-risks (“C.A.R.”) insurance; and
(e) delay in start-up insurance (following marine cargo and C.A.R.).
“Finance Parties” are the banks, lenders and other institutions who are co-insureds hereunder and are involved in providing funding, financing, financial accommodation and hedging facilities to the Company in relation to the Project. The phrase includes any agent and/or trustee, assignee, transferee, successor or novated, replacement or additional creditor of or in relation to any of the foregoing.
“Insureds” means, severally, the Insureds named in the Insurance Policy.
“Key Operating Phase Insurances” means:
(f) all risks (including machinery breakdown) insurance – fixed assets; and
(g) business interruption insurance following all risks.
“Project” means the development, construction, ownership, operation and maintenance by the Company of the 360 MW gas-fired Haripur Power Station in The People’s Republic of Bangladesh (the “Power Station“) and the generation and sale of electricity under the PPA (the “Project“).
“Public Liability Insurance” means insurance in respect of all sums, which any Insured becomes liable to pay in respect of legal liability to third parties.
“Security Trustee” means Bank 1 acting in its capacity as trustee for the Finance Parties and includes its successors from time to time in that capacity.
2. The Insurers acknowledge that they have been notified that the Company has assigned by way of first ranking security to the Finance Parties all its rights title and interest in this insurance and in the subject matter of this insurance, and confirm that they have not been notified of any other assignment of or security interest in the Company’s interest in this insurance.
3. The Insurers acknowledge that the Finance Parties and (in respect of third party liabilities) their respective officers, directors, employees and assigns are each additional co-insureds under this policy. The Insurers waive all rights of contribution against any other insurance effected by the Finance Parties or their directors, officers or employees.
4. The Insurers waive any claim for average or contribution in respect of any other insurance of the insured risks.
5. It is noted and agreed that the Insureds hereunder comprise more than one party each operating as a separate and distinct entity and that cover hereunder shall apply in the same manner and to the same extent as if individual insurances had been issued to each such party, provided always that nothing herein shall increase the limit of liability under the Policy (unless the Policy specifically permits otherwise).
6. The Insurers hereby agree to waive all rights of subrogation which they may have or acquire against any of the parties comprising the Insureds, their affiliates, their consultants, officers, directors and employees, and other parties to the extent required by contract.
7. The Insurers acknowledge, for the benefit of the Insureds, that (i) they have received adequate information in order to evaluate the risk of insuring the Company in respect of the risks hereby insured on the assumption that such information is not materially misleading, and (ii) there is no information which has been relied on or is required by Insurers in respect of their decision to co-insure the Finance Parties or their directors, officers, employees or agents.
8. If an Insured shall provide or suppress any information or make any claim knowing the same to be false or fraudulent as regards amount or otherwise, the benefit to him of insurance under this policy shall become void and all his claims hereunder shall be forfeited.
The rights and indemnity of any Insured who is not guilty of any fraud, misrepresentation, non-disclosure or breach of condition shall not be prejudiced or affected by any fraud, misrepresentation, non-disclosure, breach of warranty or breach of condition by any other parties comprising the Insured.
In any situation where it may be alleged that there has been a failure by any Insured to advise material alterations or that there has been non-disclosure or misrepresentation of information originally supplied, the Insurer shall not exercise any rights to avoid the Policy if such failure, non-disclosure or misrepresentation was innocent and free of any fraudulent conduct or intent to deceive, and provided the same shall be advised to the Insurer as soon as it shall become known and any reasonable retrospective amendment of premium and/or terms accepted by the Insured.
For the purposes of the indemnity granted by this policy claims made by any of the parties defined as the Insureds against any other party so described shall be treated as though the party claiming was not named as the Insureds in this policy, provided always that nothing herein shall increase the limit of liability under this policy.
The Insureds irrevocably authorise and instruct the Insurer to pay, and the Insurer agrees to pay, all claims, returned premiums, ex gratia payments and any other moneys payable to any of them, other than the Finance Parties, under or in relation to this contract (“Insurance Proceeds“) as follows:
(a) if the sum recoverable is in respect of third party claims to be paid directly to a third party under the Public Liability Insurance, such sums shall be paid directly to that third party;
(b) if the sum recoverable is in respect of amounts to be paid directly to Hyundai Engineering and Construction Co. Ltd and/or Hyundai Heavy Industries Co. Limited or the relevant sub-contractor as named insured under any Key Construction Phase Insurance and amounts (excluding amounts payable in respect of delayed start-up insurance) to US$10,000,000.00 (US Dollar Ten Million) only or less per claim, directly to that named insured;
(c) to the extent that sub-paragraphs (a) to (d) above do not apply or payments have not been made to the third party or named insured (as the case may be) as contemplated therein, to the following bank account of the Company:
Bank name: Bank 1
Account No.: [ ]
Reference: [ ].
PROVIDED THAT, if the Security Trustee (at the direction of the Intercreditor Agent) has notified the Insurer that the security constituted by the assignment (described in paragraph 2 hereof) has become enforceable, all such Insurance Proceeds (other than those referred to in paragraph (a) above, which shall be paid in accordance with that paragraph) shall be paid to such other account as the Security Trustee (at the direction of the Intercreditor Agent) may specify.
No other instruction, whether by the Company or by any person other than the Security Trustee (at the direction of the Intercreditor Agent), to make any payment to any other person or account shall be honoured by the Insurer unless given or countersigned by the Security Trustee, or such other person as the Security Trustee may notify to the Insurer in writing. All such payments shall be made by the Insurer without any deduction or set-off on any account or of any kind. Any monies received by the Insurer from any reinsurers of the risks insured under this policy shall be received and held by the Insurer in trust for the relevant claimant Insured. A payment to the loss payee in accordance with this Clause shall, to the extent of that payment, discharge the liability of the Insurer to pay the Company or other claimant insured party. Each payment by the Insurer to a third party of a claim against the Company under a Public Liability Insurance insured by the Insurer shall be applied directly to discharge fully and finally an insured liability of the Company to that third party. The arrangements in this clause shall continue to apply notwithstanding the liquidation or insolvency of the Company or the Insurer.
10. The Insurers shall give to the Security Trustee at least 45 days notice in writing (in the event of (e) to provide notice as soon as practicable):
(a) if any Insurer intends to cancel or suspend this insurance or any cover under this insurance for any reason;
(b) before avoiding for non payment of any outstanding premium in order to give an opportunity for that premium to be paid within the notice period;
(c) before any reduction in limits or coverage, any increase in deductibles or any termination before the original expiry date is to take effect;
(d) of any act or omission or of any event of which the Insurer has knowledge and which the Insurer considers may invalidate or render unenforceable in whole or in part this insurance.