EXECION COPY LOAN AND GUARANEE AGREEMENT Beeween THE PEOPLE'S REPL3IC OF CHINA .s Borrmwer (represented by, and acting through, The Minisrry of Finance of the Pcople's Republic of China) partially guaraneed by INTERNATIONAL BANK FOR RECONSTRUCITON AND DEVELOPMENT (under its Expanded Co-financing Operations Program) BOT INTERNATIONAL (E.K.) LIMITED DRESDNER (SOUTH EAST ASIA) LIMITED and MORGAN GUARANTY TRUST COMPANY OF NEW YORK as Arrangers and Lead Managers I ASIA LIMITED THE KOREA DEVELOPMENT BANK THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED and THE MITSUBISHI BANK, LIMITED as Lead Managers THE SUMIOMO TRUST AND BANKING CO., LTD. THE MISUBISHI TRUST AND BANKING CORPORATION and OVERSEAS UNION BANK LTD as Managers BANQUE ET CAISSE D'EPARGNE DE LETAT, LUXEMBOURG and DAIWA OVERSEAS FINANCE LIMITED as Co-Managers DRESDNER (SOUTH EAST ASIA) LIMITED as Agent and OTrHERSQ é Ii Clifford Chance Singapore CONTENIS ~age No. part i INTERPREATIOi. 1. In.rpretation......... . 2 1art 2 THE FACILITY 2. The Fa .. ......... ........-.... -.. -.-.-.- .-.- . 10 3. --- ......... .....--.--.. 10 4. Conditions P .ec~ . 10 ........ ....................................................... 1 5. Nature of Banks' Obliga.ons 1 Part 3 AVALABILITY OF THE FACILITY 6. Avility of the Facility . . . . ... Part 4 INTERESF PERIODS 7..Interest Ptriods -....................................... 12 8. Duraion and Cosoida50 ion .. .............................. 12 Part 5 INTIERFST RATES 9. ine st... ....... .. -. -.- - .. ............................ 13 10. Alternative ieres Rates............................13 Part6 RPAYM»NT, CANCELLA1MON AND PREMYMENT 11. Repaynm............................................. 16 12. Caian and PrepaM"'M. -............................... 16 Part7 CHANGES IN CIRCL5S1TANCES 13. Tax=s .............. ............................... 18 14. .ax R.epes ................... ........ 18 15. Increased Cost............................................. .19 16. legality and MandaWwry Prepayme ......................... 20 Part 8 REPRESENTATIONS. COVENAN'IS AND EVENIS OF DEFAULT 17. Rer ema o . . .... ....... . ........ ....... . 22 18. Fina ian Infornation .................................... 24 19. Covenants ......... . .. . . 25 20. Evems of Default ...................................... 26 Part 9 21. IBRD Guaram~e ............................ ........ . 29 22. Role of IBRD ............... . ............... ...... . 32 23. IBRD's Liabily on Discosue .............................. 34 24. P ...... ........ . ....................... . ... 34 25. Represennrions of IBRD .................................. 34 26. Jurisdicrion . ........... . ....................... . ..... 34 Irt 10 DEFAULT INTEREST AND INDENINT 27. Defuk In e and ray .............................. 36 1rt 11 PAYMENTS 28. Currency of Accoum and Py ent ............................ 38 29. Paynms .............. . ............................ 39 30. Set-Off............................................. 40 31. Rristributionof Paynem .......... . . ..................... . 41 FEES, COSTS AND EXPENSES 32. Fees ................................................. 42 33. Costs avd Expenses ............................. .......... 42 Part 13 AGENCY PROVISIONS 34. The Agem, the Manage s and the Ban ........................ 44 Pbrt 14 ASSIGNMENTS AND TRANSFERS 35. Bncfi of Agree... .................................... 49 36. Assignnenr and Transrs by the Borower .. .. .. .. .. .. . ... .. .. . 49 37. Assignnns and Trarfrs by Bank . . . . . ..................... 49 38. Discosur l rmato. ...................................,1 Part 15 MISCELLANEOUS 39. Calculations and Evidence of Debt ........................... 52 40. Remedies and Waivers ................................... 53 41. PartialInvalidity . 53 42. Notices ............................................ 53 Part 16 LAW AND JURISDICTION 43. Law .............................................. 54 44. Jurisdiction .......................................... 54 THE SCIEDLES The First Schedule The Banks The Second Schedule Form of Transfer Certifcame The Third Schedule Condition Precedent Documents The Fourth Schedule Notice of Drasdown The Fifth Schedule Opinion of the Borrower's Chinese Legal Counsel The Sixth Schedule Opinion of the Banks' Chinese Legal Counsel The Seventh Schedule Opinion of IBRD's General Legal Counsel THIS AGREEMENT is m .e on 29 May. 1994 BETWEEN: (1) THE PEOPLE'S REPUBLIC OF CHINA (the "Borwerr ) represented by and acting through, The Ministry of Finance of the People's RepubHi of China; (2) INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT ("[BRD'); (3) BOT INTERNATIONAL (ELK) LIMITED, DRESDNER (SOUTH EAST ASIA) LIMITED and MORGAN GUARANTY TRUST COMPANY OF NEW YORK (the .Arrangers") and also as the "Iead Managers; (4) IBJ ASIA LIMITED, THE KOREA DEVELOPMENT BANK, THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED and THE MITSUBISHI BANK, LIMITED (as the additional "Lead Managm); (5) THE SUMITOMO TRUST AND BANMING CO., LT, THE MrlMUBISHI TRUST AND BANKING CORPORATION and OVERSEAS UNION BANK LTD (the wManag-rs); (6) BANQUE ET CAISSE D'EPARGNE DE LTAT, LUXEMBOURG and IIWA OVERSEAS FINANCE LIMITED (the *Co-Managen; (1) DRESDNER (SOUTH EASr ASIA) LIMITED (the *Agent); (8) THE FINANCIAL INSTITUTIONS named in the First Schedule (the *Banks). RECITAS (A) The Borrower wishes to arrange for the implet. m ion of the Project by liangsu Provincial Electric Power Comopany (wJPEPCw) and the Borrower has requested a loan from the Banks in the aggregate principal amount of S90,000,000.00 to enable the Borrower to make loans to JPEPC so as to partially finance such implementation of the Project by JPEPC. (B) The loan from the Banks, as referred to in Recital (A), is to be a co-financing under IBRD's Expanded Co-financing Operations ("ECO) program and is to be comded to the Borrower together with other firning for the Project provided, or to be provided, to the Borrower by IBRD under the IBRD Loan Agreement and by other banks and financial institutions under the Yen Loan Agreement. (C) Subject to the terms and conditions set forth herein, the Banks have agreed to provide the Borrower with a loan in te aggregate principal amoum of $90,000,000.00 on the understanding that IBRD will, as provided below, partially guarantee, in fyur of the Banks, of certain payment obligations of the Borrower for principal mooaerunder such loan on the terms and conditions haeinafter set forth. NOW IT IS HEREY AGREED as follows: INTERPRETATION 1. I 1.Z In this Agremnt= (including the Recitals hereto): *Adlaæ" m=s, save as oth wise provided herein, an advanc (w from time to time reducd by prepaymen or repaymem) mad or to be made by the Banks heremder, Appicable Tazes m: (i) any Chiese Taxes; (ii) any preset or future axes ef wharemer.nature imposed or levied, by or on behalf of any c~urry or jurisdiction (or politial sub-division ther~t) by any taxing authority thereof or therein, other than China (or any poliical su~division thero, ou of or through which the Borroer makes pay mn under or pursuant to this Agre-aenr and (iii) any axs of whatever nature imposed or levied by or on behalf of any country or jwisdiin (or poliical submivision thered> by any taxng authority treof or therein, other than China (or any poliical sub-~ivisiotr or other couty as referred to in paragraph (ii) of this definition, in which the Agent or any Bank is incorpored or, as the case ny be, in which its ~acility Office is located Pro~ided Always that the taxes referred to in this paragraph (iii) sha only be toe imposed or levied due to any change in the law of any such conny orjrisdiction (or poltical su"division theræfi comig n effecc aftr rhe dae of this Agreeodm *Artik of Agreement* mea the Articles of Ageemenr of the international Bank for Reconsarction and Development; *Ayfaw en.mifn~* means, in relation to a Bank at an tme, but subject to caeoarinn or nrin as herein provided, the amount set opposie is nm in the First ScheM less its porian of each Avan which bas then been made hereunder Availabe Facity" m~ean at any time, the aggreg t t Aaiable Cumime at such «Ceing Amn t" means an amoum in dollars equal to ten twenty-firsts of the Loan imnediaely after the cose of business in New York on the Termination Dam (but not to exceed $42,857,146.00); Provided Aways that if any prepaymen of a part of an Avane is made pursuam to Camuses 12.2, 12.4. 16.1 or 16.4, the Ceiling Amounr sha, but subiject tO. the provision cf Clause 21.10, be reduced by the sa:e proportion that the amount so prepaid bea1r to the amount cf the Loan onranding immediarely before giving effect to such prepay bm (ut after givh effect to any repayment made on the same da=e); Central Bank mea The Pbople's Bank of China or, as the case may be, any person succeeding thereto and carrying ou£ the functions of a central bank and monar autbority for the People's Republic of China; "Chi means the People's Republic of China: OCh~ Taxes" me= any present or fumre taxes of whatever nature imposed or levied ty or on behalf of, or by virtue of the laws of, China (or any political sub-division thereot) by any taxing a~oty therecf or therein; "Evn of Defaut neam any of tihose evems specea m iamse zu.i; *Fac~ Oy mcam the dollar loan facility granted to the Borrower i this Agreerrn 'Faci~ty Office means, in relation to the Agen or any Bank, the office identfied with is signan e below (or. in the case of a Traferee, at the end of the Trafer Certificae to which it is a party as Transfere) or such other office as it may from time to time sefec; "n e ? rie mepm: (i) the AgeM (ii) the Banks; (iii) the Arramgers; (iv) the Lead Managers; (v) the Managers; and (vi) the Co-Managers, (and any reference.theree in this Agreemene shall be construid as being to auy or aR of them>; wForeign Curr~ncy" mu= any currency other than Renmini "G"arante Caff Date n m the date which coincide with the twelfth Repaymem Dae "IBRD GUaran means the partia gnam=e gien by IBRD to the Agent for the benefit of the Bank pursuam to the provisions of Part 9; "IBRD Guaranteed An~mOe means. as at the date of determinoan there, an amount in dolars equal to the Ceiling Anun minu the aggregarecf: (i) the s-n of all mounts paid by IBRD under or pust to Clause 21; (i) the sum of all ammns in respect of which the Agent may t seve a demand on IBRD for pyn~et pursuant to Clause 21.3; and 1 1t j Ii n I, I6 IIS' Agent) at which each of the Reference Banks was offering to prime banLs in the Londcn Interbank Market deposits in dollasfor the specifed period, at or about 11.00 am. (London titm) o:n the Quotation Dare for such period; and, for the purposes of this defmition, -spedfied pariod" means the Inter:st Period of such Advance or. as the casv may be, the period in respect of which LIBOR falls to be deermined in relation to such unpaid sunr "Loan means the aggregate principal amount of the Asances for the time being outstanding hereunder, Margim" means 0.40 per cent. per anom- Netce of Drawdown means a notice in, or substanially in, the form set out in the Fourth Schedule "Patenial Evet of Default" meas any event which may, pursuant to Clause 20.1. become (with the passage of time, the giving of notice, the making of any de a heeum er or any combination thereof) an Evewr of Debmlt "Principal MGnia me" the indebedness of the Borrower to the Banks in respect of the Loan, but excluding for the avoidance of doubt any payments of imter thai my have been capitalised pursuant to the provisions of Cause27; "Project means the Yangzhou Thermal Power Project of the People's Republic of China as more fully described in the Indmniay Agreement; "Quotation Date" means, in relation to any period for which an infrest rate is to be determined hereWader the day on which quotioms would ordinarily be given by prime banks in the L1 wndn Interbank Market for deposits in the currency in relation to which such rae is to be determined for delivery on the first day of that period; Provided Always that, if for a=y such period quoations would ordinarily be given on more zan one dare, the Quotation Date for that period shall be the last of those dares; "Mferece Banks means the principal London offices of The Bank of Tokyo. Lsd. Dresdner Bank AG and Morgan Guaranty Trust Company of New York or such other bank or banks as may from time to time be agreed between the Borrower and an lstructing Group; R v Is means indebtednss whic- (i) is for money borrowed and which is (A) issued or incurred directly by and in the nae of the People's Republic of China and (B) backed by the full faith and credit of the People's Republic of China or (ii) is incurred by and in the name of the People's Republic of China ander or pursuant to a wriat= guarantee that expressly refts to and coms the indelxedness for money borrowed of one or more other persons, and such gumnnse is (A) issued by and in the name of the People's Republic of China and (B) backed by the full faith and credit of the People's Republic of China, Provided Always that: (a) as used in paragraph (i) hereof, money borrowed "directly by and in the name of the People's Republic of China" shall not include money borrowed by any state-owned corperation or in the name of any public agecy or instrumentality of China (whether or not such corporation, agency or itrumentality has, under the laws of China (or any political sub-division thereof), a separate legal existence); .Jt n * rn v'g-*a. %' (;) h = aq, y borrowed "directly by and in the name of the People's Republic of China shall include money borrowed where the People's Republic of China is expres:d to be the obligor, but for such purpose is represered by, and acting through (or an equivalent expression) any other person authorised to act on its behalf (including, but without limitation, the Central Bank acting on its behalf; (c) as used in paragraph (ii) heofec, a guarantee will be daemed to 'epresly refs to and covers such indebtedness" it, as at the dae of issuance thereof, both of the folowing conditians are satisfied; namely: (1) such reference or coverage is prov-ed by or stipulaled in any applicable law of the People's Republic of Chir; and (2) such guarantee refers to either (y) a specific issuance or incurrence of money borrowed by one or more persons or (z) a specific class of money borrowed which is issued or incurred by one or more persons identified in or identifiable from the trms of such guaramme, and for these purposes a -specific das of money borrowd means a class more limied than the indebtedness of tte Pe4le's Republic of China's state-owned corporations taken together, or public agencies taken together or. as the case may be, other iistrumenalities taken together, (d) as used in paragraphs (i) and (ii) here, the expression backed by the ful faith ar credit of the People's Republic of Cbhna" shall be costrued as meaning that: (1) the documentation constitutin or evidencing the money borrowed or, as the case may be, the guarantee thereof eiter contains an express statement to that effect (or, if it does not contain such an express statement, there is no limitation therein which restricts the obigatioas of the People's Republic of China thereunder to the proceeds of any limited or specific class of assets or revenues); and (2) the applicable law of the People's Republic of China which authorised the issuance or incurrence of the money borrowed or, as the case may be, the guarantee thereof did not, as at the datetht such authcrity was granted, contain any express provision which was at variance with the requirements. of sub-paragraph (1) hreof: and (e) as used in this Agreement (1) "money borrovied" shall include by way of loan or other form of irit:=ness as well as by means of any bond, note or other issue of securities and (2) -guaanteed" and -guaranteem shall include any indemnity or other assurance against loss. "Repayment Date" means each of the days which are 60, 66, 72, 78, 84, 90, 96, 102, 108, 114, 120, 126, 132, 138, 144, 150, 156, 162, 168, 174 and 180 months after the daze hereof; "Renters Screen LIBO Page" means the display page so designated on the Reuter Monitor Money Rates Service (or on such other page as may replace that page on that semvice, or such other service as may be nominated by the information vendor, for the purpose of displaying rates comparable Termination Fate" means the earlier of the day which is 36 months after the date hereof and the first business day on which the A-milable Commitnent of each of the Banks is zero; qTransfer Certiicate" means a certificate in, or substantally in, the form set out in the Second Schedule (or in such other form as may be agreed between the Agen and the Borrower or; as the case may be, as is determined by the Agent to be appropriate for the purposes of Clauses 12.7 or 21.15) signed by a Bank and a Transferee whereby: (i) such Bank seeks to procure the transfer to such Transferee of all or a part of such Bank's rights and obligations hereunder upon and subject to the terms and conditions set out in Clause 37; and (ii) such Transferee undertakes to perform the obligations it will assume as a result of delivery of such certificate to the Agent as is contemplated in Clause 37.3; "Transfer Date" means, in relation to any Transfr Certificate the date for the making of the transfer as specified in the schedule to such Transfer Certificate; "Transferee" means a bank or other fi :ncial institution to which a Bank seeks to transfer all or part of such Bank's rights and obligations hereunder, "unpaid sam" shall h2ve the meaning ascribed thereto in ause 27.1; an wYen Lan AgreemenAp means the loan and guarantee agreement entered or to be entered inan between the Borrower, IBRD, as partial guarantor, and the fmbancial institutions therein named in relation to the Project whereby such financial institutions have or will have agreed to provide the Borrower with a loan in the aggregate principal amount of 73,200,000,000.00. 1.2 Any reference in this Agreement to: the "Agent" or any "Bank" shall be construed so as to include its and any subsequent successors, Transferees and assigns in accordance with their respective interests; -7- a "basiness day" shall be construed as a reference to a day (other than a Saturday or Sunday) on which banks are generally open for business in Beijig. London. New York City, Hong Kong and Singapore; a 'Os*-e" shall, subject to any contrary indication. be construed as a refirence to a clause hereof: a "currency" includes, without limitation, any unit of account; an encumbrance" shall be construed as a reference to a mortgage, charge, pledge, lien or other securnty interest; the "equivaleft" on any given date in one currency (the 'first currency') of an amount denominated in another currency (the "second currency") is a reference to the amonr of the first currency which could be purchased wishie amount of the second currency at the spot rate of exchange quoted by the Agent at or about 11.00 a-m. on such dare for the purchase, in the Singapore foreign erchange market, of the first currency with the second currency; "External Indebtedn " shall mean (i) Relevant Indebtedness which is owed to any person expressed, denominated or payable (whether opiocally or otherwise) in a Rreign CurrEncy and (ii) for the purposes of Clause 19.3, but not further or otherwise, any indebedness which is owed to any person expressed, de3ominated or payable (whether opionally or oderwise) in a Foreign Currency; "gold and foreign echtange reserves of China" shall be construed as China's present and future gold and other reserves by whomever and in whatever form owned or held, provided that such gold or other reserves are publicly held out by the Government of China as the official external reserves thereof. a "holding company" of a Bank shall be construed as a reference to any company or corporation of which the Bank is treated a subsidiary for any outing, regulatory or analogous purposes; "indebtedness" shall be construed so as to include any obligation (whether incurred as principal or as surety) for the payment or repayment of money. wheter present or future, actual or contingent- 'lav" includes any law, order, statute, statutry instrument, regulation, decree, directive or Sinsrument of equivalet effect- a "London business day" shall be construed as a day on which commercial banks and foreign exchange markets settle payments in London; the Managers" shall be construed as also including the Arrangers, all of the Lead Managers and the Co-Managers; a "month" is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next succeeding calendar month sae that, where any such period would otherwise end on a day which is not a business day, it shall end on the next succeeding business day, unless that day fal'c in the calendar month succeeding that in which it would otherwise have ended, in which case it shall end on the immediazely preceding business day; Provided Always that, if a period starts on the last business day in a calendar month or if there is no numerically -8- coresponding day in the month in which that period ends, that period shall end on the last business day in that ater mordh (and refrences to -months- shall be construed accordingly); a "Part" shall, subject to aay cortrary indication, be constr"ed as a reference to a part hereof; a "perse" shall be construed as a reference to any person, firM, company, corporation, government. stare or agency of a sate or any association or partnership (whether or not having separate legal personality) of tw or more of the foregoing; a "Scbedle" shall, subject to any conurary indication. be construed as a reference to a schedule hereto; and 'taz shall be construed so as to include any present or future tax, levy, impost, duty or other charge of a similar nature (including, without limitation, any penalty or insrest payable in connection with any failure to pay or any delay in paying any of the same). 1.3 S and "dollarso denoes lawful currency of the United Staes of America. 1.4 Save where the cootrary is indicated, any reference in this Agrment to: (i) this Agreement or any other agreement or document shall be construed as a reference to this Agreement or. as the case ay be, such other agreement or document as the same nay have been, or may from time to time be, amended, varied, novared or supplemented; (ii) a statute shall be construed as a reference to such statue as the same may have been, or may from time to time be, amended or re-enacted; and (iii) a time of day sLjl be construed as a reference to Singapore time. 15 Claus , Part and Schedule headings are for ase of reference only. -9- Part 2 THE FACILITY 2. The Facility The Banks grant to the Borrower, upon the terms and subject to the conditions hereof, a dollar loan facility in an aggregate amo=u of S90.000.000.00. 3. Purpose 3.1 The purpose of the Facility is to finance part of the expenditure of JPEPC under the Project and, accordingly, the Borrower shall easure that the proceeds of each Advance are applied in accordance with the applicable provisions of the Indemnity Agreement. 3.2 Without prejuice to the provisions of Clause 3.1 neither the Agent, IBRD nor any of the other Finance Parties shall be obliged to concern themselves with the application of amonms raised hereby by the Borrower and/or JPEPC and, but without linitaion to the generality of the foregoing, none of the Finance Parties shall have any obligation to IBRD in any cir s es to (i) concern themselves as aforesaid and/or (ii) ensure that the Borrower complies with its obligations under Clause 3.1 (it being expressly agreed by and between the Finance Parties and IBRD that the obligations of IBRD under or pursuant to Part 9 are not conditional in any way or to any extent upon the application of the Borrower and/or JPEPC of any such amounts or such compliance as aforesaid). 4. Conditions Precedent Save as the Banks and IBRD may otherwise agree, the Borrower may not deliver the first Notice of Drawdown hereunder unless the Agent has confirmed to the Berowe the Banks and IBRD that it has received all of the documens listed in the Third Schedule and that each, in the opinion of the Agent (who shall exercise its reasonable judgment in this regard), is in form and substance, satisfactory to the Agent. The Agent shall, and is hereby authorised by the other Finance Parties to, provide IBRD (as soo as it is reasonably possible to do so) with a copy of each document delivered pursuant to the Third Schedule (except any such document supplied to the Agent by or on behalf of IBRD). 5. Nature of Banks' Obligations 5.1 The obligations of each Bank hereunder are several. 5.2 The failure by a Bank to perform its obligations hereunder shall not affect the obligations ot failure by such Bank to perform its obligations herunder. -10- !art 3 AVAILABILITY OF TIHE FACILITY 6. Availability of the Facility 6.1 Save as otherwise provided herein, an Advance will be made by the Banks to the Borrower if: (i) not more than ten business days before (and no later than 12.00 noon on the fourth business day before) the proposed date for the making of such Advance, the Agent has received from the Borrower a Notice of DravAlown therefor, receipt of which shall oblige the Borrower to borrow the amount therein requested on the dare therein stated upon the terms and subject to the conditions contained herein (ii) the proposed date for the making of such Advance is a business day which is or precedes the Termination Dare; (iii) the proposed dawe for the making of such Advarte is not less than five business days after the dae upon which the previous Advance (if any) was made hemnder- (iv) the proposed amount of such Advance is (a) an amount of not less than $10,000,000.00 and is an integral muiltiple of $10,000,000.00 which is less than the amount of the Available Facility or (b) equal to the amont of the Available Facility; (v) the interest rafe applicable to such Advance duing its first loterest Period would not fall to be determined pursuant to Clause 10.1; and (vi) either: (a) no Event of Default or Pbtential Event of Default has occurred; and (b) the representations set out in Clause 17 are true on and as of the proposed date for the making of such Advance, or each of the Banks agrees (notwithstanding any matter mentioned at (a) or (b) above) to participate in the making of such Advance. 6.2 Each Bank will participate through its Facility Office in each Advance made pursuant to Clause 6.1 in the proportion borne by is Available Commitment to the Available Facility immediately prior to the making of that Advance. 6.3 If a Bank's Available Commitment is reduced in accordance with the terms hereof after the Agent has received the Notice of Drawdown for an Advance, then the actual amount of that Advance shall be reduced accordingly. If, as at the close of business in New York on the Termiation Date, a Bank's Available Commitent has not been drawn down in full then, as at such tme and date, such Bank's Available Commitment shall be automatically reduced to zero. .111W Plart 4 INTEREST PERIODS 7. Interest Iriods The period for which an Advance is outstanding shall be divided into successive periods each f which (other than the first) shall start on the last day of the preceding such period. lor the purposes of the computation of the amount of any interest payable by the Borrower on an Advance in respect of an Interest Period relating thereto, the first day of an Interest Period shall be included and the last day thereof shall be excluded. 8. Duration and Consolidation 8.1 The duration of each Interest Period snan, save as omerwse provide beren, be six months; Provided Always hat: (i) ay Interest Period which begins during or at the same time as any other Interest Period shall, if the Advances to which those Interest Periods relate are denominated in the same currency, end at the same time as that other Interest Period; and (ii) any Interest Period which would otherwise end during the month preceding, or extMr beyond, a Repayment Date shall be of such duration tint it shall end on that Repayment Date (or. if the Advance to which such Interest Period relates is denominated in a currency for which that Repayment Datm is not a business day, the immediately succeeding business day for such currency). 8.2 If two or more laterest Periods relating to Advances end at the same time, then, on the last day of those interest Periods, those Advances shall be consolidated into (and thereafter, save as otherwise provided herein, treated in all respects as) a single Advance. - 12.- Pa rt 5 INTEREST RATES 9. Interest 9.1 On the last day of each Interest Period the Borrower shall pay accrued interest on the Advance to which such Interest Period relates. 9d2 The rate of interest applicable to an Advance from time to te during an ere Period relating thereto shall be the simple rate per anmn which is the sum of the Margin and LIBOR on the- Quotation Date therefor. 10. Aleativ-e Interest Rates 10.1 In relation to any Advance and any iterest Period relating thereto: (i) if (but only ift) 1.IBOR for such Advance w , but for ts provion, be daemied min accordance with paragraph (!i) of the defmnition theref, the Agent determines that at or about e1.00 apm. on the Quotation Dare for such Interest Period none of the Reference Banks vias offering to prime banks in the London Interbank Market deposits in doIaEs for the proposed duration of such inte Period;- or (i) if before the close of business in London on the Quotation Dare for such Ince Period, the Agent has been nodfied by a Bank or each of a group of Banks to whom n aggregate smxty-seven per ce nt or more of pe cent of the raeLoan is (or if an Advance wee then made, wo d be) owed that LIBOR for such Advae (whether determined in accordance with paragraph i) or (i) of the deosition theret) does not accurately reflece it to it itof obtaining such depositsn then notwithstanding the provisions of Claus;es 7, 8 and 9: (a) if paragraph (i) above applies. the duration of that interest Period shall be one month or, if less, such that it shall end on the next succeeding e Date; and (b) if paagraph (i) or (ii) above applies t rat of increost aplicable to such Advance from am to time during such Interest Period shall be the rate per antm which is the sum of the M1argin and the rate per annoum deuerired by the Agent to be the weighied arithmetic average (rounded upwards, if not already such a multiple, to the nearest whole muitiple of one-sixteent of one per cent.) of the rates notified by each Bank to the Agent before the last day of such lnterest Period to be those which ecpress as a percentage raw per annumn the cost to each Bank of funding from whatever sources it may select its portion of such Advance during such Itrs Period (and, in determining such weighted arithmetic aerage, the Agent shall, mn its calculations, make due allowance for the relative si2e of ecCh Bank!s partic*'2t'On iR such Advance in relation to each Bank's respective cost of funding as aforesaid); Provided Aiways that: - 13 - (1) each Bank which notifies a rate to the Agent pursuant to this sub-paragraph (b) shall confirm therein., for the benefit of the Gor r that in choosing its sources for the finding of its portion of such Advance durirg such Interest Period it has acted in a manner which is fair and reasonable in the circumstances and which does not adversely differ in any material respect. with is actions in relation to other comparable extensions of credit by it (if any) which have. on or about the same time and date, been similarly affected: (2) if, at any time during an Interest Period for an Advance to which the foregoing provisions of this sub-paragraph (b) apply the Agent determines, after consultation with the Banks and the Borrower, and notifies the Banks and the Borrower that it has become possible (without any Bank thereby incurring any funding or analogous ca in relaion to the alternative sources of funding it may have already utilised in relation thereto) (A) in the case of paragraph (i) above, to establish and appy the rate per annum equal to LIBOR for the remaining part of such Interest Period or (B) in the c2se of paragraph (ii) above, for each of the Banks who have gimen a notification pursuant thereto (or such of them as have not been prepaid pursuant to Clause 12.4 or have been the subject of a transfer pursuant to Clause 12.7) to recover the cost of funding their respective portions of such Advance for the remaining part of such Interest Period by establishing and applying the rate per annum equal to LIBOR in relation thereto, then as and from the third business day from but exclusive of the date of the Agent's determination and notification as aforesaid (or such earlier date as may be agreed between the Banks, the Agent and the Borrower) the rate of interest applicable to such Advance for the remaining part of such Interest Period shall be determined in accordance with the provisions of Clauses 7, 8 and 9 as if the remaining part of such Interest Period were a separate Interest Period but, for the amoidance of doubt, any interest which has already accrued in relation to such Advance pursuant to the foregoing provisions of this sub-paragraph (b) shall only be payable by the Borrower at the end of the remaining part of such Interest Period together with the other interest due in relation to such Advance and that Interest Period (3) in relation to any Advance or Advances to which sub-paragraph (ii) above applies, the maximum aggregate period of time (on any one or more occasions. whether consecutive or not) for which a rate of interest can be established pursuant to the foregoing provisions of this sub-paragraph (b) in respect of all such Advances shall not exceed si . months and, in relation to any raining part of any Interest Period for any Advance to which the foregoing provisions of this sub-paragraph (b) cannot be applied by virtue of such time limitation, the rate of interest therefir shall thereafter be determined in accordance with the provisions of Clauses 7, 8 and 9r as if the remaining part of such Interest Period were a separate Interest Period but, for the avoidance of doubt any interest which has already accrued in relation to such Advance pursuant to the foregoing provisions of this sub-paragraph (b) shall only be payable by the Borrower at the end of such Interest Period together with the other interest due in relation to such Advance and that Interest Period: and (4) if, in relation to an Advance, all of the Banks who have given a notification pursuant to paragraph (ii) above in respect of such Advance have (A) been prepaid in full by the Borrower pursuant to Clause 12.4 andior (B) been the subject of a completed Transfer Certificate pursuam to Clause 12.7, then, if such prepayment/transfer occurs during the continuanm of an [nerest Period to which the foregoing provisions of this sub-paragraph (b) are applied, as at and from trit exclusive of the date of such prepaymentitransfer (but only so long as it would not involve any remaining Bank thereby incurring any funding or analogous costs or expenes in relation to the alternative sources of funding it may have already utilised in relation thereto), the raie of ierest applicable to such Advance for the remaining part of such Imerest Period shall be determined in accordance with the provisions of Clauses 7, 8 and 9 as if the remaining part of such [nrest Period were a separate Interest Period but, for the avoidance of doubt, any inerest which has accrued in relation to that Advance pursuant to the foregoing provisions of this sub-paragraph (b) shall only be payable at the end of the remaining part of such Inerest Period together with the other inerest due in relation to such Advance and that Interest Period. 10.2 If (i) either of those events mentioned at paragraphs (i) and (ii) in Clause 10.1 occurs or (ii) irrespective as to the basis on which LIBOR is to be debrmined for the purposes of this Agreemet, by reason of circumristances affecting the London Izerbank Market during any period of five consecutive business days none of the Reference Banks offers deposits in dollars to prime banks in the London Interbank Market, then- (a) the Agent shall notify the Borrower and the Banks of such event (and, in the event of the occurrence of the circumstances described in paragraph (ii) above, the Agent shall certify in its notification to the Borrower that it is of the opinion, after consultation with the Banks, that the circumances in question are not likely to be past or otherwise ceased to be relevant by the nxt succeeding Repayment Date); and (b) if the Agent so requires, within five days of such notification the Agent and the Borrower shall eter into negotiations with a view to agreeing a substitute basis (1) for determining the rates of interest from time to time applicable to the Advances and/or (2) upon which the Advances my be mainaimd (w6nher in dollars or some other currency) thereafter and any such substitue basis that is agreed shall take effect in accordance with us terrs and be bining on each party bereo; Provided Always that the Agent may not agree any such substitue basis without the prior consent of each Bank. Part 6 REPAYMENT. CANCELLATION AND PREPAYMENT II. Repayment The Borrower shall repay the Loan by repaying in respect of each Repayment Dae an amount equal to ne-rwenry-first of the amount of the Loan at the close of business in New York on the Termination Date. 12. Cancellation and Prepayment 12.1 The Borrower may, by giving to the Agent not less than thirty days' prior written notice to that effect, cancel the whole or any part (being not less than S5,000,6W.0irina iii acdib,'in integral multiple of S1,000,000.00) of the Available Facility Any such cancellation may only be effected after the dae of this Agreernen and before the Termination Date and shall reduce the Available Commitments of the Banks rateably. Any cancellation of the Available Facility shall not be capable of being reinstated in any circumstances. 12.2 The Borrower may, if it has given to the Agent not less than thirty days' prior wren notice to that effect, prepay the whole of any Advance or any part of any Advance (being an amount such that the amount of such Advance will be reduced by not less than $5,000,000.00 and, in addition, an integral multiple of SI,000,000-00) on the last day of any Interest Period relating to that Advance which ends after the Termination Date. Any repayment so made shall reduce rateably the remaining obligations of the Borrower under Clause 11. 12.3 Any notice of cancellation or prepayment given by the Borrower pursuant to Clause 12.1 or 12.2 shall be irrevocable, shall specify the da:e upon which such cancellation or prepayment is to be made and the amount of such cancellation or prepayment and. in the case of a notice of prepayment, shall oblige the Borrower to make such prepayment on such date. 12.4 If (i) any Bank claims indemnification from the Borrower under Clause 13.2 or Clause 15.1 (ii) the Borrower is required to make an increased payment in relation to such Bank pursuant to Clause 13.1 or (iii) any Bank gives a notice pursuant to Clauses 10.1(ii) or 16.1, and (in any of the foregoing circumstances) within 90 days thereafter the Agent receives from the Borrower at least thirty days' prior notice (which shall be irrevocable) of the Borrower's intention to prepay such Bank!s share of the Loan, the Borrower shall on the day specified in such notice (which mnust be a business day but need not be the last day of an Interest Period) prepay such Bankes portion of each Advance together with accrued interest thereon and any sum payable pursuant to Clause 27.4 (but otherwise without fee, premium or penalty). Any prepayment so made after the Termination Date shall reduce rateably the remaining obligations of the Borrower under Clause 11. 12.5 A Bank for whose accint a prepayment is to be made under Clause 12.4 shall not be obliged to make ary advances hereunder on or after the dare upon which the Agent receives the Borrower's notice of its intention to prepay such Bank's share of the Loan, on which date such Bank's Available Commitment shall be reduced to zero. - 12.6 The Borrower shall not prepay or repay all or any part of the Loan except at the times and in the rnanner expressly provided for in this Agreement and shall not be entitled to reborrow any amPount prepaid or repaid. 12.7 In respect of any Bank as is the subject of the circumstances described in paragraphs (i), (ii) or (i) of Clause 12.4 (a "Relevant Bank"), the Borrower may, as an alternative to prepayment as therein referred to, require such Relevant Bank to complete and execute a Transfer Certificate in fanour of a bank or financial institution nominated by the Borrower for this purpose (a "Nomninee Transeree") in respect of the whole (but not part only) of its Available Commitnent (if any) and share of the Loan- Provided Always that (i) the consideration receivable by such Relevant Bank on the Transfer Date under such Transfer Certificate shall be the same amount as if such Relevant Bank had been prepaid in full pursuant to Clause 12.4 (and such Transfer Certificate shall be expressly conditional uoon such.maent being made to such Relevant Bank) (ii) the execution, delivery and performance of such Transfer Certificate by the Relevant Bank shall not be conmray to any applicable law binding on it (iii) the identity of such Nominee Transferee mrst be acceptable to the Agent and the other Banks (such acceptance not to be unreasonably withheld or delayed) and (iv) the Borrower shall only be entitled to exercise its rights under this Clause 12.7 subject to the same limitations as would have applied mutatis mutandis to a prepayment pursuant to Clause 12.4. - 17- 9I Part 7 CHANGES IN CIRCUMSTANCES 13. Taxes 13.1 All payments to be made by the Borrower to any Finance Party under this Agreement shall be made free and clear of and without deduction for or on account of any Applicable Taxes unless the Borrower is required to make such a payment subject to the deduction or withholding of any Applicable Taxes, in which case the sum payable by the Borrower in respect of which such deduction or withholding is requied to be made shall be increased to the extent necessary to ensure that, after the making of the required deduction or withholding, such Finance Party (or the Agent on its behalf) receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received and so retained had no such deduction or withholding been made or requud to be made. - 13.2 Without prejudice to the provisions of Clause 13. 1, if any Finance Party (or the Agent on its behalf) is required to make any payment on account of Applicable Taxes (not being a tax imposed on the net income of such Finance Party or on the net income of such Finance Party's Facility Office in either case by the jurisdiction in which it is incorporated or in which its Facility Office is located) on or in relation to any sum received or receivable under this Agreement by such Finance Party (or the Agent on its behalf) including, but without limitation, any sum received or receivable under this Clause 13 or any liability in respect of any such payment is asserted, imposed, levied or assessed against such Finance Party (or the Agent on its behalf), the Borrower shall, upon demand of the Agent, promptly indemnify such Finance Party against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith. If practicable in the circumstances, the Agent shall (or. as the case may be, the Bank in question shall) notify the Borrower of its intention to pay any Applicable Taxes as are the subject of the provisions of this Clause 13.2. 13.3 A Finance Party intending to make a claim pursuant to Clause 13.2 shall notify the Agent of the event by reason of which it is entitled to do so, whereupon the Agent shall notify the Borrower thereof; Provided Always that nothing herein shall require such Bank to disclose any confidential information relating to the organisation of its affairs. 14. Tax Receipts 14.1 If, at any time, the Borrower is required by applicable law to make any deduction or withholding from any sum payable by it hereunder (or if thereafter there is any change in the races at which or the manner in which such deductions or withboldings are calculated), the Borrower shall promptly notify the Agent. 14.2 If the Borrower makes any payment hereunder in respect of which it is required to make any deduction or withholding, it shall pay the full amourt required to be deducted or withheld to the relevan taxation or other authority within the time allowed for such payment under aplicable law and shall deliver to the Agent for each Bank. within thirty days after it has made such payment to the applicable authority, an original receipt (or a duplicate or a certified copy thereof) issued by such authority or other evidence, acceptable in the reasonable opinion of the Agent, evidencing the payent to such authority of all amounts so required to be deducted or withheld in respect of that BWk's share of such payment. 15. Increased Costs 15.1 If, by reason of (i) any change in law or in its interpretation or administration made or odherwise effected after the date of this Agreement andior (ii) compliance with any request from or requirement of any central bank or other fiscal, monetary or other authority (including, without limiiation, a request or requirement which affects the manner in which a Bank or any holding company of such Bank is required to or does maintain capital resources hp7ing regard to such Bank's obligations hereunder and to amounts owing to it hereunder) made or otherwise effected after the date of this Agreetnen (a) a Bank or any holding company of such Bank incurs a cost as a result of such Bank's having entered into and/or performing its obligations under this Agreement and/or assuminag or nmnnig a commiuent under this Agreemen and/or making one or mere advances hereunder; (b) a Bank or any holding company of such Bank is unable to obtain the rate of return on its overall capital which it vuld have been able to obtain but for such Bank's having entered into and/or performing its obligations and/or assuming or mn mg a commitment under this Agreement; (c) there is any increase in the cost to a- Bank or any holding company of such Bank of funding or minrining all or any of the advances comprised in a class of advances formed by or including the advances made or to be made by such Bank hereunder or (d) a Bank or any holding company of such Bank becomes liable to make any payment on account of any Applicable Taxes or otherwise (not being a tax imposed on the net income of such Bank or on the net income of such Bank's Facility Office in either case by the jurisdiction in which it is in orporated or in which its Facility Ofice is located) on or calculated by reference to the amount of the advances made or to be made by such Bank hereunder and/or to any sum received or receivable by it hereunder, then the Borrower shall, from time to time within 30 days after the demand of the Agent, promptly pay to the Agent for the account of that Bank amounts sufficient to indemnify that Bank (or, as the case may be, to enable that Bank to indemnify its holding company) against, as the case may be, (1) such cost (2) such reduction in such rate of return (or such proportion of such reduction as is, in the opinion of that Bank, attributable to its obligations hereunder) (3) such increased cost (or such proportion of such increased cost as is, in the opinion of that Bank, attributable to its fuinding or maintaining advances hereunder) or (4) such liability; Provided Always that interest shall begin to accrue immediately on the amount which is the subject of such demand, as at and from the date of the Borrower's receipt thereof, at the rate referred to in Clause 27.2 as if it were an unpaid sum Provided Further Always that nothing contained in this Clause 15.1(a), (b) or (c) shall require the Borrower to pay any amount, in respect of taxes, for which it is not liable under the provisions of Clause 13. - 19 - 15.2 A Bank intending to make a claim pursuant to Clause 15.1 shal notify the Agent of the evemt by reason of which it is entitled to do so, whereupon the Agent shall notify the Borrower thereof: Provided Always that nothing herein shall require such Bank to disclose any confidential information relating to the organisation of its affairs. 15.3 The provisions of Clause 15.1 do no( apply to any costs, reductions, increased costs or liabilities as therein referred: (i) to the extent incurr-d by a Bank or its holding company (but not by banks. or a class of banks. generally) which arises as a result only of its own bad debts (or provisions for bad debts); or (ii) to the extent that: (a) it ts incurred solely as a result of a failure by that Bnk or its hoding company to make any disclosure to, or filing with, a relevant banking regulatory authority; and (b) such Bank or its holding company wxd normally and reasonably be expected to make such a disclosure or filing in accordance with both its own, and general. banking practices and policies. 16. Illegality and Mandatory Prepayment 16.1 If, at any time, it is unlawful for a Bank (an "Affected Banka) to make, fund or allow to remain outstanding all or any of the advances made or to be made ly it hereunder, then that Affected Bank shall, promptly after becoming aware of the same, deliver to the Borrower through the Agent a certificate (containing such evidence as to the exismnce of such unLawfulness as is, in the Agent's reasonable judgment, acceptable for these purposes) to that effect and: (i) such Affected Bank shall not thereafter be obliged to make advances hereunder and the amount of is Available Commianent shall be immediately reduced to zro; and (ii) if, in respect of any Advances, it wou!d in the bona fide opinion of such Affected Bank, be unlawful Kzr such Affeced Bank's share of such Advances to be outstanding until the due date for repayment thereof pursuant to Clause 11 the Borrower shall repay such Affected Bank's share together with accrued interest thereon and any sum payable pursuant to Clause 27.4 (but otherwise without fee, premium or penalty) either immediately or on the date specified by such Affected Bank through the Agent as being, in its bona fide opinion, the last day of any applicable grace period pernitted by applicable law. 16.2 If, in respect of any Bank, circumstances arise which vuld or would upon the giving of notice result in: (i) the reduction of its Available Commitment to zero pursuant to Clause 16.1(i); (ii) the prepayment of its portion of the Loan pursuant to Clause 16.1(ii); -20- (iii) an increase in the amount of any payment to be made to it for its account pursuant to Clause 13.1; or (iv) a claim for indenmificaion pursuant to Clause 13.2 or 15.1. then. without in any way limiting, reducing or otherwise qualifying the Borrower's obligations under any of the Clauses referred to in sub-paragraphs (i), (ii), (iii) and (iv) above, such Bank shall. promptly upon its Faciliry Office becoming aware of the same and the possible results thereof, notify the Agent thereof and, in consultation with the Agent and the Borrower, take such steps as the Bank in its bona fide opinion considers approprate to nutigate the effects of such circumstances including the transfer of its Facility Office to another jurisdiction or the transfer of its rights and obligatios hereunder to another financial institution willing to participate in the Facility: Provided Always that such Bank shall be under no obligation to take any such steps if, in the bona fide opinion of such Bank, such steps vuld or might have an adverse effect upon its business, operations or financial coalition. k6-3 In the event (i) the IBRD Guarantee ceases for any reason to be valid and lgally enforceable in accordance with its terms against IBRD (ii) it becomes impossible or unkwful for IBRD to perform any obligation under tnis Agreement (iii) the IBRD Loan Agreement shall not have been entered into by the Borrower and IBRD within 180 days after the date hereof or (iv) the facility under the IBRD Loan Agreement is terminated in full by IBRD pursuant to the erms thereof, then the Agent may and upon the written direction of an Insmcting Group shall, Zy notice to the Borrower which notice shall specify a date for repayment and the amounts to be prepaid, require the Borrower to prepay the Loan in full together with interest accrued thereon and any sum payable pursuant to Clause 27.4 (but otherwise without fee, premium or penalty) and the Borrower shall pay the same on or within 5 business days from and inclusive of the date specified for such prepayment. For the avoidance of doubt, it is agreed that the foregoing period of 5 business days is in place of (and not in addition to) the periods of 5 or 7 business days referred to in Clause 20.1(i) and that Clause 20.1(i) shl be construed mutatis mutandis accordingly. 16.4 In the event that IBRD notifies the Agent and the Borrower that IBRD requires the Borrower, pursuant to the terms of the indemnity Agreement, to prepay any part of the Loan, the required amount of such prepayment and the basis for such requirement, then the Borrower shah on the last day of the Interest Period which is current as at the dare of the Borrower's receipt of such notice (or if such notice is given within 30 days prior to the last day of the then current Interest Period, on the last day of the x1pnerest Period which commences immediately after the date of the Borrower's receipt of such notice) prepay the portion of the Loan so required to be prepaid without fee, penalty or . premnum, but together with interest accrued thereon to and including the date of prepayment. Any such prepayment so made shall reduce rateably the remaining obligations of the Borrower under Clause I 1. Part 8 REPRESENTATIONS, COVEV4ANIS AND EVENTS OF DEFAULT 17. Representations 17.1 Subject to any qualifications or reservations as to matters of law referred to in the opinions referred to in paragraphs 3, 4. 5 and 6 of the Third Schedue, the Borrower represents to the Finance Parties that: (i) it has power to enrter into this Agreement and to exercise its rights and perform its obligations hereunder and all action required to authorise its execution of this Agreement and is performance of its oblgations hereunder has been duly taken (ii) nder the laws of China in force at the dare hereof, it will not be required to make any deduction or withholding from any payment it may make heremder; (iii) under the laws of China in force at the date hereof, the claims of the Finance Parties against the Borrower under this Agreement will rank at least Pari pasn with the claims of all its other unsecured and non-subordinated creditors in respect of External Indebtedness; (iv) the agreement and waiver contained in Clause 44.2 is effective and irrevocably binding on the Borrower; (v) in any proceedings taken in China in relation to this Agreement, the choice of English law as the governing law of this Agreement will be recognised and enforced; (vi' under the laws of the People7s Republic of Chrna, a final judgnt for a sum of money rendered by a court in England in an action to enforce the obligation of the Borrower under this Agreement or to claim from the Borrower any sum due as a result of a defalt hereunder or for any other reason will not be enforceable by the courts of the People's Republic of China absent a re-examioaion of the mners thereby adjudicated subject to and in accordance with the provisions of Sections 267 and 268 of the Civil Procedures Law of the People's Repu^blic of China* (vii) all acts, conditions and Jhings required to be done, fulfilled and performed in order (a) to enable it lawfully to enter inso, exercise its rights under and perform and comply with the obligations expressed to be assumed by it in this Agreement, (b) to ensure that the obligations expressed to be assumed by it in this Agreement are legal, valid and binding and (c) to make this Agreement admissible in evidenze in Chin have (subject to the completion of the matters referred to in paragraph I of the Third Schedule) been done, fulfilled and performed; (viii) except for the completion of the matters referred to in paragraph I of the Third Schedule. under the laws of China in force at the date hereof, it is not necessary, for the fulfilment by the objectives referred to in paragraph (vii) hereof, that this Agreement be filed, recorded or enrolled with any court or other authority in China -22- or that any stamp. registration or similar tax be paid on or in relation to this Agreement: and (ix) the obligations expressed to be assumed by it in this Agreement are legal and valid cbligations binding on it in accordance with the terms hereof- 17.2 The Borrower further represents to the Finance Parties that: (i) it is not in breach of or in default under any agreement to which it is a party or which is binding on it or any of its assets to an extent or in a manner which might have a material adverse effect on its financial condition- (ii) no acawn nr timinicwniv nmrPMina of or before any court or agency which might have a material adverse effect on the Borrower's financial condition has been started or, to the best of its knowledge information and belief, threatened; (iii) all of the written information supplied by it to the Finance Parties in connection herewith is true, complete and accurate in all material respects and it is not aware of any material facts or ces that have not been disclosed to the Finance Parties and which would, if disclosed, reasonably be epected to advesy affect the decision of a person considering whether or not to provide finance to the Bormower- (iv) the Borrower is not in breach of its obligations under Clause 19.2 or 19.3; (v) the execution of this Agreemear and its eercise of its rights and performance of its obligations herenader will not oblige it to take any action which would result in a breach of Clauses 19.2 or 19.3; (vi) the execution of this Agreement and is exercise of its rights and performance of its obligations hereunder do not and will not- (a) conflict with any agreement. mortgage, bond or other instrument or treaty to which it is a party or which is binding upon it or (b) conflict with any applicable law, regulation or official or judicial order; (vii) it is a memter and eligible to use the resources of the Intrnational Monetary Fund- and (viii) the Borrower is the benefacial owner of the gold and foreign exchange reserves of China and the Central Bank acts as the central bank and monetary authority of China and is empowered to hold and manage such reserves on behalf of the Borrower. 17.3 The representations set out in Clause 17.1 and 17.2: (i) are made on the date of this Agreement; and (ii) are deemed to be repared by the Borrower on the date of each Notice of Drawdown with reference to the facts and circumstances then existing. 18. Financial Information 18.1 The Borrower covenants with the Finance Parties that, as soon as the same becomes available but in any event within 270 days after the end of each of its fiscal years, the Borrower shall deliver to the Agent (in the form in which such information is made generally available to the public or, if not otherwise made generally available to the public, in a reasonably undersemdable form) and in sufficient copies for each Bank: (i) a statement of the external indebtedness of the Borrower and its agencies at the end of such fiscal year, identifying any loans or guarantees taken into account in such statement and stating in respect Pf each such loan its source, amount and repayment schedule, (ii) statements (on both the cur. : and capital account bases) of the balance of payments surplus or deficit of the Borrower in respect of such fiscal year; (iii) a statement of the amounrt of the gold and foreign currency reserves of China as at dhe end of such fiscal year- and (iv) a statement of the stae budget in respect of such fiscal year. 18.2 The Borrower covenants with the Finance Parties that it shall, upon request by the Agent at the direction of an Instructing Group, make available to the Agent iufRmdation concerning the implementation of the Project. 18.3 The Borrower covenants with the Finance Parties that it shall from time to time deliver to the Agent such other publicly available financial, statistical and general infomkation about the Borrower as the Agent or a Bank may reasonably request, such information to be delivered as soon as possible but in any event within 90 days of a request therefor. 18.4 The Borrower covenants with the Finance Parties that the Borrower shall deliver to the Agent a reasonably detailed sumnary of any arrangent involving a loan or other extension of credit (including, but without limitation, any standby arrangement) entered int between the Borrower and the International Monetary Fund, such summary to be delivered as soon as is reasonably possible but in any event within 90 days after entering into the same. Any such summary as reftered to herein shall contain details of the amount and tenor of the arrangm, the intrest rate applicable thereto (if any), the terms of repayment thereof and the purposes to which it is to be applied. 18-5 At the same time as it delivers the documents required to be provided pursuant to Clause 18.1. the Borrower shall also deliver to the Agent a certificate (in form and substance reasonably- satisfactory to the Agent) confirming that, as at the date thereof, none of the events or circumstances referred to in Clauses 17.2(i) and (ii) have occurred and are continuing (or, if they are, providing therein a reasonably detailed explanation thereof and the step(s), if any, that are being taken to rectify or odterwise deal with the same). The Agent shall, during the fast 180 days of each of the -24- Borrower's fiscal years, deliver a notice to the Borrower advising it that it is required to comply with dhe foregoing provisions of this Clause 18.5. 19. Covenants 19.1 The Borrower covenants with the Finance Parties that =til the Banks cease to have any Available Commitment under this Agreement and until the indebtedness of the Borrower under or pursuant to this Agreement has been paid, prepaid and/or repaid in full, it shall: (i) obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws and regulations of China to enable it lawfully to enter into and perform its obligations under this Agreement or to ensure the legality, validity, enforceability or admissibility in evidence in t.nma or uns Agreemx (ii) after the delivery of any Notice of Drawdown and before the proposed making of the Advance requested therein, notify the Agent of the occurrence of any event which results in or may reasonably be expected to result in any of the representations contained in Clause 17 being untrue at or before the time of the proposed making of such Advance; and (iii) prompdy inform the Agent of the occurrence of any Event of Default or Potential Event of Default and, upon receipt of a written request to that effect from the Agent, confimn to the Agent that, save as previously notified to the Agent or as notified in such confirmation, no Event of Default or Pbtential Event of Defauilt has occurred. 19.2 The Borrower covenants with the Finance Parties that until the Banks cease to have any Available Commitment under this Agreement and until the indebtedness of the Borrower under or pursuant to this Agreement has been paid, prepaid andlor repaid in full, the indetedness of the Borrower to the Finance Parties under or pursuant to this Agreement will constian the direct, unconditional, geneal and unsecured obligations of the Borrower, and such indebtedness will rank pari passu with all general and unsecured obligations of the Borrower for money borrowed and guarantees given by the Borrower in respect of money borrowed by others. The full faith and credit of the Borrower will be pledged for the due and punctual payment of such idbdnsand for the due and timely performance of all obligations of the Borrower with respect therto. 19.3 The Borrower covenants with the Finance Parties that until the Banks cease to have any Available Commitment under this Agreement and until the indebtedness of the Borrower under or pursuant to this Agreement has been paid, prepaid and/or repaid in full, the Borrower will not gram or permit to be outstanding any encumbrance on any or all of (i) its present or fme assets or revenues or (ii) the present or fture gold and other reserves of the People's Republic of China (which expression includes the gold and other reserves of the People's Republic of China by whomsoever and in whatever form owned or held, provided that such gold and other reserves are publicly held out by the Government of China as the official reserves thereof) in either case to secure any External Indebtedness, unless the Borrower shall, if not before or at the same time, then promptly thereafter (and in any case within not more than 90 days after notice by the Agent that such sec*rity is required by the terms of this Agreement), procure that all amounts payable under this Agreement are secured equally and rateably. or provide such other security or other arrangement as shall be approved, by -25-- the Banks. Notwithstumding the above, the Borrower may grant or permit to be outstanding any eacumbirance securing External Indebtedness incurred or assumed by the Borrower solely to finance or refinance the acquisition or construction of the property over which such encumbrance has been cieated or permitted to subsist; Provided Always that such encumbrance does not extend to any other property of the Borrower (in the case of construction, however, the encumbrance may extend to unimproved real property for the construction and to any trust account into which the proceeds of the offering creating such External Indebtedness may be temporarily deposited pending use in connection with such construction). 20. Events of Default 20.1 If: . (i) the Borrower fails to pay any sum due fromn it hereunder, in respect of principal, wterest or those amounts as referred to in Clause 32, at the time, in the currency and in the manner specified herein and such failure is not remedied in full within 5 business days of that due date (or. if such failure to pay relates to interest or those amounts as referred to in Clause 32, such faiure is not remedied in full within 7 business days of that due date); or (ii) any representation or statement made or to be made by the Borrower in this Agreement or in any notice or other document, certificate or statement delivered by it pursuant hereto or in connection herewith is or proves to have bean materially incorrect or materially misleading when so made- (iii) the Borrower fails to perform or is in violation of any other provision of this Agreement (other than a failure retrred to elsewhere in this Clause 20.1) and such failure or violation is not remediable or, if remediable, continues unremedied for a period of 30 days from the date the Agent gives notice to the Borrower wit; respect thereto; (iv) the Borrower shall have failed to pay any amount due to IBRD, whether in respect of principal, interest, fees, charges or otherwise and whether by scheduled maturity, by required prepayment, by acceleration, by demand or otherwise under the IBRD Loan Agreement or under any other agreemt with IBRD to which the Borrower is a party; Provided Always that: (a) the failure to pay such amount shall hve coninued for a period of not less than 45 consecutive days and shall be contiiing and (b) the aggregate of the amounts due and payable ider such agreements shall exceed $60,000,000.00 (or the equivalent thereat); (v) any External Indebtedness (other than External Indebtedness owed to IBRD) in any one case or in aggregate in excess of $25,000,000.00 (or the equivalent hereof) (a) is declared to be due and payable, prior to the stated maturity thereof, as a result of any event of default (howsoever described) under the loan, credit or other documentation relating thereto or (b) after the Wpiry of any applicable grace period - 26 - in the loan, credit or other reltirg thero. is capable of being declared to be due and payable, prior to the stated maturity thereof as a result of any event of default (howsoever described) in the loan, credit or other documentation relating thereto or (c) is not paid when due and within any applicable grace period in the loan, credit or other documentation relating thereto (and if the loan, credit or other documentation relating thereto does not have any applicable grace period, then for the purposes of this sub-paragraph (c) the grace periods referred to in paragraph (i) of this Clause 20.1 shall be deemed to apply mutatis mutandis); (vi) the Borrower or any competent authority thereof declares a moratorium on the payment of all or any substantial part of the External Indebredness (or any general class of such External Indebtedness) or the Borrower ceases to be a member of the Interntional Monetary Fund or the lnternarikmal Rank for Recnom erion PvlInnent or the Borrower becomes ineligible to utilise resources of the Internatioal Monetary Fund under the articles of agreement of the International Monetary Fund, (vii) the Borrower commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of all or any substantial part of the External Indebtedness (or any general class of such External Indebtedness); or (viii) the Borrower ceases to be the beneficial owner of the gold and foreign exchange reserves of China and/or the Central Bank ceases to be empowered to hold and to manage such reserves on behalf of the Borrower Provided Always that, without prejudice to the provisions of Clause 19.3, no Event of Default shall arise, in respect of the provisions of this sub-paragraph (viii), by virtue of the right of the Central Bank to deal in. trade or otherwise dispose of the gold and foreign exchange reserves of China in the ordinary course of its operations; (ix) the Borrower repudiates this Agreement or does or causes to be done any act or thing evidencing an intention to repudiate this Agreement (x) at any time any act, condition or thing required to be done, fulfilled or performed in order (a) to enable the Borrower lawfully to enter inzo, exercise its rights under and perform the obligations expressed to be assumed by it in this Agreement (b) to ensre that the obligations expressed to be assumed by tLe Borrower in this Agreement are legal, valid and binding or (c) to make this Agreement admissible in evidence in China is not done, fulfilled or performed (and, if it is possible to subsequenly perform or otherwise remedy or effect such act, condition or thing as aforesaid without the Finance Parties thereby suffering any adverse effect or consequence under or pursuant to this Agreement, such act, condition or thing is not performed, remedied or effected within 30 days from the date that it should have been originally done, fulfilled or performed); or (xi) at any time it is or becomes unlawful for the Borrower to perform or comply with any or all of its obligations under this Agreement or any of the obligations of the Borrower under this Agreement are not or cease to be legal, valid and binding, -27- the, and in any such case and at any time thereafter the Agent may (and. if so insrued by an Instructing Group, shall) by wrin notice to the Borrower- (a) declare the Advances to be immediately due and payable (whereupon the same shall become so payable together with accrued interest thereon and any other sums then owed by the Borrower hereunder) or declare the Advances to be due and payable on demand of the Agent; and/or (b) declare that any undrawn portion of the Facility shall be cancelled, whereupon the same shall be cancelled and the Available Commitment of each Bank shall be reduced * to zero. 20.2 If. nursuant to Claise ?o 1 the Agent declares the Advances to be due and payable on demand of the Agent, then, and at any time thereafter, the Agent may (and, if so instructed by an Insmtrucix Group, shall) by writen notice to the Borrower: (i) call for repayment of the Advances on such date as it may specify in such notice (whereupon the same shall become due and payable on such date together with accrued interest thereon and any other sums then owed by the Borrower hereunder) or withdraw its declaration with effect from such date as it may specify in such notice; and/or (ii) select as the duration of any Interest ?riod which begins whilst such declaration remains in effect a period of six months or less. part 9 IBRD 21. IBRD Guarantee 21.1 IBRD hereby guarantees, on the partial basis hereafter provided and otherwise subject to the provisions of this Clause 21, to the Agent and the Banks the payment by the Borrower of the Principal Monies and agrees to pay to the Agent from time to time, on demand by the Agent made in accordance with the provisions of Clause 21.3, all of the Principal Monies which are due and payable by the Borrower (wheiher at stated maturity, acceleration or otherwise) to the Banks and which have not been paid at the time such demand is made; Provided Always that: (i) the Agent may not make any such demand until after the Guarantee Call Date; and (ii) the maximum aggregate amount of the Principal Monies that IBRD shall have liability for hereunder shall not, in any cicumstances, exceed the IBRD Guaranteed Amount. 21.2 The Agent will notify IBRD of any failure by the Borrower to pay any Principal Monies that have fallen due and payable not later than ten business days after such failure to pay, and such notice shall specify the amount of the Principal Monies that the Borrower has failed to pay; Provided Always that failure to give such notice within the specified period of time shall not affect IBRD's liability under or pursuant to this Part 9 with respect to such unpaid amount of the Principal Monies or otherwise render the Agent liable to IBRD or to any other Finance Party. It is understood that any such notice in accordance with this Clause 21.2 is for information purposes only and shall not constitute a demand upon IBRD for payment, which demand shall be made in accordance with Clause 24.3. 21-3 IBRD shall not be required to make any payment under this Clause 21 until a wrmen demand for payment has been made on IBRD by the Agent as provided below; namely: (i) if the Borrower has failed to make any payment of Principal Monies that fall due and payable by the Borrower (whether at stated maturity, acceleration or otherwise) before the Guarantee Call Date and such Principal Monies remain unpaid (in whole or in part) after the Guarantee Call Date, then at any time after the Guarantee Call Date the Agent may (subject to the limitation set forth in Clause 21.1(i)) make a demand on IBRD for payment by IBRD, under this Clause 21, of such of those Principal Monies as remain unpaid as at the date of the Agent's demand- Provided Always that the Agent may not make any such demand after the date which is 30 days from and inclusive of the Guarantee Call Date; and (ii) if the Borrower has failed to make any payment of the Principal Monies that fall due and payable by the Borrower (whether at stated maturity acceleration or otherwise) on or after the Guarantee Call Date, then the Agent may (subject to the limitation set forth in Clause 21. 1(ii)) make a demand on IBRD for payment by IBRD, under this Clause 21, of such of those Principal Monies as remains unpaid as of the date of the Agent's demand; Provided Always that the Agent may not make any such demand until on or after the date which is 10 days from and inclusive of the date that those Principal Monies fell due and payable as aforesaid, -29 - Provided Always that (a) in the case of a demand pursuant to paragraph (i) hereof, IBRD shall have 30 days from and inclusive of its receipt of such demand in order to make payment in respect thereof and (b) in the case of a demand pursuant to paragraph (ii) hereof, IBRD shall have 20 days from and inclusive of its receipt of such demand in order to make payment in respect thereof (and, in either case, IBRD shall not be in breach of its obligations under the IBRD Guarantee until such period of 30 or, as the case may be, 20 days has elapsed without the required payment having been made). 21.4 Subject to the limitations set forth in Clauses 21.1(i) and (ii) and 21.3. the Agent may make one or more demands <. .3RD pursuant to this Clause 21. The obligations of IBRD constituted by or pursuant to this Clause 21 constitute a guarantee of payment and not of collection. IBRD hereby irrevocably and unconditionally waives any requirement that any Finance Party protect, secure, perfect or insure any encumbrance or any property subject thereto or exhaust any right or remedy or take any other acton of an naqp whatsoev.er apst the Borrower or any other person or entity or any collateral it may control or hold or have the benefit of (and whether before or at any time after the Guarantee Call Date): except for the requirement that a demand shall be made on IBRD by the Agent pursuant to Clause 21.3. 21.5 If, after the Agent has made a written demand to IBRD for payment pursuant to Clause 21.3 but before IBRD has made payment of the az,ount of the Principal Monies which have been so demanded by the Agent, the Borrower pays to the Agent and/or the Banks (or the Agent and/or the Banks recover otherwise than from IBRD) any sum which is applied to the satisfaction of the whole or any part of such Principal Monies, the Agent shall promptly notify IBRD of such fact and IB'RD's liability under this Clause 21 in respect of such demand shall be reduced by an amount equal to the portion of such Principal Monies so paid by the Borrower (or so recovered by the Agent and/or the Banks) and so applied. 21.6 Payments to the Agent by IBRD of amounts demanded by the Agent pursuant to Clause 21.3 shall discharge IBRD from its obligations to the Finance Parties to the extent of the amount so paid. IBRD shall not be obliged to make any payment under this Clause 21 directly to any Bank. but only to the Agent in accordance with this Agreement and IBRD shall have no obligation or liability whatsoever to the Banks in resct of the Agent's distribution of any such payments received by the Agent or to enquire as to the Agent's distribution thereof. 21.7 The obligations of IBRD constituted by or pursuant to this Clause 21 shall be in addition to and independent of every other security which the Finance Parties or any of them may at any time hold in respect of any of the Principal Monies or other obligations of the Borrower hereunder. 21.8 The obligations of IBRD constituted by or pursuant zo this Clause 21 shall constitute and ;e a continuing security notwithstanding any settlement of account or other matter or thing whatsoever. Subject to the provisions of Clauses 21.5, 21.6 and 21.13, the obligations of IBRD constituted by or pursuant to this Clause 21 shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the obligations of the Borrower under this Agreement. 21.9 Neither the obligations of IBRD constituted by or pursuant to this Clatse 21 nor the rights, powers and remedies conferred upon the Agent and the Banks in respect of IBRD by this Agreement or by applicaL.e law or regulation shall be discharged, impaired or otherwise affected by: (i) any bankrupcy. insolvency reorganisanon, adjusanent, composition or similar circumstances of or relating to the Borrower; (ii) any of the obligations of the Borrower or any other persQn hereunder or under any other security taken in respect of any of its obligations hereunder being or becoming illegal, invalid, unenforceable, void, voidable or ineffective in any respect; (iii) subject to the proviso hereto, time or other indulgence being granted or agreed to be granted to the Borrower in respect of its obligations hereunder or under any such other security; (iv) subject to the proviso hereto, any amendment to, or any variation, waiver or release of, any obligation of the Borrower hereunder or inder any such other security; (v) any failure to take, or fully to take, any security conemplated hereby or otherwise agreed to be taken in respect of the Borrower's obligations hereunder; (vi) any failure to realise or fully to realise the value of, or any release, discharge, exchange or substitution of. any security taken in respect of the Borrower's obligations hereunder; or (vii) any other act, event or omission which, but for this Clause 21.9, might operate to discharge, impair or othervise affect any of the obligations of IBRD herein contained or any of the rights, powers or remedies conferred upon the Finance Parties or any of them by this Agreement or by applicable law or regulation, and any monies that may not be recoverable from IBRD on the basis of a guarantee by reason of any or all of the foregoing events or circumstances shall nevertheless be recoverable from IBRD, in its capacity as partial guarantor, but also as sole or principal obligor. Nwit t regoig provisions of this Clause 21.9. the IBRD Guarantee shall terminate and any wrian demand from the Agent pursuant to Clause 21.3 shall be void if any amendment in writing is made to this Agreement, or any waiver or consent is given in writing with respect thereto, without IBRD's prior wriue consent. 21.10 The obligations of IBRD constituted by or pursuant to this Clause 21 shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Principal Monies by the Borrower is rescinded or must otherwise be returned by the Agent and/or the Banks for any reason, all as though such payment had not been made. 21.11 As between the Agent, the Banks and IBRD, the Agent's certificate of the amount of the Principal Monies that are due and payable (but unpaid) at any time hersunder shall be conclusive and binding for all purposes in the absence of fraud or manifest error. 21.12 IBRD agrees that whenever it makes any payment under or pursuant to this Clause 21 it will notify the Agent in writing that such payment is being so made. All payments to be made by IBRD under or pursuant to this Clause 21 shall be made in dollars and in the funds and to the account required by the provisions of Clause 29.1 for the account of each Bank for which demand for payment under or pursuant to this Clause 21.3 has been made. The Agent shall acknowledge receipt - 31 - of each such payment from IBRD and confirm to IBRD that, subject to the provisions of Clause 21.10, the indebtedness of IBRD under or pursuant to this Clause 21 has been reduced by the amount of such payment. Upon receio of any payment from IBRD bereunder, the Agent shall distribute such payment in accordance with the provisions of Clause 28.4. 21.13 Without prejudice to the provisions of Clause 21.10, the obligations of IBRD constituted by or pursuant to this Clause 21 shall remain in full force and effect until the earliest of (i) cancellation of the Available Facility (if any) together with any prepayment and/or repayment in full of all of the Principal Monies and (ii) until 5.00 p.m. on the date which is 30 business days from and inclusive of the final Repayment Date; Provided Always that if a demand has been made on IBRD by the Agent pursuant to Clause 21.3 prior to such date, the obligations of IBRD constituted by or pursuant to this Clause 21 shall remain in effect, but only to the extent of the amount so demanded. 21.14 The obligations 4%, sw - ---e"'sr w '!!:*se 21! be binding upon [BRD and inure to the benefit of the Agent and the Banks and shall be enforceable only by the Agent; Provided Always that the obligations of IBRD constituted by or pursuant to this Clause 21 shall not be treated as a separate obligation of IBRD independent from the Principal Monies and the benefit of such obligations may only be assigned or transferred by a Bank in accordance with the provisions of Clause 37. 21.15 Upon payment by IBRD of any amount ender this 'Zause 21, IBRD shall be immeditely entitled to recover from the Borrower the amount so paid by IBRD in respect of Principal Monies (but not further or otherwise) and for this purpose IBRD shall be immediately subrogated to the rights of each Bank receiving any part of such payment in respect of Principal Monies to the extent of the amount in respect of Principal Monies so received by it, regardless of whether such Bank has been fully prepaid or repaid by the Borrower, and each Bank shall forthwith assign or transfer to [BRD, without representation, warranty or recourse, all of such Bank's claims, interests, rights and security which it then has against the Borrower under this Agreement in relation to the amount in respect of Principal Monies so received. For the avoidance of doubt, upon any subrogation as contemplated in this Clause 21.15, ILRD shall be treated as a Bank having a subrogated imerest in repayment instalmets in respect of the portion of the Loan to which an amount recovered under the [BRD Guarantee shall have been applied pursuant hereto and shall be entitled to all rights to receive amounts from the Agent to the extent of its subrogated interest. 21.16 Nothing in this Agreement shall prejudice the exercise by [BRD of its rights under or pursuant to the Indemnity Agreement or any other agreement between [BRD and the Borrower or give the Finance Parties any rights (by way of subrogation or otherwise) in respect of IBRD's rights under the Indemnity Agreement or any other such agreement, and IBRD shall be entitled to exercise such rights as it may have against the Borrower as and when and in such manner as it sees fit and without any obligation to accout to the Finance Parties for any monies or other proceeds so realised. 22. Role of IBRD 22.1 The Finance Parties hereby acknowledge and agree that IBRD is acting hereunder solely in the capacity as the partial guarantor of the Principal Monies as prwided in this Agrwement and in no other capacity. The obigations of [BRD under this Agreement are not the obligations of any government (but without prejudice to the obligations of the Borrower hereunder). IBRD shall incur no liability hereunder nor have any other duties or responsibilities, excmt to the extent expressly - 32 - specified in this Agreement or in any document delivered by IBRD under or pursuant to this Agreemet. Without limitation to the generality of the foregoing, e=cept as otherwise provided for herein, IBRD makes no representations. express or implied, with respect to, nor shall IBRD be responsible to any of the other parties hereto for: (i) the execution, effectiveness, genuineness, validity, enforceability or sufficiency of this Agreement, the IBRD Loan Agreement or of any documents connected herewith or therewith by any party other than IBRD or for the collectibility of any part or all of the Principal Monies; (ii) any representarions or warranties, recitals or statements contained herein or made in any written or oral statement or in any financial or other statements, instruments or any other documents connected with this Agreement or with the IBRD Loan Agreement (including, but without limitation, any information referred to in Clause 22.2), furnished or made by the Borroer or the Agent to any of the Finance Parties or by IBRD to the Agent or any of the Finance Parties save as provided in Clause 23; Provided Always that IBRD shall be responsible for the representation, warranties and statements of IBRD contained in Clause 25; (iii) ascertaining or inqurg as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in this Agreement or in the IBRD Loan Agreement or as to the application of the proceeds of the Advances or as to the progress of the Project; (iv) any failure or delay in performance, or any breach, of any of the obligations of any of the odier parties hereto, or (v) any covenants given solely to or for the benefit of IBRD in this Agreement or any Related Document, Provided Always nothing in this Clause 22.1 shall be deemed to limit IBRD's obligations under or pursuant to the provisions of Clause 21 or impair the Agent's and the Banks' rights thereunder. 22.2 IBRD in its capacity as the lender under the IBRD Loan Agreement shall promptly notify the Agent of (i) the suspension pursuant to Clause 6.02 of the General Condiions Applicable to Loan and a Guarantee Agreements of the right of the Borrower to witlhaw funds from the Loan Account (as defined in the said General Conditions) under the IBRD Loan Agreement (ii) any payment default under the IBRD Loan Agreement which exists for 45 days without being cured and (iii) any acceleration of manrity under the IBRD Loan Agreement. 22.3 IEBRD shall have no duty or obligation to any Finance Party to ascertain or inquire or inform it as to the occurrence of any Event of Default or any event or condition which, with de giving I notice or the lapse of time or both, or upon a determination, wld constiute an Event of Default, and IBRD and its respective afiliates may communicate in writing or orally with the Borrower, any other party to this Agreement or any other person about the occurrence of any such Event of Default, event or condition or about any other matter whatsoever arising in the administration, coordination and performance of this Agreement, all without communicating with any Finance Party about any such matter. - 33 - 23. IBRD's Liability on Disclosure IBRD shall incur no liability or obligation with respect to any information disclosed by IBRD to any Finance Ibrty, except in the case of IBRD's gross negligence or wilful misconduct. 24. Par Ihssu IBRD agrees that, so long as its obligations constioned by or pursuant to Clause 21 continue in effect, its obligations constituted by or pursuant to Clause 21 will constitue direct and unsecured obligations of IBRD ranking pari passu with all of its other present or future obligations which are . unsecured and which are unsubordinated- 25. Representations of IBRD [BRD represents to the Finance Parties that as of the date hereof: (i) [BRD has the power, authority and legal right to execute and deliver this Agreement and to comply with the provisions hereof; (ii) this Agreement constitutes the legal, valid and binding obligation of IBRD in accordance with its terms (insofar as the terms of this Agreement apply to IBRD), and the obligations of IBRD hereunder rank pari pas with all other obligations of IBRD which are unsecured and which are unsubordinated- (iii) all authorisations (including, without liaitation, any internal consents of IBRD) required of IBRD in connection with the execution and delivery of this Agreement and the performance by IBRD of its obligations hereunder have been obtained and are in full force and effect and such execution, delivery and performance do not and will not (a) require any further authorisation under present laws or (b) violate any provision of IBRD's Articles of Agreamem or By-Laws or any law or of any order, judgment, injunction, decree, resolution, determination, or award of any court or arbitrator or any judicial, administrative or governmental authority or orgamsanon, in each case presently in effect having applicability to IBRD; and (iv) under Section 9 of Article VII of the Articles of Agreement no taxation of any kind shall be levied on any obligation or security guaranteed by IBRD (including any dividend or interest thereon) by whomsoever held: (a) which discriminates against such obligation or security solely because it is guaranteed by IBRD; or (b) if the sole jurisdictional basis for such taxation is the location of any ofice or place of business maintained by IBRD. 26. Jurisdiction 26.1 Each of the Finance Parties and IBRD irrevocably agrees for the benefit of the Finance Parties that the courts of England shall have non-ex:IsiNe jurisdiction to hear and determine any suit, action or proceeding. and to settle any disputes, which may arise out of or in connection with this Agreement, and, for such purposes, irrevocably submits to tie non-elsive jurisdiction of such courts. 26.2 IBRD hereby irrevocably agrees that service of process in England shall be validly completed after delivery thereof to the office of IBRD in London (currently at New Zealand House, 15th Floor, Haymarket, London SWI Y4TE, England). In the case of IBRD no longer maintaining an office in London whilst the IBRD Guarantee is in effect, IBRD agrees to appou forthwith another process agem for these purposes. Part 10 DEFAULT INTEREST AND INDEMNITY 27. Default Interest and Indemnity 27.1 If any sum due and payable by the Borrower to the Finance Parties hereunder is not paid on the due dare therefor in accordance with the provisions -f Clause 29 or if any sum due and payable by the Borrower under any judgment of any court in connection herewith is not paid on the date of such judgment, the period beginning on such due date or, as the case may be, the date of such judgment and ending on the date upon which the obligation of the Borrower to pay such sum (the balance thereof for the time being unpaid being herein referred to as an "unpaid sum") is discharged shall be divided into successive periods, each of which (other than the first) shall start on the last day of the preceding such period and the duration of - -f h (q:-- a. a i in this Clause 27) be selected by the Agent. 27.2 During each such period relating thereto as is mentioned in Clause 27.1 an unpaid sum shall bear interest at the rare per annum which is the sum from time to time of one per cent., the Margin and LIBOR on the Quotation Date therefor; Provided Always that: (it if, for any such period, LIBOR cannot be determined or is not applicable to the currency in question, the rate of interest applicable to such unpaid sum shall be the sum from time to time of one per cent., the Margin and the rate per annum determined by the Agent to be the arithmetic mean (rounded upwards, if ot already such a multiple, to the nearest whole multiple of one-sixteenth of one per cent.) of the rates notified by each Reference Bank to the Agent before the last day of such period to be those which express as a percentage raze per annum the cost to it of funding from whatever source it may select its portion of such unpaid sum for such period; and (ii) if such unpaid sum is all or part of an Advauce which became due and payable on a day other than the last day of an Interest Period relating thereto, the first such period applicable thereto shall be of a duration equal to tbc unexpired portion of that Interest Period and the rate of imerest applicable thereto from time to rime during such period shall be that which exceeds by one per cent. the rate which would have been applicable to it had it not so fallen due. 27.3 Any interest which shall have accrued under Clause 27.2 in respect of an unpaid sum shall be due and payable a:d shall be paid by the Borrower at the end of the period by reference to which it is calculated or on such other date or dates as the Agent may specify by written notice to the Borrower. 27.4 If any Bank or the Agent on its behalf receives or recovers all or any part of such Bank's share of an Advance otherwise than on the last day of an Interest Period relating to that Advance, the Borrower shall pay to the Agent on demand for account of such Bank an amount equal to the amount (if any) by which (i) the additional interest which would have been payable on the amount so received or recovered had it been received or recovered on the last day of that Interest Period exceeds (ii) the amount of intrest which in the opinion of the Agent would have been payable to the Agent on the last day of that Interest Period in respect of a deposit in the currency of the amount so received or recovered equal to the amount so received or recovered placed by it with a prime bank in London for a period starting on the third business day following the date of such receipt or recovery and ending on the last day of that Interest Period. 27-5 The Borrower undertakes to indemnify: (0) each of the Finance Parties against any cost, expense (including legal fees) or liability together with any value added or similar tax thereon, which any of them may sustain or incur as a consequence of the occurrence of any Event of Default or any default by the Borrower in the performance of any of the obligations expressed to be assumed by it in this Agreement; and (ii) each Bank against any cost, expense or liability it may suffer as a result of its funding its portion of an Advance requested by the Borrower hereunder but not mad- by reason of the operation of any one or more of the provisions hereof. 27.6 Any unpaid sum shall (for the purposes of this Clause 27 and Clause 15.1) be treated as an advance and accordingly in this Clause 27 the term "Advance" includes any unpaid sum and the term "Interest 1eriod", in relation to an unpaid stum, includes each such period relating thereto as is mentioned in Clause 27.1. "I te e t e io % n reaio o n n ai an in lde ut s ch peid e tig37-eo as i Part 1 PAYMENIS 28. Currency of Account and Payment 28.1 The dollar is the currency of account and payment for each and every sum at any time due from the Borrower hereunder: Provided Always that: (i) each payment in respect of costs and expenses shall be made in the currency in which the same were incurred' (ii) each payment pursuant to Clause 13.2 or Clause 15shanl NO mwio * specified by the party claiming thereunder; and (iii) any amount expressed to be payable in a currency other than dollars shall be paid in that other currency 28.2 If any sum due from the Borrower under this Agreemem or any order or judgment given or made in relation hereto has to be converted from the currency (the first currency") in which the same is payable hereunder or under such order or judgment into another currency (the "second t currency") for the purpose of (i) making or filing a claim or proof against the Borrower, (ii) obtaining an order or judgment in any court or other tribunal or (iii) enforcing any order or judgment given or made in relation hereto, the Borrower shall indemify and hold harmless each of the persons to whom such sum is due from and against any loss suffered as a resuk of any discrepancy between (a) the rate of exchange used for such purpose to convert the sum in question from the first currency into the second currency and (b) the rate or rates of exchange at which such person may in the ordinary course of business purchase the first currency with the second currency upon receipt of a sum paid to it in satisfaction, in whole or in part, of any such order, judgment, claim or proof. In the event that, by virme of the operation of the foregoing provisions of this Clause a Bank makes a profit upon any such conversion, such Bank shall (to the extent it can do so without prejudice to the retention of such profit and after taking into account any actual or potential assessment or charge to taxation which it will suffer in relation to such profit) pay, to the Borrower, as soon as is reasonably possible in the circumstances, the amount of such profit less any such assessment or charge to taxation as aforesaid. 28.3 Subject as hereinafter provided, any sum which is received by the Agent under, pursuant to or in connection with this Agreement (excluding, for this purpose, from IBRD under or pursuant to Clause 21) shall, despite any contrary appropriation by the Borrower or any other person a party hereto. be applied by the Finance Parties as follows: (i) firstly, in or towards payment of any sum then due and payable to the Agent (in its capacity as such) under or pursuant to this Agreement; (ii) secondly, in or towards payment of any sum then due and payable to the Finance Parties under or pursuant to Clause 32; (iii) thirdly, in or towards payment of any sum then due and payable to the Finance Parties under or pursuant to Clause 33; * le (iv) fourthly, in or towards payment of any sum then due and payable to the Finance Parties under or pursuant to Clauses 27.4 and 27.5; (v) fifthly, in or towards payment of any interest then due and payable to the Finance Parties under or pursuant to Clauses 27.1. 27.2 and 27.3; (vi) sixthly, in or towards payment of any interest then due and payable to the Banks under or pursuant to Clauses 7, 8, 9 and 10; (vii) seventhly, in or towards payment of any Principal Monies then due and payable to Ihe Banks under or pursuant to this Agreement; (viii) eighthly, in or towards payment of any other sum then due and payable by the Borrower to the Finance Parties under any other provision of this Agreement; and (ix) as to tie balance (if any) in paymen to the Borrower or other person lawfully entitled tihero; Provided Always that where the amount said to be applied in or towards payam of the sums due under any of such categories is insufficiert to pay such sums in full, such amount shall be applied in payment 2.nd to the persons with an interest in that category pro rata to their respective interests in the total amount in such category which is due and payable. 28.4 Any sum which is received by the Agent from [BRD under or pursuant to Clause 21 shall be applied by the Agent and the Banks in or towards payment of the Principal Monies which were the subject of the Agent's demand, pursuant to Clause 21.3, that gave rise to such payment by IBRD; Provied Always that- (i) where the amount paid by IBRD as a result of such demand is less Jian the Principal Monies then outstanding, then the amount so paid by IBRD shall be applied by the Agent in payment to the Banks with an in.rest therein pro rata to their respective interests and (ii) if, after the Guarantee Call Date, the Borrower pays (or the Agent and/or the Banks recover) any amount (that is to be applied in accordance with the provisions of Clause 28.3(vii) to IBRD as subrogee, assignee or transferee of a Bank as contemplated by Clause 21.15), then such amount shall be paid by the recipient thereof (namely the Agent or, as the case may be, the Bank in question) to IBRD as soon it is reasonably possible to do so. 29. Payments 29.1 On each date on which this Agreement requires an amount to be paid by the Borrower, IBRD or, as the case may be. any of the Banks hereunder, the Borrower, IBRD or, as the case may be, such Bank shall make the same available to the Agent: (i) where such amount is den-oxinated in dollars, by payment inlollars and in same day funds (or in such other funds as may for the time being be customary in New York City for the settlernent in New York City of international banking transactions in dollars) to the Agemi's account via CHIPS ID No. 085 339 aor thc a.cont of Dresdner (South East Asia) Limited, Singapore with Dresdner Bank AG at 75 Wall Street. New York. N.Y.10005-2889. U.S.A. (or such other account or bank as the Agent may have specified for this purpose): or (ii) where such amount is denominated in any other currency, by payment in such currency and in immediately available, freely transferable, cleared funds to such account with such bank in the principal financial centre of the country of such currency as the Agent shall have specified for this purpose. 29.2 If, at any time, it shall become impracticable (by reason of any action of any governmental authority or any change in law, exchange control regulations or any %zimila V=M) au e &omwfuw#r or, as the case may be, IBRD to make any payments hereunder in the ma3mer specified in Clause 29.1, then the Borrower or, as the case may be, IBRD may agree with each or any of the Banks alternative a for the payment direct to such Bank of amounts due to such Bank hereunder-, Provided Always that, in the absence of any such agreement with any Bank, the Borrower or, as the case may be, IBRD shall be obliged to make all payments due to such Bank in the manner specified herein. Upon reaching such agreement the Borrower or, as the case may be, IBRD and such Bank shall immediately notify the Agent thereof and shall thereafter promptly notify the Agent of all payments made direct to such Bank. 29.3 Save as otherwise provided herein each payment received by the Agent for the account of another person pursuant to Clause 29-1 shall be made available by the Agent to such other person (in the case of a Bank, for the account of its Facility Office) for value the same day by transfer to such account of such person with such bank in the principal financial centre of the country of the currency of such payment as such person shall have previously notified to the Agent. 29.4 All payments required to be made by the Borrower hereunder shall be calculated without reference to any set-off or counterclaim and shall be made free and clear of and without any deduction for or on account of any set-off or counterclaim. 29.5 Where a sum is to be paid hereunder to the Agent for account of another person, the Agent shall not be obliged to make the same available to that other person or to cre': into or perform any exchange contract in connection therewith until it has been able to establish to its satisfaction that it has actually received such sum, but if it does so and it proves to be the case that it had not actually received such sum, then the person to whom such sum or the proceeds of such exchange contract was so made zvai!able shall on request refund the same to the Agent together with an amount suffluent to indemni-fy the Agent against any cost or loss it may have suffered or incurred by reason of its having paid out such sum or the proceeds of such exchange contract prior to its having received such sum. 30. Set-Off 30.1 The Borrower authorises each Bank to apply any credit balance to which the Borrower is entitled on any account of the Borrower with that Bank in satisfaction of any sum due and payable, in respect of principal, interest or as referred to in Clause 32, from the Borrower to such Bank hereunder but unpaid; for this purpose, each Bank is authorised to purchase with the moneys standing to the credit of any such account such other currencies as may be necessary to effect such application. No Bank shall be obliged to exercise any right given to it by this Clause 30. The foregoing provisions of this Clause 30 are without prejudice to any right of consolidation of accounts or set-off which may exist in fawur of a Bank by reason of the operation of applicable law- 30.2 Each Finance Party hereby waives and agrees to forego, to the full extent permitted by applicable law. any right of consolidation of accounts or set-off it may have in relation to IBRD and any credit balance on any account of IBRD with such Finance Party. 31. Redisribution of Payments 31.1 If, at any time, the proportion which any Bank (a "Recoering Bank") has received or * recovered (whether by payment, the exercise of a right of set-off or comb"ination of accounts or otherwise) in respect of its portion of any payment (a "relevant payment") to be made under this Agreement by the Borrower for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such ecess proportion being herein called an "excess amount") than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, thes (i) such Recovering Bank shall pay to the Agent an amount equal to such excess amount- (ii) there shall thereupon fall due from the Borrower to such Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Recovering Bank's portion of such relevant payment; and (iii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if such amount had been received by it from the Borrower in respect of such relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto. 31.2 If any sum (a "relevant sum") received or recovered by a Recovering Bank in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Bank, then: (i) each Bank which has received a share of such relevant sum by reason of the implementation of Clause 31.1 shali, upon request of the Agent, pay to the Agent for account of such Recovering Bank an amount equal to its share of such relevant sum; and (ii) there shall thereupon fall due from the Borrower to each such Bank an amount equal to the amount paid out by it pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank-s share of such relevant sum was applied. Part 12 FEES, COSIS AND EXPENSES 32. Fees 32.1 The Borrower shall pay to the Agent for account of each Bank a commitment conmission on the amount of such Bank's Available Comniinent from day to day during the period beginning on the date hereof and ending on the Termination Date, such commitment commission to be calculated at the rate of 0.20 per cent- per annum and payable in arrear on the last day of each successive period of six months which ends during such period and on the Termination Date. 32.2 The Borrower shall pay to Dresdner (South East Asia) Limited ("Dresdner") the fees specified in the lever of even dae herewith from Dresdner (South East Asia) Limited to the B at the times, and in the amounts, specified in such letter (such fees to be distributed by Dresdner to certain of the other Managers in the manner agreed between them for this purpose). 32.3 The Borrower shall pay to the Agent for its own account the agency fees specified in a letter of even date herewith from the Agent to the Borrower at the times, and in the amounts, specified in such letter. 33. Costs and Expenses 33.1 Subject to the limitation(s) set forth in a letter of even date herewith from the Arrangers to the Borrower, the Borrower shall, from time to time on demand of the Agent, reimburse the Agent and the Managers for all costs and expenses (including legal fees) together with any value added or . similar tax thereon incurred by it in connection with the negotiation, preparation and execution of this Agreement and the completion of the transactions herein contemplated. The Borrower shall make payment in respect of any demand (substantiated as hereinafter required) as soon as is reasonably possible for it to do so, but in any event within 30 days from the date of receipt thereof. Any such demand shall have enclosed therewith such reasonable documentary evidence as shall subsantiate the item(s) which are the subject thereof. 33.2 The Borrower shall, from time to time on demand of the Agent, reimburse the Finance Parties for all costs and expenses (including legal fees) together with any value added or similar tax thereon * incurred in or in connection with the preservation andlor enforcemen of any of the rights of the Finance Parties under this Agreement. The Borrower shall make payment in respect of any demand (substantiated as hereinafter required) as soon as is reasonably possible for it to do so, but in any event within 30 days from the date of receipt thereof. Any such demand shall have enclosed therewith such reasonable documentary evidence as shall substantiate the itta(s) which are the subject thereof. 33.3 The Borrower shall pay all Applicable Taxes and all other taxes levied or imposed by the laws of England, which in either case are in the nature of stamp, registration and documentary taxes, to which this Agreement or any judgment given in connection herewith is or at any time may be subject and shall, from time to time on demand of the Agent, indemnify the Finance Parties against any * liabilities, costs and expenses resulting from any failure to pay or any delay in paying any such Applicable Taxes or taxes. 33.4 If the Borrower fails to perform any of its obligations under this Clause 33, each Bank shall, in the proprrion borne by its share of the Loan (or, if no Advances have been made, its Available Commitment) to the amount of the Loan (or, if no Advances have been made, the Available Facility) for the time being (or. if the Loan has been prepaid or repaid in full, immediately prior to the final repayment thereof), indemnify each of the Agent and the Managers against any cost, claim. expense or liability incurred by any of them as a result of such failure and the Borrower shall forthwith reimburse each Bank for any payment made by it pursuant to this Clause 33.4. Part 13 AGENCY PROVISIONS 34. The Agent, the Managers and the Banks 34.1 Each Manager and each Bank hereby appoints the Agent to act as its agent in connection herewith and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent by the terms hereof together with all such rights, powers, authorities and discretions as are reasonably incidental thereto. 34.2 The Agent may: (i) assume that: (a) any representation or warranty made by the Borrower or IBRD in connection herewith is true; (b) no Event of Default or Potential. Event of Default has occurred; (c) neither the Borrower nor IBRD is not in breach of or default under its obligations hereunder, and (d) any right, power, authority or discretion vested herein upon an Instructing Group, the Banks or any other person or group of persons has not been exercised, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto; (ii) assume that the Facility Office of each Bank is that identified with its signature below (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) until it has received from such Bank a notice designating some other office of such Bank to replace its Facility Office and act upon any such notice until the same is superseded by a further such notice; (iii) engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained- (iv) rely as to any matters of fact which might reasonably be expected to be within the knowledge of the Borrower or, as the case may be, IBRD upon a certificate signed by or on behalf of the Borrower or, as the case may be, IBRD; (v) rely upon any communication or document believed by it to be genuine; (vi) refrain from exercising any right, power or discretion vested in it as agent hereunder unless and until *structed by an Instructing Group as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised; and (vii) refrain from acting in accordance with any instructions of an Instructing Group to begin any legal action or proceeding arising out of or in connection with this Agreement aEil it shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any value added or similar tax thereon which it will or may expend or incur in complying with such instructions. 34.3 The Agent shall: (i) promptly inform each Bank of the contents of any notice or document received by it in its capacity as Agent from the Borrower (including, but without limitation to the genemlity of the foregoing, each Notice of Dravdown) or from IBRD hereunder (ii) promptly notify each Bank of the occurrence of any Event of Default or any default by the Borrower or, as the case may be, [BRD in the due performance of or compliance with its obligations under this Agreement of which the Agent has notice from any other parry hereto; (iii) save as otherwise provided herein, act as agent hereunder in accordance with any instructions given to it by an Instructing Group, which instructions shall be binding on all of the Managers and the Banks; and (iv) if so instructed by an Instructing Group, refrain from exercising any right, power or discretion vested in it as agent hereunder. 34.4 Notwithstading anything to the contrary expressed or implied herein, neither the Agent nor any of the Managers shall: (i) be bound to enquire as to: (a) whether or not any representation or warranty made by the Borrower or IBRD in connection herewith is true; (b) the oc6zrrence or otherwise of any Evem of Default or Pbtential Event of Defaut (c) the performance by the Borrower or IBRD of its obligations hereunder, or (d) any breach of or default by the Borrower or IBRD of or under its obligations hereunder; (ii) be bound to account to any Bank for any sum or the profit element of any sum received by it for its own account; (iii) be bound to disclose to any other person any information relating to the Borrower or any of its agencies or. as the case may be, IBRD if such disclosure would or might in its opinion constitute a breach of any law or regulation or be otherwise actionable at the suit of any person; or (iv) be under any obligations other than those for which express provision is made herein. 34.5 Each Bank shall, from time to time on demand by the Agent, indemnify the Agent, in the proportion its share of the Loan (or, if no Advances have been made, its Available Commitment) bears to the amount of the Loan (or. if no Advances have been made, the Available Facility) at the time of such demand (or, if the Loan has then been prepaid or repaid in full, immediately prior to the final repaymen thereof), against any and all costs, claims, losses, expenses (including legal fees) and liabilities togetler with any value added or similar tax thereon which the Agent may incur, otherwise than by reason of its own gross negligence or wilful misconduct, in acting in its capacity as agent hereunder. 34.6 Neither the Agent and the Managers nor any of them accepts any responsibility for the accuracy and/or completeness of any information supplied by the Borrower or IBRD im connection herewith or for the legality, validity, effectiveness, adequacy or enforceability of this Agreement and neither the Agent and the Managers nor any of them shall be under any liability as a result of taking or omitting to take any action in relation to this Agreement, save in the case of gross negligence or wilful misconduct. 34.7 Each of the Banks agrees that it will no: assert or seek to assert against any director, officer or employee of the Agent or any Manager any claim it might have against any of them in respect of the matters referred to in Clause 34.6. 34.8 The Agent and each of the Managers may accept deposits from, lend money to and generally engage in any kind of banking or other business with the Borrower or any agency thereof or, as the case may be, IBRD 34.9 Subject to the limitations set forth in Clause 34.10, the Agent may resign its appointment hereunder at any time without assigning any reason therefor by giving not less than thirty days' prior wmtten notice to that effect to each of the other parties hereto; Provided Always that no such resignation shall be effective until a successor for the Agent is appointed in accordance with the succeeding provisions of this Clause 34. 34.10 If the Agent gives notice of its resignation pursuant to Clause 34.9, then any reputable and experienced bank or ocher financial institution may, after consultation with the Borrower and with the prior approval of IBRD (such approval not to be unreasonably delayed or widihbeid), be appointed as a successor to the Agent by an Instructing Group during the period of such notice but, if no such successor is so appointed, the Agent may, after consultation with the Borrower and with the prior approval of IBRD (such approval not to be unreasonably delayed or withheld), appoint such a successor itself. 34.11 If a successor to the Agent is appointed under the provisions of Clause 34.10, then (i) the retiring Agent shall be discharged from any further obligation hereunder but shall iemain entitled to the benefit of the provisions of this Clause 34 and (ii) its successor and each of the other parties -46- hereto shall have the same rights and obligations amongst themselves as they would have had if such successor had been a party hereo 34.12 It is understood and agreed by each Bank that it has itself been. and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, credirvorthiness, condition, affairs. status and nature of the Borrower and IBRD and, accordingly, each Bank warrants to the Agent and the Managers that it has not relied on and will not hereafter rely on the Agent and the Managers nor any of them: (i) to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by the Borrower or IBRD in connection with this Agre-ment or the transactions herein contemplated (whether or not such information has been or is hereaft: :. -:± !? ± ' .^g and the Managers or any of them); or (ii) to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, stams or nature of the Borrower or IBRD. 34.13 In acting as agent for the Banks, the Agency Department of Dresdner (SoutL East Asia) Limited (or any renamed or reconstitud division, department or unit thereof from time to time succeeding to all or substantially all of the functions thereofO shall be treated as a separate entity from any other of the divisions, departments or units of Dresdner (South East Asia) Limited, its parent or its subsidiaries and, without detracting from the generality of the foregoing, in the event that any of Dresdner (South East Asia) Limited's divisions, departments or units (including its Agency Department) or similar divisions. departments or units or its parent or its subsidiaries should act for the Borrower or IBRD in any capacity (whether as bankers or otherwise) in relation to any other act; matter or thing, then any information given by the Borrower or IBRD to such divisions, departments or units or its parent or its subsidiaries shall be treated as confidential and the Agent shall as between itself and the other Finance Parties not be obliged to disclose the same to any other Finance Party or any other person. 34.14 Notwithstanding anything to the contrary expressed or implied herein and without prejudice to the generality of Clause 34.13, the Agent shall, as between itself and Managers and the Banks, not be obliged to disclose to any Manager or Bank or other person any information supplied by the Borrower or IBRD to the Agent in its capacity as agent for the Managers and the Banks which is expressly identified by the Borrower or IBRD at the time of supply as being confidential and supplied solely for the purpose of evaluating in consultation with the Agent, whether anywaiver or amendment might be required to any of the provisions contained herein; Provided Always that nothing in this Clause 34.14 shall apply to any information supplied by the Borrower pursuant to Clause 18. 34.1S For the purpose of this Agreement, the Agent shall not be deemed to have any actual knowledge or actual notice of the contents of any information obtained by it or supplied to it by or on behalf of the Borrower or IBRD other than the contents of information obtained by or supplied to it as agent for the Managers and the Banks under this Agreement and which information the Agent is not obliged to keep confidential pursuant to Clause 34.14. 34.16 Notwithstanding anything to the contrary expressed or implied herein, the Agent may at any time in its own discretion convene a meeting of the Banks; Provided Always that- (i) if authorised by a Relevant Instructing Group, the Agent shall (except where any other authority is required for the same by the express provisions of this Agreement) at any time convene a meeting of the Banks: (ii) whenever the Agent is to convene any such meeting it shall forthwith give notice in writing to the Banks of the day, time and place thereof and the nature of the business to be transacted thereat: and (iii) for the purposes of this Clause 34.16 a "Relevant Instructing Group" means: (a) before the Advance has been made hereunder, a Bank or a group of Banks whose Available Commitments amount in aggregate to more than twenty per cent. of the Available Facility; (b) thereafter, a Bank or a group of Banks to whom in aggregate more than twenty per cent. of the Loan is (or, immediately prior to its prepayment or repayment was then) owed- 34.17 Subject to the proviso hereto and unless the express provisions of this Agreement provide otherwise, if authorised by an Instructing Group and also by IBRD the Agent may, with the consemt of the Borrower, amend or vary the terms of or waive breaches of or defaults under, or otherwise excuse performance of any provision of, release any security constitued under or grant consents under this Agreement. Any amendment, variation, warver, excuse of performance, relezse or consent so authorised and which is effected by the Agent, with the consent of the Borrower and IBRD, shall be binding on all the parties hereto and the Agent shall be under no liability whatsoever in respect thereof; Provided Always that nothing herein shall be taken to authorise except with the prior consent of all of the parties hereto: (i) any variation of the definition of the "Termination Dae" or any "Repayment Date;" (ii) any variation of the definition of 'Instructing Group"; (iii) any change in any rate at which interest is payable hereunder, (iv) any extension of the date for, or alteration in the amount or currency of, any payment of principal, interest, fee, commission or any other amount payable under this Agreement; (v) any waiver under or variation or amendment to Part 9; (vi) any increase in any Bank's Available Commitment or (vii) any waiver under or variation or amendment of Clauses 28.3. 28.4 or this Clause 34.17. Part 14 ASSIGNMENTS UND TRANSFERS 35. Benefit of Agreement This Agreement shall be binding upon and enure to the benefit of each party hereto and its or any subsequent successors. Transferees and assigns. 36. Assignments and Transfers by the Borrower The Borrower shall not be entitled to assign or transfer all or any of its rights, benefits and obligations hereunder. 37. Assigments and Transfers by Banks 37.1 Any Bank may, at any time, assign all or any of its rights and benefits hereunder or transfer in accordance with Clause 37.3 all or any of its rights, benefits and obligations. 37.2 If any Bank assigns all or any of its rights and benefits hereunder in accordance with Clause 37.1. then, unless and until the assignee has agreed with the Agent, the Managers, the other Banks and IBRD that it shall be under the same obligations towards each of them as it would have been under if it had been an original party hereto as a Bank., the Agent, the Managers, the other Banks and IBRD shall not be obliged to recognise such assignee as having the rights against each of them which it %vuld have had if it had been such a party hereto. Any assignmear of rights and benefits pursuant to this Clause 37.2 shall, subject to the provisions of Clause 37.6. require the prior writn consent of the Borrower (any such consent not to be unreasonably delayed or withheld). 37.3 If any Bank wishes to transfer all or any of is rights, benefits and/or obligations hereunder as contemplated in Clause 37.1, then such transfer may be effected by the delivery to the Agent of a duly completed and duly executed Transfer Certificate in which event, on the later of the Transfer Date specified in such Transfer Certificate and the fifth business day after (or such earlier business day endorsed by the Agent on such Transfer Certificate falling on or after) the date of delivery of such Transfer Certificate to the Agent: (i) to the extent that in such Transfer Certificae the Bank party thereto seeks to transfer its rights, benefts and obligations hereunder, the Borrower, IBRD and such Bank shall be released ftum further obligations towards one another hereunder and their respective rights against one another shall be cancelled (such rights, benefits and obligations being referred to in this Clause 37.3 as "discharged rights and (ii) the Borrower, IBRD and the Transferee party thereto shall assume obligations towards one another ardlor acquire rights against one another which differ from such discharged rights and obligations only insofar as the Borrower, IBRD and such Transferee have assumed and/or acquired the same in place of the Borrower, IBRD and such Bank; and (iii) the Agent, the Managers, such Transferee, IBRD and the other Banks shall acquire the same rights and benefits and assume the same obligations between themselves as they uWuld have acquired and assumed had such Transferee been an original party hereto as a Bank with the rights, benefits and/or obligations acquired or assumed by it as a result of such transfer. Any transfer of rights, benefits and/or obligations pursuant to this Clause 37.3 shall, subject to the provisions of Clause 37.6. require the prior written consent of the Borrower (which consent the Borrower shall be free to give or withhold in its sole discretion and depending upon such factors as it deems to be prudent in the circumstances including, but without limitation, the financial standing of the proposed Transferee). 0.4 kn theToame upon which a transfer takes effect pursuant to Clause 37.3, the Transferee in respect of such transfer shall pay to the Agent for its own account a transfer fee of $500. 37.5 Nothing contained in this Clause 37 shall operate so as to prejdice the operation of the doctrine of subrogation or the provisions of Clause 21.15. 37.6 If a Bank makes a written request to the Borrower for its consent to be given pursuant to Clauses 37.2 or 37.3 (the -Request") and: (i) the Borrowr does not expressly refuse us consent for such purposes in relation to the proposed assignee/Transferee in question within a period of thirty days from and inclusive of the date of the Borrower's receipt of such Request and (ii) at the expiry of such period of thirty days, the Bank in question gives a further notice to the Borrower reminding it of the fact that such Request has been made and has not been either expressly, granted or refused then, after the expiry of five business days from and inclusive of the date of the Borrower's receipt of the further notice referred to in paragraph (ii) above and if, during such five business day period, the Borrower does not expressly grant or refuse its consent, then the Borrower shall be conclusively deemed to have given its consent to such Request on the terms and conditions therein set forth. Nowithstanding the foregoing provisions of this Clause 37.6 (or anything else to the contrary in this Agreement), no consent shall be required to be obtained from the Borrower in order to allow or otherwise permit any assignment or transfer to be made to IBRD under or pursuant to the provisions of Clause 21.15 or otherwise to enable the operation of the applicable law of subrogation; Provided Always that notice of any such assignment or transfer shall be given to the Borrower by the Agent as soon as reasonably possible after it first becomes aware of the same. 37.7 In respect of any Transfer Certificate to be executed by a Bank as a Transferor pursuant to Clause 37.3, unless otherwise agreed between the Borrower and such Bank, the Amount Transferred (as to be defined in such Transfer Certificate) shall not be less than (i) the whole of such Bank's Participation (as to be defined in such Transfer Certificate) or (ii) such amount as is then not less than 2.2% of the aggregate amount of (a) the Available Facility (if any) and (b) the Loan then available or, as the case may be. outstanding. In respect of any assignment to be executed by a Bank as assignor pursuant to Clause 37.2. unless otherwise agreed between the Borrower and such Bank the foregoing provisions of this Clause shall also apply mutatis mutandis to have the same economic effect. 37.8 If. at ay time, any Bank assigns or transfers any of its rights. benefits and obligations hereunder or transfers its Facility Office and, at any time on or after such assignment or transfer there arises an obligation on the part of the Borrower under Clauses 13 or 15 or to pay to such Banks assignee or transferee any amount in excess of the amount it would have then been obliged to pay to such Bank but for such assignment or transfer, then the Borrower shall not be obliged to pay the amount of such ecess. 38. Discosure of Information 38.1 Subject to the provisions of Clause 38.3, any Bank may disclose to any actual or potential assignee or Transfree or to any person who may otherwise enter ino contractual relations with such Bank in relation to this Agreement such information about the Borrower and any of its agencies and IBRD as such Bank shall consider appropriate. 38.2 Notwithstanding the provisions of Clause 38.3, the Agent may disclose to IBRD such information about this Agreenent. the Borrower and any of its agencies as the Agent shall consider apprpaze. 38.3 Each Finance Party severally agrees for the benefit of the Borrower that all informauion received by it in connection with this Agreement (whether directly from the Borrower, from IBRD or. in the case of a Bank. from the Agent) regarding the Borrower or the Project (other than such information as is generally available to the public of which be.. -= generally available to the public other than through the Agent or such Finance Party as the case may be) will be mainnined in strict confidentiality by it and its agents. Notwithsiandig the above, such information may be disclosed by the Agent to any Finance Party and/or IBRD and such infornation may otherwise be disclosed by the Agent or by any Finance Party if: (i) disclosure has been authorised in writing by the Borrower (ii) to the extent such disclosure is required by applicable law or by governmental authorities regulating the Agent or any Finance Party (the Age=r and each Finance Party hereby agree, unless prohibited by applicable law, to notify the Borrower of any such recuired disclosure) (iii) such disclosure is to officers and employees of the Agent and any Finance Party as well as their auditors and counsel (it being understood that the Agent and each Finance Party shall be responsible for assuring that their respective officers, employees, auditors and counsel shall comply with the confidentiality provisions set forth herein) (iv) such disclosure is to any Finance Party's affiliated or holding company (as well as to the officers and employees thereof as well as their auditors and counsel) it being understood that the Agent and each Finance Party shall be responsible for assuring that their respective affiliates or holding company (as well as the officers employees, auditors and couisel thereof as aforesaid) shall comply with the confidentiality provisions set forth herein (v) such disclosure is to IBRD pursuant to Clause 38.2 or (vi) such disclosure is for the purposes of enforcing the rights and remedies of the Finance Parties under or pursuant to this Agreement and is made only to such parties and with respect only to such matters as is reasonably required with respect to the enforcement of such rights or (vii) such disclosure is to any potential or actual assignee, transferee or parricpant which has agreed in writing delivered to the Borrower to be bound by the provisions of this Clause 38.3. - 51 - Part 15 NUSCELLANEOUS 39. Calculations and Evidence of Debt 39.1 Interest and commitment commission shall accrue from day to day and shall be calculated on the basis of a year of 360 days or. in any case where market practice differs, in accordance with market practice) and the actual number of days elapsed. 39.2 If on any occasion a Reference Bank or Bank fails to supply the Agent with a quotation required of it under the foregoing provisions of this Agreement. the rate for which such quotation was required shall be determined from those quotations which are supplied to the Agent. T9 A a" n sV'fY Q:::r iii accordance with its usual practice accounts evidencing the amounts from time to Eime lent by and owing to it hereunder. 39.4 The Agent shall maintain on its books a control account or accounts in which shall be recorded (i) the amount of any Advance made or arising hereunder and each Bank's share therein, (ii) the amount of all principal, interest and other sums due or to become due from the Borrower to any of the Banks hereunder and each Bank's share therein and (iii) the amount of any sum received or recovered by the Agent hereunder and each Bank's share therein. 39.5 In any legal action or proceeding arising out of or in connection with this Agreement, the entries made in the accounts maintained pursuant to Clauses 39.3 and 39.4 shall, in the absence of manifest or obvious error, be prima fade evidence of the existence and amounts of the obligations of the Borrower therein recorded. In the event of any confict between the accouns maintained pursuant to Clauses 39.3 and 39.4, those maintained pursuant to Clause 39.3 shall prevail. 39.6 A certificate of a Bank as to (i) the amount by which a sun payable to it hereunder is to be increased under Clause 13.1 or (ii) the amount for the time being required to indemnify it against any such cost, payment or liability as is mentioned in Clause 13.2 or 15.1 shall, in the absence of manifest or obvious error, be prima fade evidence for the purposes of this Agreement. 39.7 The Agent shall use its reasonable endeavurs to give the Borrower not less than 30 days' prior written notice of ech paymt due to be made by the Borrower pursuant to Clauses 9.1. 11 andlor 32; Fravided Always that, in respect of any payment due to be made by the Borrower pursuamt to Clause 32.1 the Agent may assume (and state as an assumption in such notice) that no further Advances will be drawn after the date as of which such notice is prepared. The failure by the Agent to give any such notice as aforesaid shall not prejudice or otherwise affect the obligations of the Borrower to the Finance Parties under or pursuant to this Agreement. 39.8 If the Borrower fails to make a payment of the type, as is the subject of Clause 20.1(i). on the due date therefor then the Agent shall (as soon as is reasonably possible after the date on which it first becomes aware of such failure) give notice of such failure to the Borrower. 39.9 As soon as is reasonably possible after any date on which LIBOR is determined by the Agent for the purposes of this Agreement. the Agent shall give nctice of the rate thereby ascertained to the -52- 틔 Part 16 LAW AND JURODICTION 43. Law This Agreement shall be governed by and shall be construed in accordance with. English law- U. Jurisdiction 44.1 The Borrower hereby irrevocably agrees fm e benefit of the Finance Parties that any legal action or proceeding against it or any of its properties or assets with respect to any of the obligations arising under cr relating to this Agreement may be brought in the courts of England or in the Pleoples Republic of Chim and by cterution and delivery of this Agreement, the Bormw hereby agrees and submim to and acwpa vvita regara to any sucti-action or proceeding. for itself and in respect of its properties and assea, generally and unconditionally, the Jurisdiction of the albresad courts (for the avoidance of doubt, nothing contained herein shall be censmued to limit or resmict the 6& of the Finance Rutz to bring or initim an action or proceeding for 1- - - - nent or ctecutien of the Finance Parties' rights against the BoLLuwet hereunder in any court in any jurisdiction whae the properties or mets of the Bonmwer may be found). The Borrow= hereby inroocably designates, appoints and empowers the pnncq)al London branch of Bank of China presently located at 90 Cannon Street. London EC4N 6HA, England as its agent to receive kr and on its beiialf service of process in England in any legal action or proceeding with respect to this Agreement. A copy of any such process served on such agent shad pronipdy be forwarded by regmted or certified aumad, postage prepaid. cotaier or personally delivery by ft person . - such proceed - to the Borrower at its address for the mirposes of Clause 42, but the failim of the Borrower to receive such copy shall not affect in any way the semce of such process as aforesaid. If the Bot tower ceases to have an agent for service of process in England or its agent appointed as I - r, i --- -- provided shall be uriable to perform his functions as such agent, the Borrower shall appoint a successor agent for semce of process m England acceomble to the Agent. The Borrower hirtber irrew=bly consem w the service of process in any such action or proceeding by the mailing of copies thereof by registered or cerdfied aixinad. postage prepaW, to the Bonvwer at its address for the purposes of Clause 42. The Ibm.going. howeer, shall not linxt the ngbt of the Finance Phdies to serve process m any other manner permitted by applicable law or to bring any legal action or proceeding or obtain ewcution of judgmm in any other jurisdiction whm die properties or assets of the Borrower may be kand; Provided Always that if service of process is made in a manner odier than that stiptilased in this Clause, a copy of any such process shall promptly be forwarded by registered or certified airmail, poscW prepaid, courier or perwrial delivery by the pmon g such proceeding to the Borrower at its address for the purposes of Clause 42. but the bilure of the Borrower to receive such copy sha;I not affect in any way thee semce of such process as aforesaid. 44.2 The Borrower hereby inxwcably waives any objection which it may now . or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this. Agreement in the courts referred to in Clause 44.1 and hereby fiut gx isrevocably waives any claim dw such courts are not a commenient fonim for any such suiL action or 44.3 To the extent that the Borrower or any -of its properties or assets has or hereafter may acquire (or may claim or be attributed with) any rie& to immunity from set-off, legal kA.GA;LAUqP, etecution of judgment on the grounds of soveteignry or otherwise. the Borrower hereby ir:revocably waives and dr agrees not to claim such rights to immunity for itself and its properties and assets in respect of its obligations arising under this Agreement and any related docunemtation. 44.4 The Borrower hereby consents generally in respect of any legal action or proceeding arising out of or in connection with this Agreement to the giving of any relief or the issue of any process in connection with such action or proceeding including, without limitation, the making, enforcement or execution agaist any property whatsoever (irrespective of its use or inended use) of any order or judgment which may be made or given in such action or proceeding; Provided Always that the foregoing provisions of this Clause 44.4 do not (i) apply to any property, in any place, which is constituted by diplomarc premises, or which is used for the purposes of a diplomatic mission or is property of a military namre (including. but without limitation, aircraft and vessels of the People's Republic of China) or (ii) constitume any agreement by the Borrower to (or, as the case may be. authorisation in favour of the Finance Parties to obtain) any form of seizmre attachment or execution against any property of the Borrower before a judgment has been rendered in any such action or proceeding. AS WITNESS the hands of the duly authorised representatives of the parties hereto the day and year first before wrian. THE FIRST SCHEDULE The Banks Bank Commitment (S) The Bank of Tokyo, Ltd. (Shanghai Office) 10,500,000.00 Dresdner (South East Asia) Limited 10.500,000.00 Morgan Guaranty Trust Company of New York 10,500,000.00 The Industrial Bank of Japan, Limited 9,50.000.00 The Korea Development Bank 9,500,000.00 The Long Term Credit 8-3* !--z, L - 9,500,000.00 The Mitsubishi Bank, Limited (Hong Kong Branch) 9,500,000.00 The Sumito1o Trust and Banking Co., Ltd. (Hong Kong Branch) 6,000.000.00 The Mitsubishi Trust andi Banking Corporation (Hong Kong Branch) 5,000,000.00 Overeas Union Bank Ltd (Shenzhen Branch) 5,000,000.00 Banque et Caisse d'Epargne de I'Etat. Luxembourg 2,500,000.00 The Daiwa Bank, Limited (Hong Kong Branch) 2,000,000.00 S90,000,000.00 -6 - 56 - THE SECOND SCHEDULE Form of Transfer Certificate To: Dresdner (South East Asia) Limited TRANSFER CERTIFICATE relating to the agreement (as from time to time amended, varied, ievated or suppleraented, the "Facility Agrement*) dated [ 1, 1994 whereby a U.S.S9f,t0,M000.00 loan facility was made available to the People's Republic of China as borrower by a group of banks on whose behalf Dresdner (South East Asia) Limited acted as agen in connection therewith and partially guaranteed by the International Bank for Reconstruction and Development. 1. Terms defined in the Facility Agreement shall, subject to any contrary indication, have the same meanings herein. The terms Bank, Transferee, Bank's Participation and Amount Transferred are defined in the schedule hereto. 2. The Bank confirms that the Bank's Participation is an accurate summary of its participation in the Facility Agreement and requests the Transfere to accept and procure the transfer to the Transferee of a percentage of the Bank's Participation (equal to the percentage that the Amount Transferred is of the aggregate of the component amounts (as set out in the schedule hereto) of the Bank's Participation) by counter-signing and delivering this Transfer Certificate to the Agent at its address for the service of notices specified in the Facility Agreement. 3. The Transferee hereby requests the Agent to accept this Transfer Certificate as being delivered to the Agent pursuant to and for the purposes of Clause 37.3 of the Facility Agreement so as to take effect in accordance with the terms thereof on !e Transfer Date or on such later date as may be. determined in accordance with the terms thereof. S 4. The Transferee confirms that it has received a copy of the Facility Agreement together with such other information as it has required in connection with this transaction and that it has not relied and will not hereafter rely on the Bank to check or enquire on its behalf into the legality, vlidity, effectiveness, adequacy, accuracy or completeness of any such information and uther agrees th-t it has not relied and will not rely on the Bank to assess or keep under review on its behalf the financial condition, credirworthiness, condition, affairs, status or nature of the Borrower or IBRD 5. The Transferee hereby undertakes with the Bank and each of the other parties to the Facility Agreement that it will perform in accordance with their terms all those obligations which by the terms of the Facility Agreement will be assumed by it after delivery of this Transfer Certificate to the Agent and satisfaction of the conditions (if any) subject to which this Transfer Certificate is expressed to take effect. 6. The Bank makes no representation or warranty and assumes no responsibility with respect to the legality, validity effectiveness, adequacy or enforceability of he Facility Agreement or any document relating'thereto and assumes no respcnsibilIty for the financial condition of the Borrower or IBRD or for the performance and observance by the Borrower or IBRD of any of its obligations under the Facility Agreement or any document relating thereto and any and all such conditions and warranties, whether express or implied by law or otherwise, are hereby excluded. 7. The Bank hereby gives notice Lhat nothing herein or in the Facility Agreement (or any document relating thereto) shall oblige the Bank to (i) accept a re-transfer from the Transferee of the whole or any part of its rights, benefits and/or obligations under the Facility Agreement transferred pursuant hereto or (ii) support any losses directly or indirectly sus!ained or incurred by the Transferee for any reason whatsoever including, without limitation, the non-performance by the Bonower or any other party to the Facility Agreement (or any document relating thereto) of its obligations under any such document- The Transferee her,; -,y M " my Uh obligation as is referred to in (i) or (ii) above. S. This Transfer Certificate and the rights and obligations of the parties hereonder shall be governed by and construed in accordance with English law. THE SCHEDULE . Bank: 2. Transferee: 3. Transfer Date: 4. Bank's Participation: Bank's Available Commitment Bank's Pbrtion of the Loan 5. Amount Transferred: [rransferor Bank] [Transferee Bank] By: By: Date: Date: Deails of the Banks Available Commiunmt shold not be completed afkr de TerMiatmi Dalm - 58 - Administrative Details of Transferee Address: Contact Name: Account for Payments in dollars: Telex: Telephone: -59- THE THIRD SCHEDULE Condition Precedent Documents 1. A copy, certified a true copy by or on behalf of the Borrower, of: (i) the approval of The State Council of China given in relation to this Agreement, and (ii) the certification of The Ministry of Foreign Affairs given in relation to this Agreement. 2. A certificate of the Minister of Finance of the Borrower semog out the tll name, incumbency and true signanue of ea-.h representative of the Borrower authorised to sign and deliver on behalf of the Borrower this Agreement and any documents to be delivered by the Borrower pursuant hereto. 3. An opinion of the Borrower's Chinese Legal Counsel in substantially the form set out in the Fifth Schedule. 4. An opinion of the Banks' Chinese Legal Counsel in substantially the form set out in the Sixth Schedule. 5. An opinion of IBRD's General Legal Counsel in substantially the form set out in the Seventh Schedule. 6. An opinion of Clifford Chance, solicitors to the Agent, in substantially the form distributed to the Banks prior to the execution hereof. 7. Evidence acceptable to the Agent that the person referred to in Clause 44.1 has agreed to act as the agent of the Borrower for the service of process as therein referred to. 8. A copy, certified a true copy by or on behalf of [BRD of each of the documents referred to in sub-paragraphs (a) to (d) (both inclusive) of the second paragraph of the opinion required pursuant to paragraph 5. 9. The Agent shall have received an executed copy of the Indemnity Agreement and confirmation from IBRD that it has received evidence satisfctory to it that the Indemnity Agreement has been duly authorised or ratified by, and executed and delivered on behalf of, the Borrower and is legally binaing upon the Borrower in accordance with its terms. -60- THE FOURTH SCHEDULE Notice of Drawdown From The People's Republic of China [ I To Dresdner (South East Asia) Limited Dated [ 1,199[H Dear Sirs 1. rer to the agreement (as from time to time amended, varied, novated or supplemented, the "Fa _y Agreement") dated [ ], 1994 and made between the People's Republic of China as Borrower, the International Bank for Reconstruction and Development as partial guarantor, BOT International (H.K.) Limited, Dresdner (South East Asia) Limited and Morgan Guaranty Trust Company of New York as Arrangers, the financial institutions named therein as Lead Managers, the financial institutions named therein as Managers, the financial institutions named therein as Co-Managers, the financial institutions named therein as the Banks and Dresdner (South East Asia) Limited as Agent. Terms defined in the Facility Agreement shall have the same meaning in this notice. 2. We hereby give you notice that, pursuant to the Facility Agreement and on [date of proposed Advance], we wish to borrow an Advance of [ United States Dollars upon the terms and subject to the conditions contained therein. 3. We confirm that. at the date hereof, the representations set out in Clause 17 of the Facility Agreement are true and no Event of Default or Pbzential Event of Default has occurred. 4. The proceeds of this drawdown should be credited to [insert account details]. Yours faithfully (Authorised Signatory) for and on behalf of The Ministry of Finance on behalf of The People's Republic of China Ar Insert only if ther are no outsading Advances THE FIFTH SCHEDULE Opinion of the Borrower's Chinese Legal Counsel From The Law Department The Ministry of Finance [ I The People's Republic of China To Dresdner (South East Asia) Limited as agent on its own behalf and for and on behalf of the Mana2ers and the Banks referred to in the Facility Agreement mentioned below, and International Bank for Reconstruction and Developmem [,1994 Dear Sirs 1. We have acted on behalf of The Ministry of Finance of the People's Republic of China in connection with an agreement (the "Facility AgreewPnt) dared [ ], 1994 and made between the People's Republic of China as Borrower, the International Bank for Reconstruction and Development as partial guarantor, BOT International (H.K.) Limired, Dresdner (South East Asia) Limited and Morgan Guaranty Trust Company of New York as Arrangers, the financial institutions named therein as Lead Managers, the financial institutions named therein as Managers, the fimancial institutions named therein as Co-Managers. the financial institutions named therein as the Banks aid Dresdner (South East Asia) Limited as Agent. 2. Terms defined in the Facility Agreement shall have the same meaning herein. 3. In considering the documents referred to in paragraph 4. we have assumed: (a) the genuineness of all signatures thereon, the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies thereof- (b) the accuracy and completeness of all factual representations contained in such documents (which representations we have not independently verified); (c) the power and authority of all parties other than the Borrower to enter into, and the due execution and delivery by such parties of the Facility Agreement; and (d) the intrinsic validity of the Facility Agreement under English law. 4. We have examined a signed copy of the Facility Agreement, [ ] and such other documents as we have considered it necessary or desirable to examine for the purposes of giving this opinion. 5. Based on and subject to the foregoing and subject to the qualifications expressed in paragraph 6 below and any matters not disclosed to us by the parties concerned, we are of the opinions that: (a) The Borrower has the power to enter into the Facility Agreement and to exercise its rights and perform its obligations thereunder, and has taken all necessary action to authorise the borrowing under the Agreement and the performance of the Borrower's obligations thereunder. The Facility Agreement has been duly executed and delivered by the Borrower. (b) The Facility Agreement constitutes valid and legally binding obligations of the Borrower enforceable in accordance with its terms. (c) The obligations of the Borrower under the Facility Agreement are direct, unconditional and general obligations of the Borrower and rank at least equally and rateably (pari passu) in point of priority and security with all other unsecured and non-subordinated obligations of the Borrower. (d) The Facility Agreement has been duly authorised by all the relevant governmental authorities of China, neither the execution and delivery thereof nor the consummation of the trans tions contemplated thereby nor compliance by the Borrower with any of the terms and provisions thereof will (i) contravene any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Borrower or (ii) the constitution of China. (e) It is not necesary to file, register or record the Facility Agreement in any public office in China to ensure the legality, validity or enforceability of the Facility Agreement. (f) The Borrower will not be obliged to make any deduction from or withholding of any portion of any payment which is to be made to the Finance Parties under the Facility Agreement on account of any tax imposed by China. (g) Neither the Borrower nor its property has any right of immunity from judicial proceedings, attachment or execution of judgment in China on the grounds of sovereignty or otherwise in respect of any claims arising cut of its obligations under the Facility Agreement. (h) The choice of English law to govern the Facility Agreement is a valid choice and English law would be applied by the courts of China in any proceedings brought in connection with the Agreement except to the extent that English law was contrary to the public policy of China. (i) The irrevocable submission by the Borrower to the jurisdiction of the courts referred to in Clause 44 of the Facility Agreement is valid and binding. (j) Any final and conclusive judgment of the courts of England would be recognised and enforced in the courts of China subject to the requirements of Articles 267 and 268 of the Civil Procedure Law of China adopted on April 9, 1991; namely: I Artide 267 - If a legally effective judgment or ruling of a foreign court requires recognition and enforcement by a people's court, the party concerned may apply directly to an intermediate people's court of the People's Republic of China with jurisdiction over the case for recognition and enforcement, or the foreign court may, in accordance with the provisions of international treaties concluded or acceded to by the said country and the People's Republic of China or according to the principle of reciprocity, request that the people's court recognise and enforce the said judgment or ruling. Artide 268 - After a people's court has reviewed, in accordance with the provisions of international treaties concluded or acceded to the People's Republic of China or according to the principle of reciprocity, a legally effective judgment or ruling of a foreign court requiring recognition and enforcement by the People's Republic of China, if it considers that the judgment or ruling does not violate the basic nrinrinIo of the law of the People's Republic of China and its sovereignty, security or social and public interest, the people's court shall rule to recognise its validity. If execution of the judgment or ruling is required, an execution onier shall be issued and enforced pursuant to the relevant provisons of this Law If found to violate the basic principles of the law of the People's Republic of China or its sovereignty, security or social and public interest, the peoples court shall refuse to allow its recogtion and enforcement. (k) it is not necessary or advisable for any Fnmnce Nrty to become registered or have a place of business in China (i) by reason only of its entering intD the Facility Agreement and performing their respective obligations thereunder or (ii) in order to enforce any of the provisions of the Facility Agreement against the Borrower in China; and (1) No stamp duty will be payable in respect of the execution, delivery and enforcement of the Facility Agreement. 6. The qualifications to which this opinion is subject are that all remedies provided in the Facility Agreement may be limited by: (a) applicable bankruptcy, insolvency, reorganisation, moratorium or similar laws affecting the rights of creditors generally; (b) Articles 97 and 204 of the Civil Procedure Law which may affect the remedies provided therein; namely: Article 97 - A people's court may, at the request of the parties concerned, order preliminary execution in the following instances: (i) a claim for alimony, payment of maintenance, payment of child support, compensation for the disabled or family of the deceased or medical treatment expenses; (ii) a claim for remuneration for labour; or (iii) oher claims involving urgent circumstmnces which require preliminary executlot. Article 204 - After the priority deduction of bankruptcy expenses from bankrupt property, repayments shall be made in the following order: (i) wages owed to employees of the bankrupt enterprise and labour isurance premiums; (ii) outstanding tax payments. 7. The opinions expressed herein are conined to and given on the basis of the laws of China as currently applied by Ie Chinese courts. We have made no invstigaion of the laws of any jurtsodc=on other than Chma and we do not express or imply any opinion therwn. TWs opinion is governed by and shall be constued in accordance with Chiese law. 8. This opinion is addressed to you solely for your own use in connection with the transaction contemplated by the Facility Agreement and may not be disclosed in wholt or in part to any ocher person or otherwise relied upon for any other purpose without our express prior written consent (save that it may be disclosed to and relied upon by IBRD and your English legal counsel). Yours faithfully TH. SIXM SCHEDULE Opinion of the Bank's Chinese Legal Counsd From C&C Law Office, Beijing To Dresdner (South East Asia) Limited as agent on its own behalf and for and on behalf of the Managers and the Banks refrred to in the Facility Agreement mentioned below, and International Bank for Reconstruction and Development [ ],I 9W- Dear Sirs 1. We have acted on behalf of the Finance Parties in connection with an agreement (the "Faclity Agreement") dated [ ], 1994 and made between the People's Republic of China as lorrower, the International Bank for Reconstruction and Development as partial guarantor. BOT ernational (H.K) Limited, Dresdner (South East Asia) Limited and Morgan Guaranty Trust -rnpany of New York as Arrangers, the financial institutions named therein as Lead Managers, the financial instianions named therein as Managers, the fiancial instittions named therein as Co-Managers, the financial institutions named therein as the Banks and Dresdner (South East Asia) Limited as Agent. 2. Terms defined in the Facility Agreement shall have the same meaning herein. 3. In considering the documents referred to in paragraph 4, we have assumed: (a) the genuineness of al signatues thereon, the autheaticity of all documents submined to us as originals and the conformity to the originals of all documents submitted to us as copies thereof: (b) the accuracy and copleteness of all famal representations contained in such documents (which reprctations we have not indeperdently veriffed); (c) the power and author, - of all parties other than the Borrower to enter into, and the due cecution and def U'ry by such parties of the Facility Agreement; and (d) the intrinsic validity y the Facility Agreement under English law. 4. We have examined a sigr.: copy of the Facility Agreement, [ ] and such other documents as we haw. .-a iisidered it necessary or desirable to examine for the purposes of giving this opinion -66- 브 Artide 267 - If a le-eally effective judgmem or ruling of a foreign court requires recognition and enforcement by a peTles court, tlie party concerned nuy *vly directly to an intermediate peoples court of the Peoples RApublic of China with jurLsdiction over the caw for recognition and enforcement. or the foreign court may, in accordance with the provisiom of international treaties concluded or acce:ied to by the said country and the Peoples Republic of China or according to the pdnciple of merprocity, request that the peoples court recognise and enforce the said judgmem or ruling. Artide 268 - After a peoples court has reviewed, in accordance with the provisions of inte=ionai treaties concluded or ac to the Peoples Republic of China or according to the principle of reciprocity, a legally eftctive judgnx= or ruling of a foreign court rct4uiring recognitioi and enforcenzo by the Peoples Republic of China, if ft considers that tbe judgmem or ruling does not violm the basic principles of the law of the PWples Republic of China ud its , security or social and public unerest, the peoples cmm sball rule to recogni'se its raW4. If execwon of 'he judgmew or rulixg is reWr d, an ex=fion order shall be iswmd and enforced pursuant to the relevant provisions of this Law If kwad ta violase the basic principles of the law of the Peoples Rept6fic of China or its sovereignty, security or iocial and public interest, the people's court sball rd ise to allow its recognition and enforcemetu. (k) It is not necessary or advisable fbr any Finance Party to become registered or hve a place of business in China (i) by reason only of its entering into the Ficiliry Agreement and performing theii respective obligations thereunder or (ii) in order to enibrce any of the provisions of the Facility Agreemem astai the Borrower in China: and (1) No starnp duty will be pryable in respect of the ewcution. delivery and enforcement of the Facility Agreement. 6. The qualifications to which this opinion is subject are that all remedies provided in the Facility Agreenwm may be limited by: (a) applicable bankrupocy insolvency, reorganisation. moratorium or shmilar laws affecting the rights of credimrs generally; (b) Articles 97 and 204 of the Civil Procedure Law which may aftect the rernedies provided therein; namely: Artide W - A peoples court my, at the iapeg of (be parties concerned, order prelirninary execution in the following instames: (i) a claim for alimony, prpnent of M i I I I I I a pyment of child support, compensation for the disabled or family of the deceased or medical treatment expenses; tfi) a claim fbr remuneration fbr labour* or -68- (iii) other claims involving urgent circumstances which require preliminary execution. Article 204 - After the priority deduction of bankruptcy expenses from bankrupt property, repayments shall be made in the following order: (i) wages owed to employees of the bankrupt enterprise and labour insurance premiums; (ii) outstanding tax payments. 7. The opinions expressed herein are confined to and given on the basis of the laws of China as curr ently app'.&%" madc no investigation of the laws of any jurisdiction other than China and we do not express or imply any opinion thereon. This opinion is governed by and shall be construed in accordance with Chinese law. 8. This opinion is addressed to you solely for your own use in connection with the transaction contemplated by the Facility Agreement and may not be disclosed in whole or in part to any other person or otherwise relied upon for any other purpose without our express prior written consent (save that it may be disclosed to and relied upon by IBRD and your English legal counsel). Yours faithfully THE SEVENTH SCHEDULE Form of Opinion of General Counsel to IBRD From IBRD General Legal Counsel [addressl To Dresdner (South East Asia) Limited as agent on its own behalf and for and on behalf of the Managers and the Banks referred to in the Facility Agreement mentioned below [,1994 Dear Sirs 1. 1 refer to the loan and guarantee agreement (the "Loan Agreaem") dated [ 1, 1994 and made between the People's Republic of China as Borrower, the International Bank for Reconstruction and Development ("IBRD") as partial guarantor, BOT International (H.K.) Limited, Dresdner (South East Asia) Limited and Morgan Guaranty Trust Company of New York as Arrangers, the financial institutions named therein as Lead Managers, the financial institutions named therein as Managers, the financial institutions named therein as Co-Managers, the financial institutions named therein as the Banks and Dresdner (South East Asia) Limited as Agent. 2. I have reviewed the proceedings of IBRD to authorise the involvement by IBRD as partial guarantor on the terms and conditions set forth in the Loan Agreement and, in connection with such review, I have examined among other things, the following: (a) the Articles of Agreement, By-laws and Rules of Procedure for meetings of the Executive Directors of IBRD; (b) the minutes of the meeting of the Executive Directors of IBRD held on[ May, 1994 at which action was taken to record the approval of the Executive Directors on [ ] May, 1994 of IBRD's said involvement as partial guarantor; (c) the approval and agreement of each member of IBRD required under Section 1(b) of Article IV of said Articles of Agreement for the partial guarantee of IBRD under the Loan Agreement; (d) the Resolution, dated [ ] December, 1991, authorising [ ] of IBRD to sign in the name and on behalf of IBRD any insrument or document in connection with [BRD's said involvement as partit! guarantor; and (e) the Loan Agreement. - 70 - I.. - - -- - -- --- -- *.*. '. - -A LAIU rWCVUJr as been duly authorised. executed and delivered by IBRD. (3) The Loan Agreement constitutes the legal, valid and binding obligation of IBRD in accordance with its terms (insofar as the terms of the Loan Agreement apply to IBRD), and the obligations of IBRD thereunder rank at least par pas with all the direct and contingent liabilities of IBRD. (4) All consents (including any internal consents of IBRD), approvals, authorisations, filings or registrations required by or of [BRD in comection with the execution and delivery of the Loan Agreement and the performance by IBRD of its obligations thereunder have been obtained and are in full force and effect and such execution, delivery and performance does not and will not (i) require any further consent, approval or authorisation of, or any ratification by, or any filing, registration or qualification with, any person in each case under present laws and regulations or (ii) violate any provision of IBRD's Articles of Agreement or By-Laws or any law. rule or regulation or of any order, judgment, injunction, decree, resolution, determination or award of any court or arbitrator or any judicial, administrative or governmental authority or organisation, in each case presently in effect having applicability to IBRD. (5) IBRD has full juridical personality with capacity to make contracts, to acquire and dispose of property and to sue and be sued. (6) The obligations of IBRD under the IBRD Guarantee are entitled to the benefits of Article VII of the Articles of Agreement of IBRD and, with respect to any action brought by any of the Banks or the Agent in any of the courts specified in Clause 26 of the Loan Agreement in connection with any of IBRD's obligations under the IBRD Guarantee, [BRD has no immunity from any legal action, suit or proceeding, in, or jurisdiction of, any such court or any legal process (whether service or notice, set-off, anttachment or seizure in aid of execution of judgment, or execution of judgment) with respect to itself or any of its property or assets and to the extent any such immaur y is ascribed to it IBRD has waived it, provided, howev, that the property and assets of IBRD shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against IBRD as provided in said Article VII. The appointment of the process agents of IBRD pursuant to Clause 26.2 of the Loan Agreement is valid and effective. (7) Under IBRD's Articles of Agreement, the IBRD Guarantee and payments made thereunder are not subject to any tax by a member of IBRD (i) which tax discriminates against such IBRD Guarantee and payments made thereunder solely because such [BRD Guarantee was issued by IBRD or (ii) if the sole jurisdictional basis for the tax is the place or currency in which such IBRD Guarantee was issued, or in which obligations thereunder are made payable or paid, or the location of any office or place of business naintained by IBRD. (8) The execution and delivery of the Loan Agreement and the performance by 1BRD of its obligations thereunder will not violate, result in a breach of, or constitue a dfault under, any provision of any indenture. contract or other undertaking to which IBRD is a party or by which it or its properry is bound or, to the best of my knowledge, of any law applicable to it. Yours faithfully -72- EXECUTION PAGES The Borrower THE PEOPLE'S REPUBLIC OF CHINA 7 By : Address The Ministry of Finance (World Bank Department) Sanlibe Xicbing District Beijing 100820 The People's Republic of China As Partial Guarantor INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT By Address 1818 H Street, Washington, D.C.20433 U.S.A. The Arrangers and as the Lead Managers BOT INTERNATIONAL (II) LIMITED By . 4L - Address If F, Far East Finance Centre 16 Harcourt Road Hong Kong -73 - DRESDNER (SOUTH EAST ASIA) LIMITED BY Address 20 Collyer Quay #22-00 Tung Centre Singapore 0104 MORGAN GUARANTY TRUST COMPANY OF NEW YORK By Address 24/F, Edinburgh Tower 15 Queen's Road Central Hong Kong The Agent DRESDNER (SOUTH EAST ASIA) LIMITED By Address : 20 Collyer Quay #2209 Tung Centre Singapore 0104 Attention : Credit Administration The other Lead Managers IJ ASIA LMITED By Address : 41st Floor, Edinburgh Tower 15 Queen's Road Central Hong Kong - 74- PP i 0 * * * .~ i i.* * . * co 1 0 u 5 THE MITSUBISHI TRUST AND BANKING CORPORATION (Hong Kong Branch) By : Address 34th Floor, Edinburgh Tower 15 Queen's Road Central Hong Kong OVERSEAS UNION BANK LTD (Shenzhen Branchl By Address Room 305, 3rd Floor Century Plaza Hotel Kin Chit Road, Shenzhen Ibsal Code: 518001 The People's Republic of China The Co-Managers BANQUE ET CAISSE D'EPARGNE DE L'ETAT, LUXEMBOURG Byy Address : 1,Place de Mez L-2954, Luxembourg Grand Duching of Luxembourg DAIWA OVERSEAS FINANCE LIMITED By : Address : 11/F, The Hong Kong Club Building 3A Chater Road Central, Hong Kong -76- The Banks THE BANK OF TOKYO LTD. (Shanghai Office) By : e 4I Address Room 1207-1208 Ruijin Building 205 Macming Nan Lu Shanghai DRESDNER (SOUTH EAST ASIA) LIMITED By Address 20 Collyer Quay #2- Tung Centre Singapore 0104 MORGAN GUARANTY TRUST COMPANY OF NEW YORK By : Address 24/F, Edinburgh Tower 15 Queen's Road Central Hong Kng THE INDUSTRIAL BANK OF JAPAN, LIMITED By : Ad~dress Hong Branch 41st Floor, Edinburgh Tower 15 Queen's Road Central Hong Kong -77- THE KOREA DEVELOPMENT BANK Mdre*-.s 10-2 Kwanchol-dong .Chongoku Seoul Korea THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED (Hong Kong Brmany By : Address 45/F Fz East mance Centre 16 HaTcourt Road Hong Kong THE MTISUBISHI BANK, LIMITED (Hong Kong Branch) By : Address 14th Floor Tower 1 Admiralty Centre 18 Harcourt Road Centz-l, Hong Kong THE SUMITOMO TRUST AND BANKING CO., LTD. (Hong Kong Branch) BY O Address E18/ Three Exchange Souare 8 Connaught Place Hong Kon,g - 78 - THE MTISUBISHI TRUST AND BANKING CORPORATION (Bong Kong Branch) By : Address 34th Floor. Edinbugh Tower 15 Queen's Road Central Hong Kong OVERSEAS UNION BANK LTD Branch . By : 's Address Room 305. 3rd Floor Cenuy Plaza Hotel Kin Chit Road. Shenzhen Postad Code: 518001 The People's Republic of China BANQUE ET CAISSE D'EPARGNE DE LETAT, LUXEOURG By : Address Place de Metz L-2954. Luxembourg Grand Duchy of Lxmnbourg THE DAIWA BANK, LIMITED (Hang KoMg Bra~ch) By : Address : 12/F. The Hong Kong Club Building 3A Charer Road Central. Hong Kong -79-
Groupe de la Banque mondiale · Agreement
China - Yangzhou Thermal Power Project : Loan 3718 - Agreement - Conformed
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Groupe de la Banque mondiale
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Agreement
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Chine
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Banque mondiale