Exhibit 10.47
CREDIT AGREEMENT
dated as of ________________, 1995
among
TRITON COLOMBIA, INC.,
as Borrower,
TRITON ENERGY CORPORATION,
as Guarantor
NATIONSBANK, N.A. (CAROLINAS),
as Lender,
and
EXPORT-IMPORT BANK OF THE UNITED STATES
Eximbank Guarantee No. AP065758XX- Colombia
Eximbank Guarantee No. AP065758XX- Colombia
Term Sheet
1. Lender: NationsBank, N.A. (Carolinas)
2. Borrower: Triton Colombia, Inc.
3. Guarantor(s): Triton Energy Corporation
4. Borrower's Country: United States of America
5. Financed Portion: $43,660,000
6. Exposure Fee (per $100 of Financed Portion): $____________ (_____%)
(X) financed ( ) not financed
7. Credit Amount: $45,135,708
8.Guarantee Commitment Fee: one-eighth of one percent (1/8%) per annum on the
uncancelled and undisbursed amount of the Credit, accruing from September 7,
1994 to the Final Disbursement Date, and payable on each January 15 and July
15 of each year, beginning on January 15, 1995.
9.Principal Repayment: Ten (10) semi-annual installments, due and payable on
each January 15 and July 15, beginning on July 15, 1996, until the Credit is
repaid in full.
10.Except as otherwise provided in the Agreement, all notices shall be
directed to the respective parties in accordance with the following:
To the Borrower or the Guarantor
Address: 6688 North Central Expressway, Suite 1400
Dallas, Texas 75206
Attention: Patricia A. Jones, Treasury Analyst
Fax: (214) 691-0423
Telephone: (214) 696-7341
To the Lender
Address: 121 W. Trade Street
21st Floor, NC1-005-21-01
Charlotte, North Carolina 28255-0001
Attention: Mike Timoney
Fax: (704) 386-6432
Telephone: (704) 386-8226
Telex: 669959 (Answerback: NATIONSBKCHA)
Address: 901 Main Street, 67th Floor (75202)
P.O. Box 830304
Dallas, Texas 75283-0304
Attention: Kathleen M. Gibson, Senior Vice President
Fax: (214) 508-2410
Telephone: (214) 508-3513
Telex: (TRT) 166674
To Eximbank
Address: Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, DC 20571
Attention: Unless otherwise specified herein, Vice President -
Americas
Fax: (202) 565-3463 (Americas Division)
(202) 565-3380 (Bank-wide)
Telephone: (202) 565-3401
Telex: (TRT) 197681 EXIM UT
TABLE OF CONTENTS
BACKGROUND 1
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION 2
1.01 Defined Terms 2
1.02. Principles of Construction 7
SECTION 2. THE CREDIT
2.01 Amount 8
2.02 Availability 8
2.03 Disbursements 8
SECTION 3. GUARANTEE TO LENDER AND EXIMBANK BY GUARANTOR 8
3.01 Guarantor Guarantee 8
3.02 Guarantee Continuing and Unconditional 8
3.03 Reinstatement 9
3.04 Endorsement of Note(s) 9
SECTION 4. EXIMBANK GUARANTEE REQUIREMENTS 10
4.01 Eligibility for Eximbank Guarantee 10
4.02 Coverage of Eximbank Guarantee 10
SECTION 5. TERMS OF THE CREDIT 11
5.01 Borrowing and Repayment 11
5.02 Interest Payment 11
5.03 Alternative Interest Rate 12
5.04 Prepayment 13
5.05 Recapture 13
5.06 Evidence of Debt 13
5.07 Fixed Interest Rate Switch Option 14
SECTION 6. CONDITIONS PRECEDENT 14
6.01 Conditions Precedent to First Utilization 14
6.02 Conditions Precedent to Each Utilization 16
SECTION 7. FEES AND EXPENSES 17
7.01 Fees 17
7.02 Taxes 18
7.03 Expenses 19
7.04 Additional or Increased Costs 19
SECTION 8. PAYMENTS 20
8.01 Method of Payment 20
8.02 Application of Payments 21
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS 21
9.01 Representations and Warranties of the Borrower 21
9.02 Affirmative Covenants of the Borrower 23
9.03 Negative Covenants of the Borrower 24
9.04 Representations and Warranties of the Guarantor 25
9.05 Affirmative Covenants of the Guarantor 26
9.06 Negative Covenants of the Guarantor 28
SECTION 10. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT 28
10.01 Cancellation by the Borrower 28
10.02 Suspension and Cancellation by Eximbank 28
10.03 Events of Default 29
SECTION 11. GOVERNING LAW AND JURISDICTION 31
11.01 Governing Law 31
11.02 Submission to Jurisdiction 31
11.03 Service of Process 32
11.04 Waiver of Immunity 33
11.05 Waiver of Security Requirements 33
11.06 No Limitation 33
SECTION 12. MISCELLANEOUS 33
12.01 Computations 33
12.02 Notices 33
12.03 Disposition of Indebtedness 34
12.04 Benefit of Agreement 34
12.05 Termination of Eximbank Guarantee 34
12.06 Disclaimer; Indemnification 34
12.07 No Waiver; Remedies Cumulative 34
12.08 Entire Agreement 35
12.09 Amendment or Waiver 35
12.1 Counterparts 35
12.11 Judgement Currency 35
12.12 English Language 35
12.13 Severability 35
12.14 Maximum Interest Rate 35
Annexes
A-1 - Form of Floating Rate Note
A-2 - Form of Fixed Rate Note
B - Utilization Procedures
C - Form of Opinion of Borrower's Counsel
D - Form of Opinion of Guarantor's Counsel
THIS AGREEMENT dated as of ____________, 1995, is made by and among
TRITON COLOMBIA, INC., a Delaware corporation (the "Borrower"), TRITON ENERGY
CORPORATION, a Delaware corporation (the "Guarantor"), NATIONSBANK, N.A.
(CAROLINAS), a United States national banking association (the "Lender"), and
the Export-Import Bank of the United States, an agency of the United States of
America ("Eximbank"). Capitalized terms used herein shall be defined as
provided in Section 1.
BACKGROUND
WHEREAS:
(A) by this Agreement, the Lender has established an export financing
credit (the "Credit") in the amount of $45,135,708, pursuant to which the
Lender shall extend financing to the Borrower: (i) for the purchase of the
Items in the United States for export to Colombia; and (ii) for the payment of
the related Exposure Fee;
(B) pursuant to the terms of this Agreement, the Guarantor has agreed
to guarantee the payment in full when due (whether at stated maturity, by
reason of acceleration or otherwise) of all amounts due by the Borrower to the
Lender or Eximbank, respectively, under this Agreement or the Note(s);
(C) the establishment of the Credit will facilitate exports from the
United States to Colombia;
(D) pursuant to the Joint Operating Agreement, the Borrower, BP and
Total have entered into a financing allocation agreement (the "Financing
Allocation Agreement") among themselves and with Ecopetrol, whereby the cost
of the Items has been allocated to the Borrower (the "Triton Share") and
Ecopetrol (the "Ecopetrol Share");
(E) pursuant to the Financing Allocation Agreement, BP shall provide
certificates to Eximbank (in the form of Exhibit 6 to Annex B) confirming the
purchase and payment of the Items on behalf of Borrower, and the Triton Share
applicable thereto, and Borrower shall provide certificates to Eximbank (in
the form of Exhibit 7 to Annex B) with respect to the Borrowers obligation for
such Items;
(F) a condition to the Lender's extension of the Credit under this
Agreement is the availability of the Eximbank Guarantee pursuant to the terms
and conditions of a Master Guarantee Agreement dated September 9, 1993 between
the Lender and Eximbank (the "Eximbank Guarantee Agreement"); and
(G) the Credit may be utilized by the Borrower in accordance with the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.01 Defined Terms. For the purposes of this Agreement, unless
otherwise defined herein, the following terms shall have the meanings
specified below.
"Agreement" shall mean this Credit Agreement, including any Annex,
Exhibit, Schedule, Term Sheet and other attachment thereto, as amended or
otherwise modified from time to time.
"Alternate Rate" shall mean that rate of interest established from time
to time by the Lender as its general reference rate of interest, after taking
into account such factors as the Lender may from time to time, in its sole
discretion, deem appropriate, it being understood, however, that the Lender
may from time to time make various loans at rates of interest having no
relationship to such general reference rate of interest.
"Associates" shall mean BP, Borrower, Total and Ecopetrol and their
successors and assigns.
"Borrower Documents" shall mean this Agreement, the Note(s) and all other
documents and instruments to be executed and delivered by the Borrower under
this Agreement.
"Borrower Financial Statements" shall mean the financial statements of
the Borrower at June 30, 1995 furnished to the Lender and Eximbank prior to
the date of this Agreement.
"BP" shall mean the BP Exploration Company (Colombia) Limited, a company
existing under the laws of England and Wales, and the operator under the Joint
Operating Agreement.
"Business Day" shall mean any day on which dealings in Dollar deposits
are carried on in the London interbank market and on which commercial banks in
London and New York City are open for domestic and foreign exchange business.
"Cash Payment" shall have the meaning set forth in Section 4.01(a).
"Colombia" shall mean the Republic of Colombia.
"Contract Price" shall mean, with respect to any Item, the invoice amount
of such Item as appearing in the Supplier's invoice therefor.
"Credit" shall have the meaning set forth in Whereas clause (A).
"Disbursement" shall mean either a Reimbursement or an L/C Payment.
"Disbursement Date" shall mean, in relation to any Disbursement, the
Business Day on which the Lender shall make such Disbursement.
"Disposition of Indebtedness" shall have the meaning set forth in Section
12.03.
"Dollars," "U.S. Dollars," "U.S.D.," "U.S. $" or "$" shall mean the
lawful currency of the United States of America.
"Ecopetrol" shall mean Empresa Colombiana de Petroleos, an Empresa
Industrial y Comercial del Estado existing under the laws of Colombia and
wholly-owned by Colombia, which is responsible for the direction of the
exploration and exploitation of state-owned hydrocarbons in Colombia.
"Ecopetrol Share" shall have the meaning set forth in Whereas clause (D).
"Event of Default" shall have the meaning set forth in Section 10.03.
"Eximbank Guarantee" shall mean the guarantee provided by Eximbank under
the Eximbank Guarantee Agreement.
"Eximbank Guarantee Agreement" shall have the meaning set forth in
Whereas clause (F).
"Exposure Fee" shall have the meaning set forth in Section 7.01(a)(ii).
"Final Disbursement Date" shall have the meaning set forth in Section
2.02.
"Financed Amount" shall mean the amount equal to the sum of: (i) the
Financed Portion; and (ii) the Exposure Fee payable thereon.
"Financed Portion" shall mean the Triton Share of the portion of the
respective Contract Prices of the Items that may be covered under the Eximbank
Guarantee in accordance with Section 4.02(a).
"Financing Allocation Agreement" shall have the meaning set forth in
Whereas clause (D).
"Fixed Rate Note" shall mean a Note in the form of Annex A-2.
"Floating Rate Note" shall mean a Note in the form of Annex A-1.
"Foreign Cost" shall mean, with respect to any Item, the cost to the
Supplier of any component of such Item if such component was produced or
manufactured outside the United States. Eximbank shall determine what does
and does not constitute Foreign Cost, and such determination, in the absence
of manifest error, shall be conclusive and binding for all purposes.
"Governmental Authority" shall mean the Government of Colombia, the
Government of the United States, any agency, department or any other
administrative authority or instrumentality of the Government of Colombia or
the Government of the United States, and any local or other governmental
authority within Colombia and the United States.
"Guarantee Certificate" shall mean, with respect to a Utilization,
Eximbank's Certificate Authorizing Reimbursement in the form of Exhibit 3 to
Annex B or Eximbank's Certificate Approving Letter of Credit in the form of
Exhibit 5 to Annex B, whichever is appropriate.
"Guarantee Commitment Fee" shall have the meaning set forth in Section
7.01(a)(i).
"Guarantor Financial Statements" shall mean the financial statements of
the Guarantor at December 31, 1994 furnished to the Lender and Eximbank prior
to the date of this Agreement.
"Guarantor Guarantee" shall mean the guarantee set forth in Section 3.
"Highest Lawful Rate" shall mean the maximum rate of interest which,
under any statute, law, treaty, ordinance, rule, regulation, order, writ,
injunction, decree, judgment, or judicial opinion of any court or tribunal,
the Lender is permitted to contract for, charge, take, reserve or receive on
the Credit.
Indenture shall mean that certain Indenture Agreement dated as of
December 15, 1993 between the Guarantor, as Issuer, and United States Trust
Company, as Trustee, authorizing the issuance of $170,000,000 of the
Guarantors 9 3/4% senior subordinated discount notes due 2000, as amended from
time to time.
"Interest Payment Date" shall mean January 15 and July 15 of each year,
beginning January 15, 1996.
"Interest Period" shall mean, with respect to any Disbursement, (i) the
period commencing on the Disbursement Date and extending up to, but not
including, the next Interest Payment Date; provided, however, that if the
Disbursement Date is within sixty (60) days of such Interest Payment Date, the
Interest Period shall end on the next succeeding Interest Payment Date; and
(ii) thereafter the period commencing on each Interest Payment Date and
extending up to, but not including, the next Interest Payment Date.
"Items" shall have the meaning set forth in Section 4.01(a).
"Joint Operating Agreement" shall mean the Joint Operating Agreement for
the Santiago de las Atalayas-1, Tauramena and Rio Chitamena Contract Areas
dated as of March 29, 1994, among Borrower, BP (as operator) and Total
covering those parts of the Cusiana and Cupiagua Fields underlying such
contract areas (as heretofore or hereafter amended).
"Joint Venture" shall mean that certain association among the Associates
formed for the purpose of achieving full-field commercial production of the
Project.
"L/C Payment" shall have the meaning set forth in Section 2.03.
"Lender Fixed Rate" shall mean the per annum rate of interest quoted at the
time by the Lender to the Borrower for the applicable Disbursement, which rate
shall be similar to those generally available to similarly rated borrowers and
credit facilities in the U.S. market at such time.
"Letter of Credit" shall mean any irrevocable documentary sight letter of
credit for which Eximbank has issued a Guarantee Certificate under this
Agreement.
"LIBOR" shall mean, in relation to any Interest Period, the rate of
interest per annum (rounded upward, if necessary, to the nearest 1/16 of 1%)
quoted by the principal London office of the Lender or an affiliate of the
Lender designated by the Lender at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for the offering
to leading banks in the London interbank market of U.S. Dollar deposits for a
period and in an amount comparable to such Interest Period and the principal
amount upon which interest is to be paid during such Interest Period.
Promptly after determining the applicable interest rate for an Interest
Period, the Lender shall give notice by telex or telecopy to the Borrower of
such rate, which rate, absent manifest error, shall be final, conclusive and
binding on the Borrower.
"Lien" shall mean any lien, lease, mortgage, pledge, hypothecation,
preferential arrangement relating to payments or other encumbrance or security
interest.
"Make Whole Amount" shall mean an amount, determined as of five (5)
Business Days prior to any prepayment, equal to (but in no event less than
zero):
(a) the sum of the present values of the remaining scheduled principal
payments in respect of the principal amount of any Fixed Rate Note being
prepaid and the remaining scheduled interest payments that would have been
payable on and in respect of the principal amount of such Note from the
respective dates on which such principal and interest payments are payable to
and including the prepayment date (for purposes of this definition, "present
value" shall be computed in accordance with generally accepted financial
practice on a semi-annual basis at a rate mutually agreeable to the Lender and
the Borrower; such mutually agreeable rate shall be determined through
negotiations between the Lender and the Borrower for a period not to exceed
thirty (30) days; if no rate is decided upon by the Lender and the Borrower
within thirty (30) days, then the Alternate Rate shall be used), minus
(b) the principal amount of the Note being prepaid.
"MARAD" shall have the meaning set forth in Section 4.01(b).
"Note" shall mean either a Floating Rate Note or a Fixed Rate Note.
"Payment Date" shall mean January 15 and July 15 of each year, beginning
on July 15, 1996.
"Payment Default Date" shall have the meaning set forth in Section
5.02(b)(iii).
"Permitted Lien" shall have the meaning set forth in Section 9.03(a).
"Person" shall mean an individual, corporation, partnership, trust,
unincorporated organization or any other enterprise, or a government or any
agency or political subdivision of a government.
"Production Cost" shall mean, with respect to any Item, the sum of (i)
direct material and component costs, (ii) direct labor costs and (iii)
indirect costs that can reasonably be attributed to the production of such
Item. Eximbank shall determine what does and does not constitute Production
Cost, and such determination, in the absence of manifest error, shall be
conclusive and binding for all purposes.
"Progress Payment" shall have the meaning set forth in Section 6.01(h).
"Project" shall mean the oilfield development project in the Cusiana and
Cupiagua fields in Colombia described in the Joint Operating Agreement.
"Purchase Contract" shall mean a contract for the purchase of Items
between BP, as Project operator, and a Supplier.
"Regulatory Change" shall have the meaning set forth in Section 7.04(c).
"Reimbursement" shall have the meaning set forth in Section 2.03.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System comprising Part 204 of Title 12, Code of Federal
Regulations, as amended, and any successor thereto, and any other reserve,
special deposit or similar requirements imposed against assets of, deposits
with or for the account of or credit extended by depository institutions
(including, without limitation, Federal Deposit Insurance Corporation premiums
or assessments).
"Reserve/Premium Requirements" shall mean reserve requirements
(including, without limitation, basic, supplemental, transitional, emergency
or marginal reserves) imposed under Regulation D, and any other reserve,
special deposit or similar requirements imposed against assets of,
deposits with or for the account of, or credit extended by depository
institutions (including, without limitation, Federal Deposit Insurance
Corporation premiums or assessments).
"Special LIBOR" shall mean, with respect to any Interest Period, the rate
of interest per annum specified as the London Interbank Offered Rate (LIBOR)
on the Reuters Decision 2000 application under the Price History Display in
effect on the day two Business Days prior to the first day of the relevant
Interest Period for a term similar to the term of such Interest Period. If no
rate is specified for such day, the applicable rate shall be the rate
specified for the immediately preceding day for which a rate is specified, and
if more than one rate is specified, the applicable rate shall be the highest
of all such rates.
"Supplier" shall mean the Person who issues a Supplier's Certificate.
"Supplier's Certificate" shall mean a certificate of a Supplier in the
form of Exhibit 2 or Exhibit 2(a) to Annex B, whichever is appropriate.
"Taxes" shall mean any taxes, fees, levies, imposts, duties or charges of
whatsoever nature (whether imposed by withholding or deduction or otherwise)
imposed by any Governmental Authority (including, without limitation, any
taxing authority), or by any other jurisdiction from which payments required
hereunder or under the Note(s) are made.
"Total" shall mean Total Exploratie en Produktie Mij B.V., a corporation
existing under the laws of the Netherlands.
"Triton Share" shall have the meaning set forth in Whereas clause (D).
"U.S." or "United States" shall mean the United States of America.
"U.S. Content" shall mean, with respect to any Item, the Contract Price
of such Item less the Foreign Cost associated with such Item, if any.
Eximbank shall determine what does and does not constitute U.S. Content, and
such determination, in the absence of manifest error, shall be conclusive and
binding for all purposes.
"U.S. Treasury Rate" shall have the meaning set forth in Section
5.02(b)(iii).
"Utilization" shall mean either: (i) the making of a Reimbursement in
accordance with the Reimbursement Procedure set forth in Section II of Annex
B; or (ii) the issuance of a Letter of Credit in accordance with the Letter of
Credit Procedure set forth in Section III of Annex B.
1.02 Principles of Construction
.
(a) The meanings set forth for defined terms in Section 1.01 or
elsewhere in this Agreement shall be equally applicable to both the singular
and plural forms of the terms defined.
(b) Unless otherwise specified, all references in this Agreement to
Sections, Term Sheets, Annexes, Exhibits and Schedules are to Sections, Term
Sheets, Annexes, Exhibits and Schedules in or to this Agreement.
(c) The headings of the Sections in this Agreement are included for
convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement.
SECTION 2. THE CREDIT
2.01 Amount. The Lender hereby establishes the Credit, upon the
terms and conditions set forth in this Agreement, in favor of the Borrower in
the amount of $45,135,708 to enable the Borrower to finance: (i) the Financed
Portion of the costs incurred on or after March 3, 1993 by the Borrower for
purchase of the Items in the United States and their export to Colombia; and
(ii) the Exposure Fee payable on the Financed Portion.
2.02 Availability. Subject to the terms and conditions provided
herein, including, without limitation, the conditions set forth in Section 6,
Disbursements under the Credit may be made up to and including the Final
Disbursement Date. "Final Disbursement Date" shall mean either January 31,
1996 or, if earlier, the date on which the Credit is canceled by either (i)
the Borrower in accordance with Section 10.01, or (ii) Eximbank in accordance
with Section 10.02.
2.03 Disbursements. Upon satisfaction of the conditions set forth
in Section 6, the Credit may be disbursed in the manner described in, and
subject to the conditions of, Section 5 and Annex B. Disbursements may be
made: (i) through drawings by a Supplier under a Letter of Credit ("L/C
Payments"); and/or (ii) by advances from the Lender to the Borrower
reimbursing the Borrower for payments to a Supplier and/or Eximbank
("Reimbursements").
SECTION 3. GUARANTEE TO LENDER AND EXIMBANK BY GUARANTOR
3.01 Guarantor Guarantee. The Guarantor hereby unconditionally
and irrevocably guarantees to the Lender and Eximbank the full, prompt and
complete payment when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Credit, together with any
and all other amounts payable by the Borrower to the Lender or Eximbank under
this Agreement or the Note(s). If the Borrower shall fail to pay when due any
or all sums hereby guaranteed (whether at stated maturity, by acceleration or
otherwise), the Guarantor shall forthwith pay, without any demand or notice,
the full amount due and payable by the Borrower in U.S. Dollars at the place
and in the manner required by this Agreement or the Note(s). This is a
guarantee of payment and not merely of collection, and shall remain in full
force and effect until all the obligations of the Borrower hereby guaranteed
are paid in full. To the extent permitted by applicable law, the Guarantor
waives all defenses of a surety or guarantor to which it may be entitled by
statute or otherwise.
3.02 Guarantee Continuing and Unconditional.
(a) The Guarantor Guarantee is a continuing, absolute and unconditional
guarantee of payment as primary obligor and not merely as surety, and shall
apply to all obligations of the Borrower under this Agreement and the Note(s)
whenever arising. Without limiting the generality of the foregoing, the
Guarantor Guarantee shall not be released, discharged or otherwise affected
by: (i) the lack of genuineness, legality, validity, regularity or
enforceability of this Agreement or the Note(s) or any other agreement or
document contemplated hereby; (ii) the surrender, release, exchange,
substitution, taking of any additional collateral, or impairment of any
collateral; (iii) failure by the Borrower to comply with any of the terms of
this Agreement or the Note(s); (iv) any change in the name, authorized
activities, capital stock, corporate existence, structure, personnel or
ownership of the Borrower; (v) any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Borrower or its assets; or (vi) any
other act or omission to act or delay of any kind by the Borrower, the
Guarantor, the Lender or Eximbank or any other Person, or any other
circumstance whatsoever that might, but for the provisions of this Section
3.02, constitute a legal or equitable discharge or defense to the Guarantor's
obligations hereunder.
(b) The Guarantor hereby irrevocably and expressly waives all diligence,
presentments, demands, protests and notices of any kind whatsoever, including,
without limitation, notices of nonperformance or nonpayment, notices of
default, notices of protest, notices of dishonor, notices of acceptance of
this Guarantor Guarantee, and notices of the existence, creation or incurring
of new or additional obligations by the Borrower under this Agreement or the
Note(s).
(c) The Guarantor consents that, without notice to the Guarantor and
without the necessity for any additional endorsement, consent or guarantee by
the Guarantor, the liabilities of the Borrower hereby guaranteed may, from
time to time, be renewed, extended, increased, accelerated, modified
(including without limitation any change in interest rate or a switch from a
floating to fixed rate of interest) , amended, compromised, waived, released
or discharged by the Lender or Eximbank, and any security which is or in the
future may be held, or any other guarantee issued for, the payment of the
indebtedness of the Borrower under this Agreement or the Note(s) may be
exchanged, sold or surrendered by the Lender or Eximbank, all without
impairing or affecting in any way the obligation of the Guarantor hereunder.
Neither the Lender or Eximbank shall be obliged to enforce any remedies
against the Borrower or any guarantee or security which it may hold before
being entitled to payment from the Guarantor of the obligations hereby
guaranteed.
3.03 Reinstatement. The Guarantor Guarantee shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of the Borrower in respect of obligations hereby guaranteed
is recovered from or repaid by the Lender, Eximbank or any other party as a
result of any proceeding in bankruptcy, insolvency, reorganization or
otherwise.
3.04 Endorsement of Note(s). To evidence further the Guarantor
Guarantee contained in this Section 3, the Guarantor agrees to endorse, in the
form specified in Annex A-1 and A-2, each Note issued by the Borrower
hereunder, including any replacement Note issued pursuant to Section 5.06.
SECTION 4. EXIMBANK GUARANTEE REQUIREMENTS
4.01 Eligibility for Eximbank Guarantee
(a) Subject to the Utilization Procedures described in Annex B
attached hereto, "Items" shall mean (i) goods exported from the United States
under a Purchase Contract, (ii) services performed under a Purchase Contract,
and (iii) certain bank, financial intermediary and legal fees directly related
to the Eximbank financing, all of which goods, services and fees shall have
been approved by Eximbank as eligible under the Eximbank Guarantee and thus
eligible for financing under the Credit. Except with respect the Items
described in subclause (iii) of the foregoing sentence, the Foreign Cost
associated with each Item shall be less than 50% of the Production Cost of
such Item; and the Borrower shall have made or caused to be made a cash
payment ("Cash Payment") for the purchase of such Item in an amount equal to
not less than 15% of the Contract Price of such Item. Eximbank shall
determine what does and does not constitute an Item, and such determination,
in the absence of manifest error, shall be conclusive and binding for all
purposes.
(b) To be eligible for the Eximbank Guarantee, all Items that are to
be financed under the Credit and that are to be exported by ocean vessel must
be transported from the United States in vessels of U.S. registry, as required
by 46 U.S.C. 1241-1 (Public Resolution No. 17 of the 73rd Congress of the
United States, as amended), except to the extent that a waiver of this
requirement is obtained from the U.S. Maritime Administration ("MARAD"), as
described in Annex B. Notwithstanding Section 4.01(a), if any Items are
shipped on vessels of non-U.S. registry without a MARAD waiver, or contrary to
the provisions of a MARAD waiver, such Items will not be eligible under the
Eximbank Guarantee and thus will not be eligible for financing under the
Credit.
(c) If an Item is shipped on ocean vessels or aircraft of U.S.
registry, the cost of shipment may be included in the U.S. Content of the
Item. If an Item is shipped on ocean vessels or aircraft of non-U.S.
registry, the cost of shipment may be part of the Foreign Cost associated with
such Item if such cost has been included in the Contract Price of the Item
and, in the case of ocean vessels, a MARAD waiver has been obtained..
(d) The Borrower shall obtain or cause to be obtained insurance
against marine and transit hazards on all shipments of the Items in an amount
not less than the amount of the Disbursements that have been or are to be made
with respect to those shipments. United States insurers shall be given a
non-discriminatory opportunity to bid for such insurance business related to
the Items. The cost of the premiums for such insurance may be included in the
U.S. Content of the insured Item if: (i) the insurance is placed in the United
States with U.S. companies; and (ii) the premiums are paid in the United
States in Dollars. In all other cases, the cost of the premiums may be
included in the Foreign Cost associated with the Item if such cost has been
included in the Contract Price of the Item.
4.02 Coverage of Eximbank Guarantee. Subject to the terms and
conditions of the Eximbank Guarantee Agreement, a Disbursement made with
respect to an Item shall be covered by the Eximbank Guarantee up to the
following maximum amount:
(a) an amount equal to the lesser of (i) 85% of the Contract Price
of such Item, or (ii) 100% of the U.S. Content of such Item; plus
(b) an amount equal to 100% of the applicable Exposure Fee.
SECTION 5. TERMS OF THE CREDIT
5.01 Borrowing and Repayment.
(a) Subject to the terms and conditions of this Agreement, and as
long as no Event of Default exists, the Lender agrees to loan to the Borrower
an aggregate principal amount not to exceed the Financed Amount in one or more
Disbursements. For each Disbursement under the Credit, Eximbank shall have
issued to the Lender either (x) a Certificate Authorizing Reimbursement in the
form of Exhibit 3 of Annex B hereof, or (y) a Certificate Approving Letter of
Credit in the form of Exhibit 5 of Annex B hereof.
(b) The Borrower shall repay all amounts disbursed under the Credit
in ten (10) approximately equal, successive semi-annual installments, with
each such installment to be payable on a Payment Date, provided that, on the
last Payment Date, the Borrower shall repay in full the principal amount of
the Credit then outstanding.
5.02 Interest Payment.
(a) To Lender
(i) Subject to the provisions of Section 12.14 concerning the Highest
Lawful Rate, on each Interest Payment Date, the Borrower shall pay interest on
all amounts disbursed and outstanding from time to time under the Credit,
calculated at an interest rate per annum equal to the sum of (x) 0.25% per
annum, and (y) LIBOR for the applicable Interest Period(s), or any other
interest rate in effect for such amounts.
(ii) If all or any part of principal, accrued interest, fees or other
amounts owing to the Lender under this Agreement or any Note is not paid in
full when due, whether at stated maturity, by acceleration or otherwise, the
Borrower shall pay to the Lender on demand interest on the unpaid amount (to
the extent permitted by applicable law) for the period from the date such
amount was due until such amount shall have been paid in full at an interest
rate per annum equal to (x) 1% per annum above the interest rate then
applicable under Section 5.02(a)(i) until the end of the then current
Interest Period, and (y) thereafter 1% per annum above the Alternate Rate.
(b) To Eximbank
(i) Notwithstanding Section 5.02(a)(i), if Eximbank shall have made a
claim payment to the Lender with respect to any Floating Rate Note subject to
the Accelerated Payment Method (as defined in the Guarantee Agreement), then,
beginning on the date of such claim payment, the definition of Special LIBOR
shall apply to each such Floating Rate Note (in place of the definition of
LIBOR contained in each such Floating Rate Note) for all purposes, including,
without limitation, Section 5.02(b)(ii).
(ii) Notwithstanding Section 5.02(a)(ii), if Eximbank shall have made
a claim payment to the Lender with respect to any Note subject to either the
Accelerated Payment Method or the Installment Payment Method (as defined in
the Guarantee Agreement), then, beginning on the date of such claim payment,
if any amount of principal of or accrued interest on any Note then owing to
Eximbank is not paid in full when due, whether at stated maturity, by
acceleration or otherwise, the Borrower shall pay to Eximbank on demand
interest on such unpaid amount (to the extent permitted by applicable law) for
the period from the date such amount was due to Eximbank until such amount
shall have been paid in full at an interest rate per annum equal to one
percent (1%) per annum above the interest rate then applicable under Section
5.02(a)(i) (as modified, if required, by 5.02(b)(i)).
(iii) Except as otherwise provided in 5.02(b)(ii) with respect to
amounts of principal and accrued interest, if, at any time, any amount owing
to Eximbank under this Agreement or any Note is not paid in full when due, the
Borrower shall pay to Eximbank on demand interest on such unpaid amount for
the period from the date such amount was due ("Payment Default Date") until
such amount shall have been paid in full at an interest rate per annum equal
to one percent (1%) per annum above the U.S. Treasury Rate. The "U.S.
Treasury Rate" shall mean the interest rate specified in the Federal Reserve
Statistical Release H.15 (519) Selected Interest Rates for six-month (180
days) Treasury Bills under the category entitled "Treasury Bills, Auction
Average (Investment)" (or, if not included under such category, the category
entitled "Treasury Constant Maturities"), which is in effect on the Payment
Default Date.
5.03 Alternative Interest Rate
.
(a) If the Lender shall have determined (which determination shall be
conclusive and binding for all purposes, absent manifest error), prior to the
commencement of any Interest Period that: (i) Dollar deposits of sufficient
amount and maturity for funding a Disbursement are not generally available to
the Lender in the London interbank market in the ordinary course of business;
or (ii) by reason of circumstances generally affecting the relevant market,
adequate and fair means do not exist for ascertaining the rate of interest to
be applicable to a Disbursement; or (iii) the relevant rate of interest
referred to in the definition of LIBOR which is to be used to determine the
rate of interest for a Disbursement does not cover the funding cost to the
Lender of making or maintaining the Disbursement, then the Lender, so long as
such condition shall exist, shall give notice to the Borrower of the rate of
interest which the Lender determines is equal to the Alternate Rate (expressed
as an annual rate), and interest shall accrue during each applicable Interest
Period at the rate set forth in the notice.
(b) If, in the Lender's reasonable judgment, it becomes unlawful at
any time for the Lender to make or maintain Disbursements based upon LIBOR,
the Lender, so long as such condition shall exist, shall give notice to the
Borrower of the rate of interest which the Lender determines is equal to the
Alternate Rate (expressed as an annual rate), and interest shall accrue during
each applicable Interest Period at the rate set forth in such notice.
5.04 Prepayment. Subject to Section 5.05, the Borrower may from
time to time prepay on any Interest Payment Date all or part of the principal
amount of the Credit, provided that: (i) any partial prepayment shall be in a
minimum principal amount of $5,000,000; (ii) the Borrower shall have given the
Lender and Eximbank at least ten (10) days prior written notice of the
prepayment (which notice shall be irrevocable); and (iii) the Borrower shall
have paid in full all amounts due under the Credit as of the date of such
prepayment, including interest which has accrued to the date of prepayment on
the amount prepaid. Prepayments shall be applied to the installments of
principal of the Credit in the inverse order of their maturity, and, in cases
where more than one Note is outstanding, pro rata to each Note.
5.05 Recapture. The Borrower shall pay to the Lender, upon the
written request of the Lender, the applicable Make Whole Amount and such other
amounts as shall be sufficient (in the reasonable judgment of the Lender) to
compensate the Lender for any loss, expense or liability (including, without
limitation, any loss, expense or liability incurred by reason of the
liquidation or redeployment of deposits from third parties or in connection
with obtaining funds to make or maintain any Disbursement, but excluding any
loss of profit) which the Lender reasonably determines is attributable to:
(i) any payment or prepayment of the Credit on a date prior to the
originally scheduled maturity thereof, or on a date other than an Interest
Payment Date as permitted in Section 5.04 (including, without limitation, by
reason of acceleration), or
(ii) any failure by the Borrower to borrow any advance that has been
requested in a Request for Reimbursement (as provided in Annex B).
5.06 Evidence of Debt
(a) The Borrower agrees that to evidence further its obligation to
repay all amounts disbursed under the Credit, with interest accrued thereon,
it shall issue and deliver to the Lender, in accordance with the written
instructions of the Lender, one or more promissory notes (the Note(s)"). Each
Note shall be in the form of either Annex A-1 or Annex A-2, or as otherwise
agreed upon by the parties hereto, shall bear the Guarantor's guarantee
endorsement, and shall be valid and enforceable as to its principal amount at
any time only to the extent of the aggregate amounts then disbursed and
outstanding under the Credit, and, as to interest, only to the extent of the
interest accrued thereon. Any notations by the Lender on any Note regarding
payments made on account of the principal thereof, in absence of manifest
error, shall be conclusive and binding.
(b) If requested by the Lender, within ten (10) days after the Final
Disbursement Date, the Borrower shall issue and deliver to the Lender a new
Note(s) in exchange for the Note(s) previously issued and delivered in
accordance with Section 6.01(i), whereupon the Lender shall surrender such
previously issued Note(s) for cancellation to the Borrower through Eximbank.
The principal amount of such new Note(s) shall equal in the aggregate the
principal amount of the Credit then disbursed and outstanding.
(c) If requested by the Lender or Eximbank pursuant to Section
7.02(b)(ii), the Borrower shall issue and deliver to the Lender a new Note(s)
in exchange for the Note(s) previously issued and delivered in accordance with
this Agreement, whereupon the Lender shall surrender such previously issued
Note(s) for cancellation to the Borrower through Eximbank.
(d) If any Note is mutilated, lost, stolen or destroyed, the Borrower
shall issue and deliver a new Note of the same date, maturity and denomination
as the Note so mutilated, lost, stolen or destroyed; provided that, in the
case of any mutilated Note, such mutilated Note shall be returned to the
Borrower after examination by Eximbank, and, in the case of any lost, stolen
or destroyed Note, the Borrower and Eximbank shall have first received
evidence of such loss, theft or destruction reasonably satisfactory to each of
them.
5.07 Fixed Interest Rate Switch Option. Any time after the
Final Disbursement Date, the Borrower shall have the one-time option with
respect to each loan bearing interest at a floating rate of converting such
loan to a Lender Fixed Rate, provided that on the date of conversion the
aggregate principal amount of such loans bearing interest at a floating rate
made to the Borrower which are to be converted must equal or exceed U.S.
$10,000,000, unless otherwise agreed to by the Lender. Any such conversion
may only occur (i) after the Borrower has given the Lender and Eximbank not
less than thirty (30) Business Days notice (unless the Borrower, the Lender
and Eximbank agree to a shorter notice period), (ii) after the Borrower has
issued and delivered to the Lender a Fixed Rate Note and Eximbank has endorsed
such Fixed Rate Note, and (iii) on one of the Payment Dates. In the event
that the Borrower elects to convert less than all of the loans, the remaining
loans shall no longer be eligible for conversion pursuant to this paragraph.
SECTION 6. CONDITIONS PRECEDENT
6.01 Conditions Precedent to First Utilization. The obligation of
the Lender to permit the first Utilization of the Credit shall be subject to
the delivery to the Lender and Eximbank of the appropriate documents indicated
below and to the fulfillment, in a manner satisfactory to the Lender and
Eximbank, of the conditions set forth below:
(a) This Agreement. This Agreement fully executed by the parties
hereto, which shall be in full force and effect.
(b) Existence. (i) Evidence that the Borrower is duly organized
and validly existing under the laws of Delaware, with full power, authority
and legal right to own its property and carry on its business as now
conducted. (ii) Evidence that the Guarantor is duly organized and validly
existing under the laws of the Delaware, with full power, authority and legal
right to own its property and carry on its business as now conducted.
(c) Authority. (i) Evidence of the authority of the Borrower to
execute, deliver, perform and observe the terms and conditions of the Borrower
Documents, and evidence of authority (including specimen signatures) for each
Person who, on behalf of the Borrower, signed this Agreement, will sign the
Note(s) and/or other Borrower Documents, or will otherwise act as the
Borrower's representative in the operation of the Credit. (ii) Evidence of the
authority of the Guarantor to execute, deliver, perform and observe the terms
and conditions of this Agreement and the Note(s) and evidence of the authority
(including specimen signatures) for each person who, on behalf of the
Guarantor, signed this Agreement, will endorse the Note(s), or will otherwise
act as the Guarantor's representative in the operation of the Credit.
(d) Legal Opinion. Opinions of legal counsel to Borrower and
Guarantor in the United States in substantially the forms of Annexes C and D,
respectively, and, if requested by Eximbank or the Lender, an opinion from
independent legal counsel selected by Eximbank or the Lender as to such
matters relating to this Agreement or the transaction contemplated hereby as
specified by Eximbank or the Lender.
(e) Appointment of Agent. Evidence that each of the Borrower and
the Guarantor has irrevocably appointed as its agent for service of process
the Person or Persons so specified in Section 11.03(a), and that each such
agent has accepted the appointment and has agreed to forward forthwith to the
Borrower or the Guarantor, as the case may be, all legal process addressed to
the Borrower or the Guarantor, as the case may be, received by such agent.
(f) Acquisition List. A list of the Items, containing with
respect to each Item: a brief description, the quantity, estimated invoice
cost, estimated date of shipment, Supplier's DUNS Numbers and product SIC
Codes.
(g) Purchase Contracts. A copy of the Purchase Contracts. If a
Purchase Contract provides for payments to the Supplier prior to completion
and delivery of any Item ("Progress Payments"), the schedule for such Progress
Payments, in Eximbank's reasonable judgment, must be reasonable and
consistent with industry and financial standards.
(h) Eximbank Guarantee Agreement. The fully executed Eximbank
Guarantee Agreement, which shall be in full force and effect.
(i) Note. A Note in the principal amount of the Credit shall have
been fully executed by the Borrower, endorsed by the Guarantor, and delivered
to the Lender, with a copy to Eximbank.
(j) Outside Counsel. Evidence that the reasonable fees and
out-of-pocket expenses due and payable to Porter & Hedges, L.L.P., counsel to
Lender, have been fully paid.
(k) No Event of Default. No Event of Default and no event which
but for the giving of notice or the lapse of time or both would constitute an
Event of Default exists at the time all the foregoing conditions have been
satisfied or waived.
(l) BP Certifications. Certifications from BP, as Project
operator, that the Joint Venture will continue to comply with international
environmental standards in the development of the Project.
(m) Indenture. A copy of the Indenture, including all amendments
and modifications thereto.
6.02 Conditions Precedent to Each Utilization. The obligation of
the Lender to permit any Utilization, including the first Utilization, shall
be subject to the delivery to the Lender and Eximbank of the documents
indicated below and to the fulfillment, as of the date of such Utilization, in
a manner satisfactory to the Lender and Eximbank, of the conditions set forth
below:
(a) This Agreement & Eximbank Guarantee Agreement. This Agreement
and the Eximbank Guarantee Agreement shall each continue to be in full force
and effect.
(b) Guarantor Guarantee. The Guarantor Guarantee, described in
Section 3, shall continue to be in full force and effect.
(c) No Restrictions. No law, regulation, ruling or other action
of any government, or political subdivision thereof, shall be in effect or
shall have occurred, the effect of which would be to prevent any party to this
Agreement from fulfilling its obligations.
(d) Utilization Documents. The Lender and Eximbank shall have
received the documents required under Annex B with respect to the requested
Utilization, including, without limitation, invoices, Suppliers' Certificates
and bills of lading, if applicable.
(e) Legal Opinions. If, since the date of the legal opinion
furnished pursuant to Section 6.01(d), there has been a change in
circumstances that could have a material adverse effect on the ability of the
Borrower or the Guarantor, as the case may be, to perform its obligations
hereunder or under the Note(s), Eximbank or the Lender may request
supplemental legal opinions with respect to the possible consequences of such
changed circumstances. Such supplemental opinions shall be dated as of the
date on which the Utilization was requested, be addressed and delivered to
Eximbank and the Lender and be in form and substance satisfactory to Eximbank
and the Lender.
(f) Fees and Expenses. Eximbank shall have been paid the Exposure
Fee, or arrangements satisfactory to Eximbank for the payment thereof shall
have been made. All other fees and expenses then due and payable under
Section 7 have been paid.
(g) Other Documents. Such other documents, certificates,
instruments or information relating to this Agreement or the Note(s) or the
transactions contemplated hereby as either the Lender or Eximbank may have
reasonably requested shall have been delivered in form and substance
satisfactory to Eximbank and the Lender.
(h) No Event of Default. No Event of Default and no event which
but for the giving of notice or the lapse of time or both would constitute an
Event of Default exists or will exist after giving effect to the requested
Utilization.
(i) Guarantee Certificate. Eximbank shall have issued a Guarantee
Certificate with respect to the requested Utilization.
(j) Certificate from BP. Except with respect to Items described
in Section 4.01 (a)(iii), BP shall have issued a certificate substantially in
the form of Exhibit 6 to Annex B.
(k) Certificate from Borrower. Except with respect to Items
described in Section 4.01 (a)(iii), the Borrower shall have issued a
certificate substantially in the form of Exhibit 7 to Annex B.
(l) Shared Disbursement Certificate. If applicable, the Borrower
and Ecopetrol shall have issued a certificate substantially in the form of
Exhibit 8 to Annex B.
SECTION 7. FEES AND EXPENSES
7.01 Fees
.
(a) The Borrower shall pay or cause to be paid to Eximbank the
following fees:
(i) a guarantee commitment fee ("Guarantee Commitment Fee") of
one-eighth of one percent (1/8%) per annum on the uncancelled and undisbursed
balance from time to time of the Credit, computed on the basis of the actual
number of days elapsed (including the first day but excluding the last), using
a 360-day year, accruing from September 7, 1994 to the Final Disbursement
Date, and payable on January 15 and July 15 of each year, beginning on January
15, 1995; and
(ii) no later than each Disbursement Date, an exposure fee (an
"Exposure Fee") equal to 3.38% of the amount of such Disbursement that
represents the Financed Portion of the Items.
(b) The Borrower shall pay or cause to be paid to the Lender the
following fees:
(i) with respect to Disbursements made under the Reimbursement
procedure, a document review fee equal to 0.10% of the principal amount of
such Disbursement, payable on the date of such Disbursement, by debit to the
Borrower's account with Lender.
(ii) an up-front structuring, underwriting, and servicing fee of
$150,000 plus out of pocket expenses, payable on the date of the first
Utilization of the Credit.
7.02 Taxes
(a) The Borrower and the Guarantor each agrees to pay all amounts
owing by it under this Agreement or the Note(s) free and clear of and without
deduction or withholding for or on account of any Taxes.
(b) The Borrower and the Guarantor each further agrees:
(i) that, if the Borrower or the Guarantor, as the case may be, is
prevented by operation of law from paying any such Taxes or any such Taxes are
required to be deducted or withheld, then the interest, fees or expenses
required to be paid under this Agreement or the Note(s) shall, on an after-tax
basis, be increased by the amount necessary to yield to the Lender or
Eximbank, as the case may be, interest, fees or expenses in the amounts
provided for in this Agreement or the Note(s) after the provision for the
payment of all such Taxes;
(ii) that the Borrower and/or the Guarantor shall, at the request
of either the Lender or Eximbank, execute and deliver to the Lender or
Eximbank, as the case may be, such further instruments as may be necessary
or desirable to effect the payment of the increased amounts as provided for
in subsection (i) above, including new Note(s) to be issued by the Borrower
and endorsed by the Guarantor in exchange for any Note(s) previously issued;
(iii) that the Borrower and the Guarantor shall hold the Lender and
Eximbank harmless from and against any liabilities with respect to any Taxes
(whether or not properly or legally asserted); and
(iv) that, at the request of either the Lender or Eximbank, the
Borrower or the Guarantor, as the case may be, shall provide the Lender and
Eximbank, within the later of thirty (30) days after such request or thirty
(30) days after the actual payment of such Taxes, with the original or a
certified copy of evidence of the payment of any Taxes by the Borrower or the
Guarantor, or, if no Taxes have been paid, provide the Lender and Eximbank, at
the request of either the Lender or Eximbank, with a certificate from the
appropriate taxing authority or an opinion of counsel acceptable to the Lender
and Eximbank stating that no Taxes are payable.
(c) The Lender agrees to use reasonable efforts (consistent with its
internal policies and applicable law) to make, carry, maintain, or transfer
any loans with such of its affiliates or branch offices as will eliminate or
reduce to the extent possible any applicable tax liability under this Section
7.02 (provided that the Lender shall not be required to do so if, in the
reasonable judgment of the Lender, such change would be disadvantageous to
it).
(d) Notwithstanding anything to the contrary contained herein, the
agreements in this Section 7.02 shall survive the termination of this
Agreement and the payment of the Note(s) and all other amounts due hereunder.
7.03 Expenses. The Borrower agrees, whether or not the
transactions hereby contemplated shall be consummated, to pay, or reimburse
the Lender and Eximbank, respectively, promptly upon demand for the payment of
all reasonable and duly documented costs and expenses arising in connection
with the preparation, printing, execution, delivery, registration,
implementation, modification of or waiver or consent under, the Borrower
Documents and the Eximbank Guarantee Agreement and the transactions
contemplated thereby, including, without limitation, the reasonable and duly
documented out-of-pocket expenses of the Lender and Eximbank (incurred in
respect of telecommunications, mail or courier service, travel and the like),
the fees and expenses of counsel for the Lender and/or Eximbank, and all Taxes
(including, without limitation, interest and penalties, if any) which may be
payable in respect of the Borrower Documents and the Eximbank Guarantee
Agreement. The Borrower shall also pay all of the costs and expenses
(including, without limitation, the fees and expenses of counsel and all
Taxes) incurred by or charged to the Lender or Eximbank in connection with the
amendment or enforcement of any of the Borrower Documents or the protection or
preservation of any right or claim of the Lender or Eximbank arising out of
any of the Borrower Documents.
7.04 Additional or Increased Costs
(a) If, due to any Regulatory Change that: (i) changes the basis of
taxation of any amounts payable to the Lender (other than taxes imposed on the
overall net income of the Lender or of the office out of which it is acting
hereunder); (ii) imposes or modifies any Reserve/Premium Requirements
affecting the Lender; or (iii) imposes any other condition affecting this
Agreement or the Note(s), there shall be any increase in the cost to the
Lender of agreeing to make or making, funding or maintaining any Utilization,
then the Borrower shall from time to time, upon demand by the Lender, pay to
the Lender additional amounts sufficient to compensate the Lender for such
increased cost.
(b) Without duplication of Section 7.04(a), if the Lender, in its
reasonable judgment, determines at any time that any Regulatory Change will
have the effect of increasing the amount of capital required or expected to be
maintained by the Lender (which term, for purposes of this Section 7.04(b),
shall include any corporation controlling the Lender) based on the existence
of the Lender's obligations hereunder, then the Borrower shall pay to the
Lender, upon demand by the Lender, such additional amounts as shall be
required to compensate the Lender for the increased cost to the Lender as a
result thereof (which compensation shall include, without limitation, an
amount equal to any reduction in return on assets or equity of the Lender to a
level below that which it could have achieved but for such Regulatory Change,
taking into account the Lender's policies as to capital adequacy).
(c) "Regulatory Change" shall mean the introduction or change after
the date of this Agreement of or in United States or foreign national, state,
municipal laws or regulations (including any statute, treaty, rule, order,
writ, injunction, decree, judgment, or judicial opinion of any court or
tribunal) or in the interpretation or administration thereof, or the adoption
or making after such date of any directives, requirements, or requests
(whether or not having the force of law) by any United States or foreign
national, state, or municipal court or governmental or monetary authority.
(d) The Lender shall take such reasonable steps as it shall determine
in its sole discretion to minimize amounts demanded under this Section 7.04.
In the event that the Lender transfers the booking office of the Credit to
minimize amounts demanded under this Section 7.04, any costs and expenses
incurred in such transfer shall be paid by the Borrower.
(e) Each demand for payment by the Lender under this Section 7.04
shall be accompanied by a certificate showing in reasonable detail the basis
for the calculation of the amounts demanded, which certificate, in the absence
of manifest error, shall be conclusive and binding for all purposes.
SECTION 8. PAYMENTS
8.01 Method of Payment
.
(a) All payments to be made by the Borrower or the Guarantor under
this Agreement and the Note(s) shall be made without set-off or counterclaim
in Dollars in immediately available and freely transferable funds no later
than 11:00 A.M. (New York City time) on the date on which due (as applicable):
(i) to the Lender at its office in Charlotte, North Carolina, U.S.A.
for credit to account number ABA 053000196, A/C 136621/22506; and
(ii) to Eximbank at the Federal Reserve Bank of New York for credit
to Eximbank's account: U.S. Treasury Department 021030004 TREAS
NYC/CTR/BNF=/AC-4984 OBI=Export-Import Bank Due ______________ on EIB
Guarantee No. AP065758XX-Colombia from [___________].
(b) Except as otherwise provided herein, whenever any payment would
otherwise fall due on a day which is not a Business Day, the due date for
payment shall be the immediately succeeding Business Day and interest and fees
shall be computed in accordance with Section 12.01.
8.02 Application of Payments. Except as provided in Section 5.04
regarding prepayments, the Lender and Eximbank shall each apply payments
received by it under this Agreement or the Note(s) (whether at stated
maturity, by reason of acceleration, prepayment or otherwise), including
without limitation any payments under the Guarantor Guarantee, in the
following order of priority: (i) interest due pursuant to Section 5.02(a)(ii),
but only to the extent such amounts are included in the "Guaranteed Amount" as
such term is defined in the Eximbank Guarantee Agreement; (ii) commitment
fees, Exposure Fees and all other amounts due to Eximbank under this
Agreement; (iii) interest due pursuant to Section 5.02(a)(i); (iv)
installments of principal due; and (v) all other amounts due under this
Agreement and not otherwise provided for in this Section 8.02. Payments with
respect to the Note(s) shall be applied pro rata to each Note in
accordance with the above priorities.
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS
9.01 Representations and Warranties of the Borrower. The Borrower
represents and warrants to the Lender and Eximbank that:
(a) Existence and Authority. The Borrower is duly organized and
validly existing under the laws of Delaware, with full power, authority and
legal right to own its property and carry on its business as now conducted,
and has taken all actions necessary or advisable to authorize it to execute,
deliver, perform and observe the terms and conditions of the Borrower
Documents.
(b) Government Authorizations. All consents, licenses,
authorizations and approvals of, and exemptions by, any Governmental Authority
that are necessary or advisable for the execution,delivery, performance of the
Purchase Contracts and the importation and use of the Items in Colombia, have
been obtained by the Joint Venture and are in full force and effect.
(c) Recordation. To ensure the legality, validity,
enforceability, priority or admissibility in evidence in the state of New York
of any of the Borrower Documents, it is not necessary that any of the Borrower
Documents be registered, recorded, enrolled or otherwise filed with any court
or other Governmental Authority, or be notarized, or that any documentary,
stamp or other similar tax, imposition or charge of any kind be paid on or in
respect of any of the Borrower Documents.
(d) Restrictions. The execution, delivery and performance or
observance by the Borrower of the terms of, and consummation by the Borrower
of the transactions contemplated by, each of the Borrower Documents does not
and will not conflict with or result in a breach or violation of: (i) the
charter, by-laws or similar documents of the Borrower; (ii) any law of the
United States or any other ordinance, decree, constitutional provision,
regulation or other requirement of any Governmental Authority (including,
without limitation, any restriction on interest that may be paid by the
Borrower); or (iii) any order, writ, injunction, judgment or decree of any
court or other tribunal. Further, the execution, delivery and performance or
observance by the Borrower of the terms of, and consummation by the Borrower
of the transactions contemplated by, each of the Borrower Documents does not
and will not conflict with or result in a breach of any agreement or
instrument to which the Borrower is a party, or by which it or any of its
revenues, properties or assets may be subject, or result in the creation or
imposition of any Lien upon any of the revenues, properties or assets of the
Borrower pursuant to any such agreement or instrument.
(e) Binding Effect. This Agreement and the other Borrower
Documents which have been executed on or before the date hereof have been duly
executed and delivered by the Borrower. Each of the Borrower Documents which
has been executed and delivered constitutes, and each of the Borrower
Documents which may hereafter be executed and delivered will constitute, a
direct, general and unconditional obligation of the Borrower which is legal,
valid and binding upon the Borrower and enforceable against the Borrower in
accordance with its respective terms, except as such enforceability may be
limited by applicable insolvency, reorganization, liquidation, moratorium,
readjustment of debt or other similar laws affecting the enforcement of
creditors' rights generally and by the application of general principles of
equity regardless of whether such enforceability is considered in a proceeding
at law or in equity. The Borrower's payment obligations under this Agreement
rank, and under the Note(s), when issued, will rank, in all respects at least
pari passu in priority of payment and in right of security with all other
unsecured debt of the Borrower.
(f) Choice of Law. The choice of law provisions of this
Agreement and the Note(s) are valid, binding and not subject to revocation by
the Borrower, and in any proceeding brought outside of the State of New York,
the choice of law of the State of New York as the governing law of such
documents will be recognized and such law will be applied.
(g) Legal Proceedings. No legal proceedings are pending or, to
the best of the Borrower's knowledge, threatened before any court or
governmental agency which might: (i) materially and adversely affect the
Borrower's financial condition, business or operations; (ii) restrain or
enjoin or have the effect of restraining or enjoining the performance or
observance of the terms and conditions of any of the Borrower Documents; or
(iii) in any other manner question the validity, binding effect or
enforceability of any of the Borrower Documents.
(h) Purchase Contracts. The Purchase Contracts do not, and the
Borrower's performance of its obligations under the Purchase Contracts will
not, violate any applicable law of the United States or Colombia.
(i) Use of Items. The Items will be used for lawful purposes.
(j) Borrower Financial Statements. The Borrower Financial
Statements present fairly the financial condition of the Borrower at the date
of such statements and the results of the operations of the Borrower for such
fiscal year. The Borrower Financial Statements reflecting the Borrowers full
consolidated operations have been prepared in accordance with generally
accepted accounting principles in the United States consistently applied as
described in Section 9.02(b). Except as fully reflected in the Borrower
Financial Statements, there are no liabilities or obligations with respect to
the Borrower of any nature whatsoever (whether absolute, accrued, contingent
or otherwise and whether or not due) for the period to which the Borrower
Financial Statements relate that, either individually or in the aggregate,
would be material to the Borrower. Since the date of the Borrower Financial
Statements, there has been no material adverse change in the financial
condition, business, prospects or operations of the Borrower.
(k) No Taxes. There is no Tax imposed on or in connection with:
(i) the execution, delivery or performance of any of the Borrower Documents;
(ii) the enforcement of any of the Borrower Documents; or (iii) on any payment
to be made to the Lender or Eximbank under any of the Borrower Documents.
The representations and warranties of the Borrower set forth in this Section
9.01 shall be deemed repeated as of the date of each Utilization, with the
same force and effect as if made on such date.
9.02 Affirmative Covenants of the Borrower
. The Borrower covenants and agrees that until all amounts owing under this
Agreement and the Note(s) have been paid in full, the Borrower will, unless
the Lender and Eximbank shall have consented in writing:
(a) Notice of Defaults. Promptly but in no event later than ten
(10) days after the occurrence of an Event of Default or of any event which
but for the giving of notice or the lapse of time or both would constitute an
Event of Default, notify the Lender and Eximbank by telecopier or hand
delivery of the particulars of such occurrence and the corrective action
proposed to be taken by the Borrower with respect thereto.
(b) Financial Reports. Beginning with the fiscal year in which
this Agreement is executed and continuing until all amounts owing under this
Agreement and the Note(s) have been paid in full, furnish to the Lender and
Eximbank, (i) within 180 days after the end of its fiscal year, a copy of its
unaudited consolidated financial statements, including its balance sheet,
statement of income, and statement of cash flow, for that fiscal year, all of
which shall be prepared in accordance with generally accepted accounting
principles in the United States consistently applied, shall be in the English
language, shall fairly present the financial condition of the Borrower and the
results of operation for the periods covered, and shall be certified as true
and correct by an authorized officer of the Borrower, and (ii) within 270 days
after the end of its fiscal year, a copy of its local branch statutory annual
financial statements, including its balance sheet, and statement of income for
that fiscal year, all of which shall have been audited by Price Waterhouse or
any of the largest six internationally recognized accounting firms based in
the U.S., shall be prepared in accordance with generally accepted accounting
principles in Colombia consistently applied, shall be accompanied by an
accurate English translation, shall include any accompanying notes, and shall
fairly present the financial condition of the Borrowers local branch and the
results of its operations for the periods covered. The Borrower agrees to
submit to the Lender and Eximbank such additional financial reports and other
data and information regarding its financial condition, business and
operations as the Lender or Eximbank may reasonably request.
(c) Inspections. Upon reasonable notice, permit representatives
of the Lender and Eximbank to make reasonable inspections of the Project
using or incorporating the Items and of the Borrower's books and records in
connection with this Agreement and the transactions contemplated hereby, and
cause the Borrower's officers and employees to give full cooperation and
assistance in connection therewith.
(d) Notice of Disputes. Promptly give written notice to the
Lender and Eximbank of any material dispute which may exist between the
Borrower and (i) the Guarantor, (ii) any governmental agency or regulatory
body thereof, or (iii) any international financial institutions.
(e) Government Authorizations. Insure that the Joint Venture
promptly obtains and maintains all consents, licenses, authorizations and
approvals of, and exemptions by, any Governmental Authority that are necessary
or advisable for the execution, delivery, and performance of the Purchase
Contracts and the importation and use of the Items in Colombia.
(f) Pari Passu. Ensure that its payment obligations under this
Agreement and the Note(s) will at all times constitute the direct, general and
unconditional obligations of the Borrower and rank in all respects at least
pari passu in priority of payment and in right of security with all other
unsecured debt of the Borrower.
(g) Acquisition List. Obtain the prior written consent of the
Lender and Eximbank to any material alteration of the acquisition list
furnished pursuant to the provisions of Section 6.01(g).
(h) Purchase Contracts. Obtain the prior written consent of the
Lender and Eximbank to any assignment of the Borrower's rights or obligations
under any Purchase Contract or to any material modification to or cancellation
of any Purchase Contract.
(i) Other Acts. From time to time, do and perform any and all
acts and execute any and all documents as may be necessary or as reasonably
requested by the Lender or Eximbank in order to effect the purposes of this
Agreement and to protect the interests of the Lender and Eximbank in the
Note(s) and the interests of the Lender in the Eximbank Guarantee.
9.03 Negative Covenants of the Borrower. The Borrower covenants
and agrees that until all amounts owing under this Agreement and the Note(s)
have been paid in full, it will not, without the prior written consent of the
Lender and Eximbank:
(a) Liens on Items. Create, assume, permit or suffer to exist any
Liens on any of the Items, except Liens permitted by the Indenture (each, a
"Permitted Lien).
(b) Sale, Lease or Transfer of Items. Permit any Item to be used
for any purpose other than in connection with the development of the Project,
or permit the sale, lease or transfer, or agreement to sell, lease or
transfer, any Item or a component of any Item essential to the development or
operation of the Project (unless replaced by equivalent components).
(c) Use of the Items. Use, or permit the use of, the Items outside
Colombia.
(d) Change in Business. Make any substantial change in the scope
or nature of its business or operations unless permitted by the Indenture.
(e) Merger, Consolidation, Dissolution and Sale. Except as
permitted by the Indenture, merge or consolidate with any other entity;
dissolve or terminate its legal existence; sell, lease, transfer or otherwise
dispose of any substantial part of its properties or any of its properties
essential to the conduct of its business or operations, as now or hereafter
conducted; or enter into any agreement to do any of the foregoing.
9.04 Representations and Warranties of the Guarantor. The
Guarantor represents and warrants to the Lender and Eximbank that:
(a) Existence and Authority. The Guarantor is duly organized and
validly existing under the laws of Delaware, with full power, authority and
legal right to own its property and carry on its business as now conducted.
The Guarantor has taken all actions necessary or advisable to authorize it to
execute, deliver, perform and observe the terms and conditions of this
Agreement and the Note(s).
(b) Recordation. To ensure the legality, validity,
enforceability, priority or admissibility in evidence in the state of New York
of this Agreement and the Note(s), it is not necessary that this Agreement or
the Note(s) be registered, recorded, enrolled or otherwise filed with any
court or other Governmental Authority, or be notarized, or that any
documentary, stamp or other similar tax, imposition or charge of any kind be
paid on or in respect of this Agreement or the Note(s).
(c) Restrictions. The execution, delivery and performance or
observance by the Guarantor of the terms of, and consummation by the Guarantor
of the transactions contemplated by, each of this Agreement and the Note(s),
does not and will not conflict with or result in a breach or violation of: (i)
the charter, by-laws or similar documents of the Guarantor; (ii) any law of
the United States or any other ordinance, decree, constitutional provision,
regulation or other requirement of any Governmental Authority (including,
without limitation, any restriction on interest that may be paid); or (iii)
any order, writ, injunction, judgment or decree of any court or other
tribunal. Further, the execution, delivery and performance or observance by
the Guarantor of the terms of this Agreement and the Note(s) does not and will
not conflict with or result in a breach of any agreement or instrument to
which the Guarantor is a party, or by which it or any of its revenues,
properties or assets may be subject, or result in the creation or imposition
of any Lien upon any of the revenues, properties or assets of the Guarantor
pursuant to any such agreement or instrument.
(d) Binding Effect; Senior Debt. This Agreement has been, and the
Note(s) when executed will be, duly executed and delivered by the Guarantor.
This Agreement constitutes, and the Note(s) when executed will constitute, a
direct, general and unconditional obligation of the Guarantor which is legal,
valid and binding upon the Guarantor and enforceable against the Guarantor in
accordance with its respective terms, except as such enforceability may be
limited by applicable insolvency, reorganization, liquidation, moratorium,
readjustment of debt or other similar laws affecting the enforcement of
creditors' rights generally and by the application of general principles of
equity regardless of whether such enforceability is considered in a proceeding
at law or in equity. The Guarantor's payment obligations under this
Agreement rank, and under the Note(s), when issued, will rank, in all respects
at least pari passu in priority of payment and in right of security with
all unsecured debt of the Guarantor. The debt obligations of the Guarantor
under this Agreement and evidenced by the Notes are and will be Senior
Indebtedness, as defined in the Indenture.
(e) Choice of Law. The choice of law provisions of this
Agreement and the Note(s) are valid, binding and not subject to revocation by
the Guarantor, and in any proceeding brought outside of the State of New York,
the choice of law of the State of New York as the governing law of such
documents will be recognized and such law will be applied.
(f) Legal Proceedings. No legal proceedings are pending or, to
the best of the Guarantor's knowledge, threatened before any court or
governmental agency which might: (i) materially and adversely affect the
Guarantor's financial condition, business or operations; (ii) restrain or
enjoin or have the effect of restraining or enjoining the performance or
observance of the terms and conditions of this Agreement or the Note(s); or
(iii) in any other manner question the validity, binding effect or
enforceability of this Agreement or the Note(s).
(g) Guarantor Financial Statements. The Guarantor Financial
Statements present fairly the financial condition of the Guarantor at the date
of such statements and the results of the operations of the Guarantor for such
fiscal year. The Guarantor Financial Statements have been prepared in
accordance with generally accepted accounting principles in the United States
consistently applied. Except as fully reflected in the Guarantor Financial
Statements, there are no liabilities or obligations with respect to the
Guarantor of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) for the period to which the Guarantor
Financial Statements relate that, either individually or in the aggregate,
would be material to the Guarantor. Since the date of the Guarantor Financial
Statements, there has been no material adverse change in the financial
condition, business, prospects or operations of the Guarantor.
(h) No Taxes. There is no Tax imposed on or in connection with:
(i) the execution, delivery or performance of this Agreement or the Note(s);
(ii) the enforcement of this Agreement or the Note(s); or (iii) on any payment
to be made to the Lender or Eximbank under this Agreement or the Note(s).
The representations and warranties of the Guarantor set forth in this Section
9.04 shall be deemed repeated as of the date of each Utilization, with the
same force and effect as if made on such date.
9.05 Affirmative Covenants of the Guarantor. The Guarantor
covenants and agrees that until all amounts owing under this Agreement and the
Note(s) have been paid in full, the Guarantor will, unless the Lender and
Eximbank shall have consented in writing:
(a) Notice of Defaults. Promptly but in no event later than ten
(10) days after the occurrence of an Event of Default, or of any event which
but for the giving of notice or the lapse of time or both would constitute an
Event of Default, notify the Lender and Eximbank by telecopier or hand
delivery of the particulars of such occurrence and the corrective action
proposed to be taken by the Guarantor with respect thereto.
(b) Financial Reports. Beginning with the fiscal year in which
this Agreement is executed and continuing until all amounts owing under this
Agreement and the Note(s) have been paid in full, furnish to the Lender and
Eximbank, within 180 days after the end of its fiscal year, a copy of its
annual consolidated financial statements, including its balance sheet,
statement of income, and statement of cash flow, for that fiscal year, all of
which shall have been audited by an independent accounting firm acceptable to
Eximbank. All financial reports to be submitted to the Lender or Eximbank
shall be prepared in accordance with generally accepted accounting principles
in the United States consistently applied, shall be in the English language
(or accompanied by an accurate English translation), shall include the
auditor's opinion and any accompanying notes, and shall fairly present the
financial condition of the Guarantor and the results of its operations for the
periods covered. The Guarantor agrees to submit to the Lender and Eximbank
such additional financial reports and other data and information regarding its
financial condition, business and operations as the Lender or Eximbank may
reasonably request. The Guarantor shall furnish to the Lender and Eximbank
true and correct copies of the Indenture and any modifications and amendments
thereto.
(c) Inspections. Upon reasonable notice, permit representatives
of the Lender and Eximbank to make reasonable inspections of the Guarantor's
books and records in connection with this Agreement, and cause the Guarantor's
officers and employees to give full cooperation and assistance in connection
therewith.
(d) Notice of Disputes. Promptly give written notice to the
Lender and Eximbank of any material dispute which may exist between the
Guarantor and (i) the Borrower, (ii) any governmental agency or regulatory
body thereof, or (iii) any international financial institutions.
(e) Pari Passu. Ensure that its payment obligations under this
Agreement and the Note(s) will at all times constitute the direct, general and
unconditional obligations of the Guarantor and rank in all respects at least
pari passu in priority of payment and in right of security with all other
unsecured debt of the Guarantor, and constitute Senior Indebtedness as defined
in the Indenture.
(f) Other Acts. From time to time, do and perform any and all
acts and execute any and all documents as may be necessary or as reasonably
requested by the Lender or Eximbank in order to effect the purposes of this
Agreement and to protect the interests of the Lender and Eximbank in the
Note(s) and the interests of the Lender in the Eximbank Guarantee.
(g) Government Authorizations. Promptly obtain and maintain all
consents, licenses, authorizations and approvals of, and exemptions by, any
Governmental Authority that are necessary or advisable (i) for the
execution, delivery, performance and observance by the Guarantor of this
Agreement and the Note(s); and (ii) for the validity, binding effect and
enforceability of this Agreement and the Note(s).
9.06 Negative Covenants of the Guarantor. The Guarantor covenants
and agrees that until all amounts owing under this Agreement and the Note(s)
have been paid in full, it will not, without the prior written consent of the
Lender and Eximbank
(a) Interference. Take any action which would prevent or
interfere with the observance and performance by the Borrower of any covenant,
agreement or obligation of the Borrower set forth in any of the Borrower
Documents.
(b) Subrogation. Exercise any rights of subrogation which it may
acquire due to its payment of the Borrower's obligations pursuant to the
Guarantor Guarantee unless and until all sums payable under this Agreement and
the Note(s) have been paid in full, and if any payment shall be made to the
Guarantor on account of such rights of subrogation, it shall promptly pay such
amount to the Lender.
(c) Change in Business. Make any substantial change in the scope
or nature of its business or operations, except as previously disclosed to
Eximbank and the Lender prior to the date of this Agreement, and except as
permitted by the Indenture.
(d) Merger, Consolidation, Dissolution and Sale. Except as
permitted by the Indenture or except as previously disclosed to Eximbank and
the Lender prior to the date of this Agreement, merge or consolidate with any
other entity; dissolve or terminate its legal existence; sell, lease, transfer
or otherwise dispose of any substantial part of its properties or any of its
properties essential to the conduct of its business or operations, as now or
hereafter conducted; or enter into any agreement to do any of the foregoing.
SECTION 10. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT
10.01 Cancellation by the Borrower. The Borrower may cancel at
any time all or any part of the undisbursed and uncancelled amount of the
Credit for which Letters of Credit have not been issued, advised or confirmed,
provided that: (i) thirty (30) days' prior written notice is given to the
Lender and Eximbank; and (ii) the Borrower shall have paid to the Lender any
commitment fees accrued and unpaid under Section 7.01(b) and all other amounts
due and payable under this Agreement as of the proposed date of cancellation.
10.02 Suspension and Cancellation by Eximbank. If an Event of
Default should occur and be continuing, Eximbank, by written notice to the
Lender, the Borrower and the Guarantor, may: (i) suspend further Utilizations
of the Credit until Eximbank is satisfied that the cause of such suspension
has been removed; or (ii) cancel the unutilized and uncancelled amount of the
Credit,provided, however, that Eximbank shall not suspend or cancel any
portion of the Credit for which Letters of Credit have been issued, advised or
confirmed. In the event of a cancellation of all or part of the Credit by
Eximbank, the Borrower shall pay to the Lender and Eximbank, respectively, all
commitment fees accrued and unpaid under Section 7.01 and all other amounts
due and payable under this Agreement as of such date.
10.03 Events of Default. Upon the occurrence of any of the
following events or conditions (each, an "Event of Default"):
(a) any failure by the Borrower to pay when due any amount owing
under this Agreement or any Note; or
(b) any failure by the Borrower or the Guarantor to comply with its
obligations under Sections 9.02(a) or 9.05(a), respectively; or
(c) any representation or warranty made or deemed made by the
Borrower or the Guarantor in this Agreement or in connection herewith, or any
statement made in any certificate, report or financial statement furnished by
the Borrower or the Guarantor to the Lender or Eximbank or any statement made
in the legal opinions of the Borrower or the Guarantor concerning facts
relating to the Borrower or the Guarantor, as the case may be, or the
transactions contemplated hereby, has proven to have been false or misleading
in any material respect when made; or
(d) any failure by the Borrower or the Guarantor to perform or comply
with any of the covenants or provisions set forth in this Agreement (exclusive
of any events specified as an Event of Default in any other subsection of this
Section 10.03), which failure, if capable of being cured, remains uncured for
a period of thirty (30) days after written notice thereof has been given to
the Borrower or the Guarantor, as the case may be, by the Lender or Eximbank;
or
(e) any failure by the Borrower to pay when due, including any period
of grace provided to the Borrower with respect thereto, any amounts in excess
of $5,000,000 in the aggregate payable under any other agreement or instrument
providing for the payment by the Borrower of borrowed money or for the
deferred purchase price of property or services received, or any such amounts
in excess of $5,000,000 in the aggregate have, prior to the stated maturity
thereof, become due, or any event specified in any such agreement or
instrument shall occur the effect of which event is to cause, or (with the
giving of notice or lapse of time or both) to permit any Person to cause, such
amounts to become due, or to be repaid in full, prior to their stated
maturity; or
(f) any failure by the Guarantor to pay when due, including any
period of grace provided to the Guarantor with respect thereto, any amounts in
excess of $5,000,000 in the aggregate payable under any other agreement or
instrument providing for the payment by the Guarantor of borrowed money or for
the deferred purchase price of property or services received, or any such
amounts in excess of $5,000,000 in the aggregate have, prior to the stated
maturity thereof, become due, or any event specified in any such agreement or
instrument shall occur the effect of which event is to cause,or (with the
giving of notice or lapse of time or both) to permit any Person to cause, such
amounts to become due, or to be repaid in full, prior to their stated
maturity; or
(g) either the Borrower or the Guarantor shall be unable to pay its
debts as they fall due or shall admit in writing its inability to pay its
debts as they fall due or shall become insolvent; or the Borrower or the
Guarantor shall apply for or consent to the appointment of any liquidator,
receiver, trustee or administrator for all or a substantial part of its
business, properties, assets or revenues; or a liquidator, receiver, trustee
or administrator shall be appointed for the Borrower or the Guarantor and such
appointment shall continue undismissed, undischarged or unstayed for a period
of sixty (60) days; or the Borrower or the Guarantor shall institute (by
petition, application, answer, consent or otherwise) any bankruptcy,
arrangement, readjustment of debt, dissolution, liquidation or similar
executory or judicial proceeding; or a bankruptcy, arrangement, readjustment
of debt, dissolution, liquidation or similar executory or judicial proceeding
shall be instituted against the Borrower or the Guarantor and shall remain
undismissed, undischarged or unstayed for a period of sixty (60) days; or
(h) any involuntary Lien other than Permitted Liens shall have been
created upon the property of the Borrower or the Guarantor in an amount that,
in the reasonable judgment of Eximbank, if the Borrower or the Guarantor, as
the case may be, were required to pay such amount, would affect materially and
adversely the ability of the Borrower or the Guarantor, as the case may be,
to pay its indebtedness under this Agreement or any Note, and such Lien has
not been removed or discharged for a period of thirty (30) days from the date
of its creation; or
(i) any judgment against the Borrower or the Guarantor shall have
been entered on a claim not covered by insurance in an amount which, in the
reasonable judgment of Eximbank, if the Borrower or the Guarantor, as the case
may be, were required to pay such amount, would affect materially and
adversely the ability of the Borrower or the Guarantor, as the case may be, to
pay its indebtedness under this Agreement or any Note, and such judgment has
remained unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a
period of thirty (30) days from the date of its entry; or
(j) any governmental authority shall have: (x) condemned, seized or
expropriated all or substantially all of the property of the Borrower or the
Guarantor; or (y) taken any action which, in the reasonable judgment of
Eximbank, would affect materially and adversely the Borrower's or the
Guarantor's ability to pay its indebtedness under this Agreement or any Note;
or
(k) any authorization, approval, consent, license, exemption, filing,
registration, notarization or other requirement of any governmental, judicial
or public body or authority necessary to enable the Borrower or the Guarantor
to comply with its obligations hereunder or under any Note shall have been
revoked, rescinded, suspended, held invalid or otherwise limited in effect in
a manner that would affect materially and adversely the Borrower's or the
Guarantor's respective ability to perform its obligations hereunder or under
any Note; or any law, rule or regulation, decree or directive of any competent
authority shall be enacted or issued that shall impair materially and
adversely the ability or the right of the Borrower or the Guarantor, as the
case may be, to perform such obligations; or it shall become unlawful for
the Borrower or the Guarantor to perform any such obligations; or
(l) the Purchase Contract, or the performance by any party thereto of
such party's obligations under the Purchase Contract, in the reasonable
judgment of Eximbank, contravenes any applicable law; or
(m) the Guarantor repudiates the Guarantor Guarantee or the Guarantor
Guarantee ceases for any reason to be in full force and effect;
(n) any declaration of an Event of Default under the Indenture; or
(o) any other event occurs or any other circumstance arises which, in
the reasonable judgment of Eximbank, is likely materially and adversely to
affect the ability of the Borrower or the Guarantor to perform all or any of
its obligations under this Agreement or under any Note;
then, and in any such event, and at any time thereafter, if such event is
continuing, Eximbank, by written notice to the Borrower, the Guarantor and the
Lender, may declare immediately due and payable (i) all or any portion of the
principal amount of the Credit and the Note(s) then outstanding, including
accrued interest thereon to the date of payment, and all other amounts owing
under this Agreement. Except as expressly provided above in this Section
10.03, presentment, demand, protest and all other notices of any kind are
hereby expressly waived. The aforementioned right to accelerate is in
addition to and not a substitute for any other rights and remedies available
to the Lender and/or Eximbank under this Agreement and the Note(s) and under
applicable laws.
SECTION 11. GOVERNING LAW AND JURISDICTION
11.01 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, U.S.A.
11.02 Submission to Jurisdiction. The Borrower and the Guarantor
hereby each irrevocably agrees that any legal suit, action or proceeding
arising out of or relating to any of the Borrower Documents, or any of the
transactions contemplated thereby, may be instituted by the other parties
hereto or any party to any Borrower Document in the Courts of the State of New
York or the Federal Courts sitting in the Borough of Manhattan, City of New
York, State of New York. The Borrower and the Guarantor hereby each
irrevocably waives, to the fullest extent permitted by law, any objection
which the Borrower or the Guarantor, as the case may be, may have now or
hereafter to the laying of the venue or any objection based on forum non
conveniens, or based on the grounds of jurisdiction with respect to any such
legal suit, action or proceeding, and irrevocably submits generally and
unconditionally to the jurisdiction of any such court in any such suit, action
or proceeding. The Borrower and the Guarantor each agrees that a judgment,
after exhaustion of all available appeals, in any such action or proceeding
shall be conclusive and binding upon the Borrower or the Guarantor, as the
case may be, by suit upon such judgment, a certified copy of which shall be
conclusive evidence of the judgment.
11.03 Service of Process
(a) In the case of the Courts of the State of New York or of the
Federal Courts sitting in the State of New York, the Borrower and the
Guarantor each hereby designates, appoints and empowers CT Corporation System,
1623 Broadway, New York, New York 10019, as its authorized agent to accept,
receive and acknowledge, for and on behalf of the Borrower and the Guarantor,
respectively, its properties and revenues, service of any and all process
which may be served in any action, suit or proceeding of the nature referred
to above in the State of New York, which appointment shall be irrevocable
until the appointment and acceptance of a successor authorized agent pursuant
to the provisions of Section 11.03(d).
(b) The Borrower and the Guarantor each further agrees that such
service of process may be made personally or by mailing or delivering a copy
of the summons and complaint or other legal process in any such legal suit,
action or proceeding to the Borrower or the Guarantor, as the case may be, in
care of its agent designated above at the aforesaid address, and such agent is
hereby authorized to accept, receive and acknowledge the same for and on
behalf of the Borrower or the Guarantor, as the case may be, and to admit
service with respect thereto. Service upon such agent shall be deemed to be
personal service on the Borrower or the Guarantor, as the case may be, and
shall be legal and binding upon the Borrower and the Guarantor, as the case
may be, for all purposes notwithstanding any failure to mail copies of such
legal process to the Borrower or the Guarantor, as the case may be, or any
failure on the part of the Borrower or the Guarantor, as the case may be, to
receive the same, and shall be deemed completed upon the delivery thereof to
such agent whether or not such agent shall give notice thereof to the Borrower
or the Guarantor, as the case may be, or upon the earliest other date
permitted by applicable law.
(c) To the extent permitted by applicable law, the Borrower and the
Guarantor each further irrevocably agrees to the service of process of any of
the aforementioned courts in any suit, action or proceeding by the mailing of
copies thereof by certified mail, postage prepaid, return receipt requested,
to the Borrower or the Guarantor, as the case may be, at the address
referenced in Section 12.02, such service to be effective upon the date
indicated on the postal receipt returned from the Borrower or the Guarantor,
as the case may be.
(d) The Borrower and the Guarantor each agrees that it will at all
times continuously maintain an agent to receive service of process in the
State of New York on behalf of itself and its properties and revenues, and, in
the event that for any reason its agent mentioned above shall not serve as
agent for the Borrower or the Guarantor, as the case may be, to receive
service of process in the State of New York on its behalf, the Borrower or the
Guarantor, as the case may be, shall promptly appoint a successor satisfactory
to the Lender and Eximbank so to serve, advise the Lender and Eximbank
thereof, and deliver to the Lender and Eximbank evidence in writing of the
successor agent's acceptance of such appointment. The foregoing
provisions constitute, among other things, a special arrangement for service
between the parties to this Agreement for the purposes of 28 U.S.C. Section
1608.
11.04 Waiver of Immunity. The Borrower and the Guarantor hereby
each irrevocably agrees that, to the extent that the Borrower or the
Guarantor, as the case may be, or any of its assets has or may hereafter
acquire any right of immunity, whether characterized as sovereign immunity or
otherwise, from any legal proceedings, whether in the United States or
elsewhere, to enforce or collect upon the Credit or the Note(s) or any other
liability or obligation of the Borrower or the Guarantor related to or arising
from the transactions contemplated by any of the Borrower Documents,
including, without limitation, immunity from service of process, immunity from
jurisdiction or judgment of any court or tribunal, immunity from execution of
a judgment, and immunity of any of its property from attachment prior to any
entry of judgment, or from attachment in aid of execution upon a judgment, the
Borrower and the Guarantor each hereby expressly and irrevocably waives any
such immunity and agrees not to assert any such right or claim in any such
proceeding, whether in the United States or elsewhere.
11.05 Waiver of Security Requirements. To the extent the Borrower
and the Guarantor may, in any action or proceeding arising out of or relating
to any of the Borrower Documents brought in the United States or elsewhere, be
entitled under applicable law to require or claim that the Lender or Eximbank
post security for costs or take similar action, the Borrower and the Guarantor
hereby each irrevocably waives and agrees not to claim the benefit of such
entitlement.
11.06 No Limitation. Nothing in this Section 11 shall affect the
right of the Lender or Eximbank to serve process in any other manner permitted
by law or to commence legal proceedings or otherwise proceed against the
Borrower or the Guarantor in the United States or in any other jurisdiction.
SECTION 12. MISCELLANEOUS
12.01 Computations. Each determination of an interest rate or fee
by the Lender or Eximbank pursuant to any provision of this Agreement or the
Note(s), in the absence of manifest error, shall be conclusive and binding on
the Borrower and the Guarantor. All computations of interest and fees
hereunder and under the Note(s) shall be made on the basis of a year of 360
days and actual days elapsed. All such calculations shall include the first
day and exclude the last day of the period of calculation.
12.02 Notices. Except as otherwise specified, all notices given
hereunder shall be in writing in the English language, shall include the
applicable Eximbank guarantee number and shall be given by mail, telecopier,
tested telex or personal delivery and shall be deemed to be given for the
purposes of this Agreement on the day that such notice is received by the
intended recipient thereof, except for notices given by Eximbank pursuant to
Section 10, which shall be deemed given on the earlier of: (i) the day on
which such notice is received by the intended recipient; or (ii) the day on
which such notice is deposited in the mail or sent by telecopier, tested
telex or personal delivery. Unless otherwise specified in a notice
delivered in accordance with this Section 12.02, all notices shall be
delivered to the parties hereto at their respective addresses indicated on
the Term Sheet.
12.03 Disposition of Indebtedness. With the prior written consent
of the Borrower (such consent not to be unreasonably withheld), the Lender may
sell, assign, transfer, pledge, negotiate, grant participations in or
otherwise dispose of all or any part of its interest in all or any part of the
Borrower's indebtedness under this Agreement and the Note(s) to any party
(collectively, a "Disposition of Indebtedness"), and any such party shall
enjoy all the rights and privileges of the Lender under this Agreement and the
Note(s); provided, however, that such Disposition of Indebtedness shall not
relieve the Lender of its duties under this Agreement or the Eximbank
Guarantee Agreement without the prior written consent of Eximbank. The
Borrower and the Guarantor shall, at the request of the Lender, execute and
deliver to the Lender, or to any party that the Lender may designate, any such
further instruments as may be necessary or desirable to give full force and
effect to a Disposition of Indebtedness by the Lender. Notwithstanding
anything to the contrary contained herein, neither the Borrower nor the
Guarantor may assign or otherwise transfer any of its debts or obligations
under this Agreement or the Note(s) without the prior written consent of
Eximbank and the Lender.
12.04 Benefit of Agreement. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto.
12.05 Termination of Eximbank Guarantee. In the event the
Eximbank Guarantee terminates in its entirety pursuant to terms and conditions
of the Eximbank Guarantee Agreement, as of the date of termination, the rights
of Eximbank under Section 10 shall automatically be deemed to have been
assigned to the Lender.
12.06 Disclaimer; Indemnification. Neither Eximbank nor the
Lender shall be responsible in any way for the performance of the Purchase
Contracts, and no claim against the Supplier or any other person with respect
to the performance of the Purchase Contracts will affect the obligations of
the Borrower or the Guarantor under any of the Borrower Documents.
12.07 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Lender or Eximbank in exercising any right, power or privilege
under this Agreement or the Note(s) and no course of dealing between or among
the Borrower, the Guarantor, the Lender and/or Eximbank shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under the Note(s) preclude any other right, power or
privilege hereunder or thereunder. The rights and remedies expressly provided
herein are cumulative and not exclusive of any rights or remedies which the
Lender or Eximbank would otherwise have. No notice to or demand on the
Borrower or the Guarantor in any case shall entitle the Borrower or the
Guarantor, as the case may be, to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Lender or Eximbank to any other or further action in any circumstances without
notice or demand.
12.08 Entire Agreement. This Agreement contains the entire
agreement among the parties hereto regarding the Credit. This Agreement shall
completely and fully supersede all prior understandings or agreements, both
written and oral, between the parties hereto regarding the Credit. THIS
AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
12.09 Amendment or Waiver. This Agreement may not be changed,
discharged or terminated without the written consent of the parties hereto,
and no provision hereof may be waived without the written consent of the party
to be bound thereby.
12.10 Counterparts. This Agreement may be signed in separate
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
12.11 Judgment Currency. All payments of principal, interest,
fees or other amounts due hereunder and under the Note(s) shall be made in
Dollars, regardless of any law, rule, regulation or statute, whether now or
hereafter in existence or in effect in any jurisdiction, which affects or
purports to affect such obligations. The obligation of the Borrower and the
Guarantor in respect of any amount due under this Agreement or the Note(s),
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), shall be discharged only to the extent of the amount
in Dollars that the Person entitled to receive that payment may, in accordance
with normal banking procedures, purchase with the sum paid in that other
currency (after any premium and costs of exchange) on the Business Day
immediately succeeding the day on which that Person receives that payment. If
the amount in Dollars that may be so purchased for any reason falls short of
the amount originally due, the Borrower and the Guarantor shall pay such
additional amounts, in Dollars, to compensate for the shortfall. Any
obligation of the Borrower or the Guarantor not discharged by that payment
shall be continue to be due as a separate and independent obligation and shall
accrue interest in accordance with Section 5.02 until discharged as provided
herein.
12.12 English Language. All documents to be delivered by any
party hereto pursuant to the terms hereof shall be in the English language or,
if originally written in another language, shall be accompanied by an accurate
English translation upon which the other parties hereto shall have the right
to rely for all purposes under this Agreement and the Note(s).
12.13 Severability. To the extent permitted by applicable law,
the illegality or unenforceability of any provision of this Agreement shall
not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement.
12.14 Maximum Interest Rate. Regardless of any provision
contained in this Agreement or any Note, the Lender shall never be entitled to
contract for, charge, take, reserve, receive or apply as interest any amount
in excess of the Highest Lawful Rate. If the Lender ever contracts
for,charges, takes, reserves, receives or applies as interest any such excess,
it shall be deemed a partial prepayment of principal and treated hereunder as
such; and, if the loans are paid in full, any remaining excess shall promptly
be paid to the Borrower. In determining whether interest paid or payable
exceeds the Highest Lawful Rate, the Borrower and the Lender shall, to the
maximum extent permitted under applicable Law, (a) treat all advances as but a
single extension of credit (and the Lender and the Borrower agree that such is
the case and that provision herein for multiple advances is for convenience
only), (b) characterize any nonprincipal payment as an expense, fee, or
premium rather than as interest, and (c) "spread" the total amount of interest
throughout the entire contemplated term of the loans; provided that, if the
loans are paid and performed in full prior to the end of the full contemplated
term, and if the interest received for the actual period of existence exceeds
the Highest Lawful Rate, the Lender shall refund the excess, and, in such
event, the Lender shall not be subject to any penalties provided by any Laws
for contracting for, charging, taking, reserving, or receiving interest in
excess of the Highest Lawful Rate.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed and delivered as of the date first above written.
TRITON COLOMBIA, INC.
By:
(Signature)
Name:
(Print)
Title:
(Print)
TRITON ENERGY CORPORATION
By:
(Signature)
Name:
(Print)
Title:
(Print)
NATIONSBANK, N.A. (CAROLINAS)
By:
Kathleen M. Gibson
Senior Vice President
EXPORT-IMPORT BANK OF THE UNITED STATES
By:
(Signature)
Name:
(Print)
Title:
(Print)
Eximbank Guarantee No. AP065758XX-Colombia
FORM OF FLOATING RATE NOTE A-4 (CA)
Annex A-1
TRITON COLOMBIA, INC.
PROMISSORY NOTE(1)
U.S. $________________________ _____________,19__
FOR VALUE RECEIVED, TRITON COLOMBIA, INC., 6688 North Central Expressway,
Suite 1400, Dallas, Texas 75206 ("Maker") by this promissory note ("Note")
hereby unconditionally promises to pay to the order of NATIONSBANK, N.A.
(CAROLINAS) ("Lender") at 121 W. Trade Street, 21st Floor, NC1-005-21-01,
Charlotte, North Carolina 28255-0001 the principal sum of _________________
Dollars ($___________) in installments as hereinafter provided and to pay
interest on the principal balance hereof from time to time outstanding, as
hereinafter provided, at the rate of one-fourth percent (0.25%) per annum
above LIBOR. [Beginning on the Eximbank Claim Payment Date (hereinafter
defined), the definition of Special LIBOR shall apply for all purposes,
including, without limitation, the fifth paragraph hereof, in place of the
definition of LIBOR.](2) All capitalized terms not defined herein have the
meanings assigned to them in the Credit Agreement (hereinafter defined).
The principal hereof shall be paid in ten (10) installments, the first
of which shall be in the sum of ____________________ Dollars ($______) and
shall be due and payable on ______________ 15, 19__. The remaining
installments shall each be in the sum of _______________ Dollars
($___________) and shall be due and payable semi-annually thereafter on
January 15 and July 15 of each year (each, a "Payment Date"), provided that,
on the last Payment Date, the Maker shall repay in full the principal amount
hereof then outstanding.
Interest on this Note is payable on each Payment Date, beginning on
____________ 15, 19___. Interest will be calculated on the basis of the
actual number of days elapsed (including the first day, but excluding the last
day) over a year of 360 days.
____________________
(1) Do not consolidate or otherwise move around the paragraphs in this
Note. Specific provisions of this Note are identified in the Ex-Im Bank
Guarantee Agreement by the paragraphs in which such provisions appear.
(2) Included the bracketed language only in Notes for which the Lender has
elected the Accelerated Payment Method in accordance with the Eximbank
Guarantee Agreement. If not applicable, delete bracketed language here and
delete the words "Eximbank Claim Payment Date" from the fifth paragraph
because you will not need that defined term.
In the event that any amount of the principal hereof or accrued interest
on this Note is not paid in full when due (whether at stated maturity, by
acceleration or otherwise), the Maker shall pay to the Lender on demand
interest on such unpaid amount (to the extent permitted by applicable law) for
the period from the date such amount was due until such amount shall have been
paid in full at an interest rate per annum equal to (x) 1% per annum above the
interest rate then applicable under the first paragraph hereof until the end
of the then current Interest Period, and (y) thereafter 1% per annum above the
Alternate Rate.
Notwithstanding the fourth paragraph hereof, beginning on the date on
which Eximbank shall have made a claim payment to the Lender under the
Eximbank Guarantee Agreement ("Eximbank Claim Payment Date"), in the event any
amount of principal of or accrued interest on this Note owing to Eximbank is
not paid in full when due (whether at stated maturity, by acceleration or
otherwise), the Maker shall pay to Eximbank on demand interest on such unpaid
amount (to the extent permitted by applicable law) for the period from the
date such amount was due until such amount shall have been paid in full, at an
interest rate per annum equal to one percent (1%) per annum above the interest
rate then applicable under the first paragraph hereof.
This is one of the Notes referenced in Section 5.06 of the Credit
Agreement dated as of____, 1995 (the "Credit Agreement") by and among the
Maker, Triton Energy Corporation, the Lender and the Export-Import Bank of
the United States. This Note is entitled to the benefits of, and is governed
in all respects by, the terms of the Credit Agreement, which Credit
Agreement, among other things, contains provisions for the payment of
principal and interest (including default interest) hereon without set-off,
counterclaim, deduction, withholding on account of taxes levied or imposed
under the laws of the Government of the United States, restrictions and
conditions of whatever nature, and for acceleration of the maturity hereof
upon the happening of certain stated events. The principal amount hereof
may be prepaid in accordance with terms of the Credit Agreement. All
payments received hereunder shall be applied in accordance with the order
of priority set forth in Section 8.02 of the Credit Agreement.
The Borrower hereby waives demand, diligence, presentment, protest and
notice of every kind, and warrants to the holder that all action and approvals
required for the execution and delivery hereof as a legal, valid and binding
obligation of the undersigned, enforceable in accordance with the terms
hereof, have been duly taken and obtained.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK, U.S.A.
The failure of the holder hereof to exercise any of its rights hereunder
in any instance shall not constitute a waiver thereof in that or any other
instance.
TRITON COLOMBIA, INC.
By:
(Signature)
Name:
(Print)
Title:
(Print)
Promissory Note: L (3) - ________ (4)
Eximbank Guarantee No. APO65758XX - Colombia
____________________
(3) Insert either "F" (if the Note bears interest at a fixed rate) or "L"
(if the Note bears interest at a LIBOR rate)
(4) Note Number
GUARANTEE
FOR VALUE RECEIVED, the undersigned, as primary obligor, hereby
unconditionally and irrevocably guarantees the full, prompt and complete
payment when due (whether at scheduled maturity, by reason of acceleration or
otherwise) of the principal of and the interest on the foregoing promissory
note, and hereby waives acceptance, diligence, presentment, demand, protest or
notice of any kind whatsoever (including notice of default or non-payment), as
well as any requirements that the holder exhaust any right or take any action
against the maker of the foregoing promissory note, and hereby consents to any
extension of time or renewal or other modification thereof. This is a
continuing, absolute and unconditional guarantee of payment and not merely of
collection. To the extent permitted by applicable law, the undersigned hereby
waives all defenses of a surety or guarantor to which it may be entitled by
statute or otherwise. The debt obligations of the undersigned hereunder are
and will be Senior Indebtedness, as defined in the Indenture.
This Guarantee is issued pursuant to the terms of the Credit Agreement,
and is subject to the terms and is entitled to the benefits thereof.
TRITON ENERGY CORPORATION
By:
(Signature)
Name:
(Print)
Title:
(Print)
FORM OF FIXED RATE NOTE A-4 (CA)
Annex A-2
TRITON COLOMBIA, INC.
PROMISSORY NOTE(1)
U.S. $ ____________________ ______________, 19__
FOR VALUE RECEIVED, TRITON COLOMBIA, INC. , 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206 ("Maker") by this promissory note
("Note") hereby unconditionally promises to pay to the order of NATIONSBANK,
N.A. (CAROLINAS) ("Lender") at 121 W. Trade Street, 21st Floor,
NC1-005-21-01, Charlotte, North Carolina 28255-0001, the principal sum of
___________________ Dollars ($_____________) in installments as hereinafter
provided and to pay interest on the principal balance hereof from time to time
outstanding, as hereinafter provided, at the rate of ______________ percent
(____%) per annum.
The principal hereof shall be paid in _____________ (_____) installments,
the first of which shall be in the sum of ____________________ Dollars
($______) and shall be due and payable on ______________ 15, 19__. The
remaining installments shall each be in the sum of _______________ Dollars
($___________) and shall be due and payable semi-annually thereafter on
January 15 and July 15 of each year (each, a "Payment Date"), provided that,
on the last Payment Date, the Maker shall repay in full the principal amount
hereof then outstanding.
Interest on this Note is payable on each Payment Date, beginning on
______________ 15, 19__. Interest will be calculated on the basis of the
actual number of days elapsed (including the first day, but excluding the last
day) over a year of 360 days.
In the event that any amount of the principal hereof or accrued interest
on this Note is not paid in full when due (whether at stated maturity, by
acceleration or otherwise), the Maker shall pay to the Lender on demand
interest on such unpaid amount (to the extent permitted by applicable law) for
the period from the date such amount was due until such amount shall have been
paid in full at an interest rate per annum equal to (x) 1% per annum above the
interest rate then applicable under the first paragraph hereof until the end
of the then current Interest Period, and (y) thereafter 1% per annum above the
Alternate Rate.
____________________
(1) Do not consolidate or otherwise move around the paragraphs in this
Note. Specific provisions of this Note are identified in the Ex-Im Bank
Guarantee Agreement by the paragraphs in which such provisions appear.
Notwithstanding the fourth paragraph hereof, beginning on the date on
which Eximbank shall have made a claim payment to the Lender under the
Eximbank Guarantee Agreement, in the event any amount of principal of or
accrued interest on this Note owing to Eximbank is not paid in full when due
(whether at stated maturity, by acceleration or otherwise), the Maker shall
pay to Eximbank on demand interest on such unpaid amount (to the extent
permitted by applicable law) for the period from the date such amount was due
until such amount shall have been paid in full, at an interest rate per annum
equal to one percent (1%) per annum above the interest rate then applicable
under the first paragraph hereof.
This is one of the Notes referenced in Section 5.06 of the Credit
Agreement dated as of____, 1995 (the "Credit Agreement") by and among the
Maker, Triton Energy Corporation, the Lender and the Export-Import Bank of
the United States. This Note is entitled to the benefits of, and is governed
in all respects by, the terms of the Credit Agreement, which Credit
Agreement, among other things, contains provisions for the payment of
principal and interest (including default interest) hereon without set-off,
counterclaim, deduction, withholding on account of taxes levied or imposed
under the laws of the Government of the United States, restrictions and
conditions of whatever nature, and for acceleration of the maturity hereof
upon the happening of certain stated events. The principal amount hereof
may be prepaid in accordance with the terms of the Credit Agreement. All
payments received hereunder shall be applied in accordance with the
order of priority set forth in Section 8.02 of the Credit Agreement.
The Borrower hereby waives demand, diligence, presentment, protest and
notice of every kind, and warrants to the holder that all action and approvals
required for the execution and delivery hereof as a legal, valid and binding
obligation of the undersigned, enforceable in accordance with the terms
hereof, have been duly taken and obtained.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK, U.S.A.
The failure of the holder hereof to exercise any of its rights hereunder
in any instance shall not constitute a waiver thereof in that or any other
instance.
TRITON COLOMBIA, INC.
By:
(Signature)
Name:
(Print)
Title:
(Print)
Promissory Note: F (2) - _____ (3)
Eximbank Guarantee No. APO65758XX - Colombia
____________________
(2) Insert either "F" (if the Note bears interest at a fixed rate) or "L"
(if the Note bears interest at a LIBOR rate)
(3) Note Number
GUARANTEE
FOR VALUE RECEIVED, the undersigned, as primary obligor, hereby
unconditionally and irrevocably guarantees the full, prompt and complete
payment when due (whether at scheduled maturity, by reason of acceleration or
otherwise) of the principal of and the interest on the foregoing promissory
note, and hereby waives acceptance, diligence, presentment, demand, protest or
notice of any kind whatsoever (including notice of default or non-payment), as
well as any requirements that the holder exhaust any right or take any action
against the maker of the foregoing promissory note, and hereby consents to any
extension of time or renewal or other modification thereof. This is a
continuing, absolute and unconditional guarantee of payment and not merely of
collection. To the extent permitted by applicable law, the undersigned hereby
waives all defenses of a surety or guarantor to which it may be entitled by
statute or otherwise. The debt obligations of the undersigned hereunder are
and will be Senior Indebtedness, as defined in the Indenture.
This Guarantee is issued pursuant to the terms of the Credit Agreement,
and is subject to the terms and is entitled to the benefits thereof.
TRITON ENERGY CORPORATION
By:
(Signature)
Name:
(Print)
Title:
(Print)