BONTANG IV LOAN AGREEMENT
$750,000,000.00
among
CONTINENTAL BANK INTERNATIONAL
as Trustee
under the Bontang IV Trustee and
Paying Agent Agreement
as Borrower,
CHASE MANHATTAN ASIA LIMITED and THE MITSUBISHI BANK, LIMITED
as Coordinators,
the other banks and financial
institutions named herein as Arrangers,
Co-Arrangers, Lead Managers, Managers,
Co-Managers and Lenders,
THE CHASE MANHATTAN BANK, N.A. and THE MITSUBISHI BANK, LIMITED
as Co -Agents
and
THE CHASE MANHATTAN BANK, N.A.
as Agent
Dated as of August 26, 1991
TABLE OF CONTENTS*
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 2
2. THE ADVANCES. . . . . . . . . . . . . . . . . . . . .15
2.1 The Commitments . . . . . . . . . . . . . . .15
2.2 Manner of Borrowing . . . . . . . . . . . . .16
2.3 Interest. . . . . . . . . . . . . . . . . . .18
2.4 Election of Interest Periods. . . . . . . . .18
2.5 Determination of Interest Rates . . . . . . .19
2.6 Alternative Interest Rates. . . . . . . . . .19
2.7 Interest Rate on Overdue Amounts;
Other Indemnities. . . . . . . . . . . . . .21
2.8 Fees. . . . . . . . . . . . . . . . . . . . .23
2.9 The Notes . . . . . . . . . . . . . . . . . .23
2.10 Repayment on Maturity Dates; Deferral. . . .25
2.11 Notices . . . . . . . . . . . . . . . . . . . . 26
3. PAYMENTS. . . . . . . . . . . . . . . . . . . . . . .27
3.1 Allocation of Amounts; Substitute Payment . .27
3.2 Funds of Payment. . . . . . . . . . . . . . .27
3.3 Set-Off, Counterclaim and Taxes . . . . . . .28
3.4 Change of Law . . . . . . . . . . . . . . . .29
3.5 Certain Prepayments . . . . . . . . . . . . .31
3.6 Other Prepayments . . . . . . . . . . . . . .31
3.7 Cancellation of Commitments . . . . . . . . .32
3.8 No Reborrowing. . . . . . . . . . . . . . . .32
3.9 Payments to be Made at End of Interest Period32
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. . . .32
4.1 Power and Authority . . . . . . . . . . . . .33
4.2 Legal Action . . . . . . . . . . . . . . . .33
4.3 Restrictions. . . . . . . . . . . . . . . . .33
4.4 Registration and Approvals. . . . . . . . . .33
4.5 Agreement Binding . . . . . . . . . . . . . .33
4.6 Ranking of Advances; Encumbrances . . . . . .34
4.7 Litigation. . . . . . . . . . . . . . . . . 34
4.8 Compliance with Other Instruments,etc . . . .35
4.9 No Defaults . . . . . . . . . . . . . . . . .35
4.10 Trust Agreement . . . . . . . . . . . . . . .35
5. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . .35
5.1 Conditions Precedent to the Initial Advances . . .35
5.2 Conditions Precedent to the Initial and
Subsequent Advances. . . . . . . . . . . . . . . .38
5.3 Representations. . . . . . . . . . . . . . . . . .39
6. COVENANTS . . . . . . . . . . . . . . . . . . . . . . .39
6.1 Information. . . . . . . . . . . . . . . . . . . .39
6.2 Negative Pledge. . . . . . . . . . . . . . . . . .40
6.3 No Consent to Changes. . . . . . . . . . . . . . .41
6.4 Indebtedness . . . . . . . . . . . . . . . . . . .41
6.5 Notice at End of Availability Period . . . . . . .42
7. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . .42
8. AGENT . . . . . . . . . . . . . . . . . . . . . . . . .44
8.1 Appointment and Authority. . . . . . . . . . . . .44
8.2 Agent May Rely on Documents. . . . . . . . . . . .45
8.3 No Amendment to Duties of Agent Without Consent. .45
8.4 Responsibilities of Agent and Coordinators
8.5 Funding Costs of Agent . . . . . . . . . . . . . .46
8.6 Agent in Individual Capacity . . . . . . . . . . .47
8.7 Credit Decision. . . . . . . . . . . . . . . . . .47
8.8 Coordinators . . . . . . . . . . . . . . . . . . .47
8.9 Change of Administrative Office of Agent . . . . . . 47
8.10 Successor Agent. . . . . . . . . . . . . . . . . .47
9. SOURCE OF DEBT SERVICE; RECOURSE . . . . . . . . .48
9.1 Accumulation for Debt Service. . . . . . . . . . .48
9.2 Accumulation in Regular Reserve Account. . . . . .48
9.3 Debt Coverage Reserve Account. . . . . . . . . . .49
9.4 Payments Made from Debt Service Account and
Reserve Account. . . . . . . . . . . . . . . . . 50
9.5 No Recourse. . . . . . . . . . . . . . . . . . . .50
9.6 Not to Limit Remedies. . . . . . . . . . . . . . .51
10. MISCELLANEOUS. . . . . . . . . . . . . . . . . . .52
10.1 Notices. . . . . . . . . . . . . . . . . . . . . .52
10.2 No Waiver; Remedies Cumulative . . . . . . . . . .52
10.3 Use of English Language. . . . . . . . . . . . . .53
10.4 Assignment and Transfer; Successors and Assigns;
Participations . . . . . . . . . . . . . . . . . .53
10.5 Amendments . . . . . . . . . . . . . . . . . . . .57
10.6 Expenses; Indemnification. . . . . . . . . . . . .58
10.7 Sharing of Set-Off and Other Payments. . . . . . .59
10.8 Counterparts . . . . . . . . . . . . . . . . . . .60
10.9 Table of Contents and Section Headings . . . . . .60
10.10 Governing Law . . . . . . . . . . . . . . . . . .60
10.11 Severability. . . . . . . . . . . . . . . . . . .60
10.12 Term of Agreement . . . . . . . . . . . . . . . .61
LOAN AGREEMENT
AGREEMENT dated as of August 26, 1991 among
(i) CONTINENTAL BANK INTERNATIONAL, not in its individual
capacity but solely as Trustee under the Bontang IV Trustee and
Paying Agent Agreement among it and PERUSAHAAN PERTAMBANGAN MINYAK
DAN GAS BUMI NEGARA, VIRGINIA INDONESIA COMPANY, OPICOIL HOUSTON,
INC., VIRGINIA INTERNATIONAL COMPANY, ULTRAMAR INDONESIA LIMITED,
UNION TEXAS EAST KALIMANTAN LIMITED, UNIVERSE GAS & OIL COMPANY,
INC., TOTAL INDONESIE, UNOCAL INDONESIA, LTD. and INDONESIA
PETROLEUM, LTD., dated as of the date hereof;
(ii) CHASE MANHATTAN ASIA LIMITED and THE MITSUBISHI
BANK, LIMITED, as Coordinators;
(iii) the banks and other financial institutions named on
the signature pages hereof under the captions "Arrangers",
"Co-Arrangers", "Lead Managers", "Managers", "Co-Managers" and
"Co-Agents";
(iv) the banks and other financial institutions named
under the caption "Lenders" on the signature pages hereof; and
(v) THE CHASE MANHATTAN BANK, N.A., as Agent for the Lenders.
W I T N E S S E T H
WHEREAS, the Borrower has requested the Lenders to make
Advances to the Borrower upon the terms and subject to the
conditions of this Agreement in an aggregate principal amount of
$750,000,000 for the purpose of paying (i) the costs incurred or to
be incurred in connection with the design, engineering, procurement
and construction of or otherwise relating to Train F and (ii)
interest, fees, expenses, taxes and other amounts payable by the
Borrower pursuant to Sections 2.3, 2.7, 2.8, 3.3, 3.4(b) and 10.6
hereof;
WHEREAS, the Lenders are prepared, severally, and not jointly
or jointly and severally, to make such advances to the Borrower on
a pro rata basis upon the terms and subject to the conditions of
this Agreement; and
WHEREAS, no recourse shall be had for any amount due under
this Agreement against Continental Bank International in its
individual capacity, with certain proceeds from the sale of
liquefied natural gas being the sole source of repayment hereunder
of all such amounts, except as specifically provided herein.
NOW, THEREFORE, in consideration of the mutual promises
contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized
expressions shall have the following respective meanings, such
meanings to be applicable to both the singular and the plural forms
of such expressions:
"Additional Pipeline" means the additional pipeline described
in the Development Plan.
"Additional Plant" means the additional gas liquefaction and
processing facility known, for operating purposes, as "Train F" and
facilities related to or used in connection therewith located
within the perimeter fence of the natural gas liquefaction and
processing plants forming part of the Bontang Plant.
"Advance" means each advance by a Lender to the Borrower
hereunder on a Borrowing Date or, where the context so requires,
the amount of such advance from time to time outstanding.
"Agent" means The Chase Manhattan Bank, N.A., or any successor
thereto appointed pursuant to Section 8.10 hereof.
"Agreement" shall mean this Loan Agreement, as the same may
from time to time be amended, supplemented or modified in
accordance with the terms hereof.
"Applicable Margin" means 1-1/4% for any Advances (including
any Deferred Portion thereof).
"Assumed Interest Rate" means the interest rate per annum
agreed by the Borrower and the Majority Lenders on or prior to the
date hereof; provided that at any time and from time to time
following the date hereof (but not more than once each calendar
quarter) upon the reasonable request of the Borrower, or the Agent
(acting with the concurrence of the Majority Lenders), the Borrower
and the Agent shall negotiate in good faith to reach agreement on
an interest rate per annum to serve as the Assumed Interest Rate
which is acceptable to the Borrower and the Agent on behalf of the
Majority Lenders. If agreement cannot be reached on such interest
rate within 30 days following a request for such negotiations, then
the Assumed Interest Rate shall be the interest rate per annum
specified in good faith by the Agent on behalf of the Majority
Lenders.
"Availability Period" means the period beginning on the
Effective Date and ending on the earlier of (i) the date nine
months following the Completion Date or (ii) September 30, 1994.
"Basic Agreements" means the agreements listed on Schedule 1
hereto.
"Bontang Plant" means the natural gas liquefaction plant at
Bontang Bay on the east coast of Kalimantan, Indonesia including
all related facilities, such as natural gas processing plants for
the production of LNG and liquefied petroleum gas consisting of
propane and butane, utilities, storage tanks, loading lines and
arms, harbor, docks, berths, tug boats, residential community,
workshops, offices, fixed plant and equipment and communication
systems, together with replacements, improvements, additions and
expansions of all such facilities, together also with natural gas
transmission lines extending from "Delivery Points" as defined in
the Processing Agreement, and from such other points in other
fields from which natural gas is supplied, to the said natural gas
liquefaction plant (including associated knock-out drums but
excluding natural gas gathering pipelines within fields).
"Bontang IV Payment Account" has the meaning set forth in
Article 1 of the Trust Agreement.
"Borrowed Amounts" means any amounts borrowed pursuant to the
first two sentences of Section 2.2(b) hereof.
"Borrower" means Continental Bank International, solely as
Trustee under the Trust Agreement and not in its individual
capacity. The term "Borrower" does not include Continental Bank
International in any other capacity or any one or more of the
Producers.
"Borrowing" means a borrowing hereunder consisting of Advances
made to the Borrower at the same time by all then participating
Lenders severally.
"Borrowing Date" means (i) a Business Day prior to August 30,
1991 specified in a Notice of Borrowing as a date on which the
Borrower will make a Borrowing hereunder, (ii) thereafter the last
day of each month (except August 1991) during the Availability
Period and (iii) the last day of the Availability Period; provided
that if a Borrowing Date would otherwise occur on a date which is
not a Business Day, such Borrowing Date shall be the immediately
preceding Business Day.
"Business Day" means any day on which (i) dealings in Dollar
deposits are carried on in the London interbank market and (ii)
commercial banks are not authorized or required to close in either
London or the City of New York.
"Buyer" means each of (i) Osaka Gas Co., Ltd., a corporation
organized under the laws of Japan, (ii) Tokyo Gas Co., Ltd., a
corporation organized under the laws of Japan and (iii) Toho Gas
Co., Ltd., a corporation organized under the laws of Japan, each as
a buyer under the LNG Sales Contract and their respective
successors and assigns thereunder.
"Commitment" means, with respect to each Lender, the principal
amount set forth opposite such Lender's name under the caption
"Commitment" on the signature pages hereof, as such amounts may be
reduced from time to time pursuant to Section 3.7 hereof, or such
Lender's commitment to lend such amounts, as the context may
require.
"Completion Date" means the date on which the Agent shall have
received a written notice from the Borrower as required by Section
6.1(e) hereof, to which is attached a notice from Pertamina to the
effect that:
(i) the construction of Train F has been completed in
accordance with the Development Plan and the Additional Plant and
the Additional Pipeline have been completed in accordance with, and
fully and finally accepted by Pertamina under, the Construction
Documents;
(ii) the Additional Plant has demonstrated processing
capabilities consistent with those contained in the Development
Plan and at least 170,000 metric tons of LNG meeting the quality
specifications set forth in the LNG Sales Contract have been
produced over a period of 30 consecutive days and delivered to
storage during such period; and
(iii) actual aggregate deliveries of at least two full
cargoes of LNG have been made at the Delivery Point pursuant to the
LNG Sales Contract during the 30-day period referred to in clause
(ii) above.
"Construction Documents" means (i) the Bontang LNG Expansion
Project Train F Agreement (Contract No. B50-JMC-001) dated March 1,
1991 between Pertamina and P.T. Inti Karya Persada Tehnik, as
heretofore and hereafter amended, (ii) the Interim Contract dated
as of March 1, 1991 between Pertamina and P.T. Inti Karya Persada
Tehnik, as heretofore and hereafter amended, (iii) Articles 1, 2,
5, 7, 8 and 17 of the Collaboration Agreement dated March 1, 1991
among P.T. Inti Karya Persada Tehnik, Chiyoda Corporation and
Mitsubishi Corporation, as heretofore and hereafter amended, and
(iv) the letter agreement dated March 1, 1991 among Chiyoda
Corporation, Mitsubishi Corporation and Pertamina, as heretofore
and hereafter amended.
"Debt Coverage Ratio" means:
(i) during the Availability Period, (i) the sum of (x) the
present value as of September 30, 1994 (determined by discounting
by the Assumed Interest Rate at the time of calculation) of the
Source of Debt Service reasonably anticipated to be payable from
such date to the Final Maturity Date plus (y) the amount held in
the Reserve Account at the time of calculation, divided by (ii) the
total Commitments; and
(ii) thereafter, (i) the sum of (x) the present value as
of the time of calculation (determined by discounting by the
Assumed Interest Rate at the time of calculation) of the Source of
Debt Service reasonably anticipated to be payable from the time of
calculation to the Final Maturity Date plus (y) the amount held in
the Reserve Account at the time of calculation, divided by (ii) the
outstanding principal amount of the Notes at the time of
calculation.
Prior to the Effective Date the assumptions necessary for
calculating the Debt Coverage Ratio shall have been the subject of
agreement between the Borrower and the Agent or in the absence of
agreement shall have been specified in good faith by the Agent on
behalf of the Majority Lenders. These assumptions shall remain in
effect for purposes of calculating the Debt Coverage Ratio,
whenever required, until such time (but not more than once each
calendar quarter) as either the Borrower or the Agent (with the
concurrence of the Majority Lenders) shall request a
reconsideration of such assumptions, whereupon the Borrower and the
Agent shall negotiate in good faith to reach agreement on
assumptions necessary for calculating the Debt Coverage Ratio which
are acceptable to the Borrower and the Agent on behalf of the
Majority Lenders. If the Borrower and the Agent on behalf of the
Majority Lenders cannot reach agreement on such assumptions within
30 days following a request for reconsideration of such
assumptions, then, until any further request for reconsideration
thereof is made and agreed, the assumptions to be used for purposes
of calculating the Debt Coverage Ratio, whenever required, shall be
those specified in good faith by the Agent on behalf of the
Majority Lenders.
"Debt Coverage Reserve Account" has the meaning set forth in
Article 1 of the Trust Agreement.
"Debt Service Account" has the meaning set forth in Article
1 of the Trust Agreement.
"Deferred Portion" means any portion of the outstanding
principal amount of any Advance, the payment of which has been
deferred pursuant to Section 2.10(b) hereof.
"Delivery Point" means "Delivery Point" as set forth in
Article 1 of the LNG Sales Contract.
"Development Plan" means the Development Plan for Train F
entitled BADAK LNG IV (TRAIN F) PROJECT DEVELOPMENT PLAN dated
March 1991, as heretofore and hereafter amended.
"Dollars" and the sign "$" mean such coin or currency of the
United States of America as is, at the relevant time, legal tender
for the payment of public and private debts.
"Drawdown Schedule" means the schedule of Borrowings
anticipated to be requested on each of the Borrowing Dates as
originally set forth in Schedule 2 hereto and as updated quarterly
pursuant to Section 2.2(e) hereof.
"Effective Date" means the date this Agreement is fully
executed by all of the parties hereto.
"Encumbrance" means any lien, security interest, mortgage,
deed of trust, pledge, charge or any other encumbrance of any kind,
including, without limitation, the rights of a vendor, lessor or
similar party under any conditional sale agreement or other title
retention agreement or lease substantially equivalent thereto, any
production payment, and, with respect to any property or assets,
any other right of or arrangement with any creditor to have its
claim satisfied out of any such property or assets, or the proceeds
therefrom, prior to the general creditors of the owner thereof.
"Event of Default" means any of the events specified in
Section 7 hereof.
"Excluded Taxes" means (i) any Taxes (including withholdings)
based upon gross or net income payable by a Lender or th/e Agent to
the jurisdiction of such Lender's incorporation or the
jurisdictions in which such Lender has its principal executive
office or in which its Lending Office is located, or any
department, agency or other political subdivision or taxing
authority in any of such jurisdictions and (ii) the additional
amount of any Taxes (other than Taxes described in the preceding
clause (i) prior to a change in the Lending Office) that may be
imposed upon or with respect to a Payment arising solely by reason
of the facts that the Lender is a foreign corporation or other
non-resident person within the meaning of the Internal Revenue Code
of 1986, as amended, and the Lending office receiving such Payment
is not located in the United States of America. Solely for
purposes of the preceding sentence, the term "Lending Office" shall
mean, in addition to the definition set forth below in this Section
1, a branch or office of a Lender which has physical custody of a
Note, this Agreement or the Letter Agreement or which conducts the
activities that are the responsibilities of a Lender described in
this Agreement or, solely in the event that a taxing jurisdiction
asserts a tax by reason of the fact that a branch or office of a
Lender previously had (but no longer has) such custody or conducted
(but no longer conducts) such activities, such other branch or
office.
"Final Maturity Date" means the fortieth Maturity Date
occurring following the last day of the Availability Period.
"Gross Invoice Amount" means the sum (without duplication) of
(i) the amounts payable to the Borrower pursuant to the LNG Sales
Contract in respect of LNG purchased or, if not taken, required to
be purchased but not taken thereunder, (ii) amounts payable to the
Borrower pursuant to Section 6.3 of each Supply Agreement and (iii)
all amounts payable to the Borrower on account of interest due by
reason of the late payment of invoices for LNG under Section 10.3
of the LNG Sales Contract; provided that the Gross Invoice Amount
shall not be reduced by any rebate, setoff, reduction or discount
given or agreed to by one or more parties to the LNG Sales Contract
from such amount payable as so defined, adjusted and calculated,
and provided further, that if the Borrower is authorized and
requested by the Producers (which authorization and request may be
given pursuant to Section 1.16(b) of the Producers Agreement) to
execute and deliver an agreement providing for the amendment of
this definition of Gross Invoice Amount, and if the Agent on behalf
of the Lenders also executes and delivers such agreement, this
definition of Gross Invoice Amount shall be deemed amended for all
purposes of this Agreement as set forth in such agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or
other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or
in part); provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of
business.
"Indebtedness" means, with respect to any Person, (i) all
indebtedness or obligations of such Person for borrowed money, (ii)
all indebtedness or obligations of such Person evidenced by bonds,
debentures, notes, swap agreements or other similar instruments or
agreements, and all securities issued by such Person providing for
mandatory payments of money, whether or not contingent, (iii) all
obligations of such person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the
ordinary course of business, (iv) all obligations of such Person as
lessee under capital leases, (v) all obligations of such Person to
purchase securities (or other property) which arise out of or in
connection with the sale of the same or substantially similar
securities or property, (vi) all non-contingent obligations of such
Person to reimburse any Person in respect of amounts paid under a
letter of credit or similar instrument to the extent that such
reimbursement obligations remain outstanding five business days
after they become non-contingent, (vii) Indebtedness of others
secured by an Encumbrance on any asset of such Person, whether or
not such Indebtedness is assumed by such Person or (viii) all
Guarantees by such Person of or with respect to the Indebtedness of
another Person.
"Interest Payment Date" means the last day of each Interest
Period.
"Interest Period" means (except in the case of the initial
Interest Period) a period of three or six months selected or deemed
selected by the Borrower as provided in Section 2.4 hereof and
determined as follows:
(i) The initial Interest Period for each Borrowing will begin
on the date of such Borrowing and will end on the March 31, June
30, September 30, or December 31 next occurring within three months
thereafter, and each subsequent Interest Period for such Borrowing
will begin on the Interest Payment Date ending the previous
Interest Period and end on the June 30, September 30, December 31
or March 31 next occurring three or six months thereafter, as the
case may be, subject to clauses (ii), (iii) and (iv) of this
definition.
(ii) Subject to clause (iv) of this definition, all
Borrowings for which Interest Periods end on the same Interest
Payment Date shall be consolidated so that all subsequent elections
of Interest Periods for such Borrowings shall apply to all such
Borrowings so consolidated.
(iii) If any Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the
immediately preceding Business Day.
(iv) If the Borrower wishes to elect an Interest Period
of six months for any Borrowings and if the aggregate outstanding
principal amount of the Borrowings for which a Notice of Interest
Period is then to be given is greater than the amount of the
repayment installment due to the Lenders on a Maturity Date
approximately three months following the date of the proposed
election, then, for purposes of calculating interest, such
Borrowings shall be divided and henceforth treated as two separate
Borrowings (such division to be pro rata as to each Lender's
Advances), one of an amount equal to the amount of the repayment
installment due to the Lenders on such Maturity Date (the Interest
Period for which will end on such Maturity Date) and the other of
an amount equal to the remainder of such consolidated Borrowings.
The Borrower's election of a six-month Interest Period shall only
apply to such remainder of the consolidated Borrowings.
"Legal Requirements" means all applicable (i) laws, rules,
regulations, ordinances, orders, decrees, permits, licenses,
authorizations, directions and requirements of all governments and
governmental departments, commissions, boards, authorities and
agencies, (ii) court and governmental administrative agency
judgments and injunctions, (iii) arbitral awards and (iv)
requirements of courts and arbitral tribunals.
"Lender" means each of the banks and other financial
institutions named under the caption "Lenders" on the signature
pages hereof, any transferee pursuant to and subject to the
conditions stated in Section 10.4 hereof and their respective
permitted successors and assigns.
"Lending Office" means (i) initially for each Lender its
office or branch located as of the date hereof at its address set
forth on the signature pages hereof and (ii) subsequently for each
Lender such other office or branch of such Lender as such Lender
may designate by notice in writing to the Borrower and the Agent as
the office or branch from or at which such Lender's Advances will
thereafter be made or maintained and for the account of which all
payments of principal of and interest on the relevant Notes and all
other payments to such Lender under this Agreement will thereafter
be made; provided that the designation of a new Lending Office
shall be subject to the conditions stated in Section 10.4 hereof.
"Letter Agreement" means collectively (i) the Management Fee
Letter Agreement referred to in Section 2.8(a) hereof, (ii) the
Agency Fee Letter Agreement referred to in Section 2.8(b) hereof
and (iii) the Expenses Letter Agreement referred to in Section
10.6(c) hereof.
"LIBOR" has the meaning set forth in Section 2.5 hereof.
"LNG" has the meaning set forth in Article 1 of the Processing
Agreement.
"LNG Sales Contract" means the Badak IV LNG Sales Contract,
dated as of October 23, 1990, between Pertamina and each of the
Buyers, as heretofore and hereafter amended, including any
extension or renewal thereof.
"Majority Lenders" means at any time Lenders holding in excess
of 66-2/3% of the aggregate unpaid principal amount of the
Advances, or if no such Advances are at the time outstanding,
Lenders having in excess of 66-2/3% of the aggregate amount of the
Commitments.
"Maturity Date" means the first March 31, June 30, September
30 or December 31 to occur at least three months following the last
day of the Availability Period and, thereafter, each March 31, June
30, September 30 and December 31 occurring three months following
the last of the same to occur, each of which shall be an Interest
Payment Date; provided that if any such date is not a Business Day,
such Maturity Date shall be the immediately preceding Business Day.
"Note" means any of the Notes provided for in Section 2.9
hereof.
"Notice Lenders" has the meaning set forth in Section 2.6
hereof.
"Notice of Borrowing" means a notice from the Borrower to the
Agent substantially in the form of Exhibit A hereto.
"Notice of Deferral" means a notice from the Borrower to the
Agent substantially in the form of Exhibit B-1 hereto.
"Notice of Interest Period" means a notice from the Borrower
to the Agent substantially in the form of Exhibit B-2 hereto.
"Notice of Start-up" means the notice that Start-up has
occurred given by Pertamina to the Agent and the Borrower.
"Pari Passu Swap Indebtedness" has the meaning set forth in
Section 6.4 hereof.
"Payments" has the meaning set forth in Section 3.3 hereof.
"Person" means and includes any individual, corporation,
juridical entity, association, statutory body, partnership, joint
venture, trust, estate, unincorporated organization or government,
state or any political subdivision, instrumentality, agency or
authority thereof.
"Pertamina" means Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara, a State Enterprise of the Republic of Indonesia, which
is wholly owned by the Republic of Indonesia, and its successors
and assigns permitted under the Producers Agreement.
"Plant Use Agreement" means the Second Amended and Restated
Agreement for Use and Operation of Plant dated August 12, 1991, but
effective as of February 9, 1988, between Pertamina and P.T. Badak,
as hereafter amended.
"Processing Agreement" means the Amended and Restated Bontang
Processing Agreement, dated as of February 9, 1988, among the
Producers on the one hand and P.T. Badak on the other, as hereafter
amended.
"Producers" means Pertamina, OPICOIL Houston, Inc.., Virginia
International Company, Virginia Indonesia Company, Ultramar
Indonesia Limited, Union Texas East Kalimantan Limited, Universe
Gas & Oil Company, Inc., Total Indonesie, Unocal Indonesia, Ltd.,
and Indonesia Petroleum, Ltd. and Persons succeeding to their
interests in the manner permitted by Section 6.3 of the Producers
Agreement.
"Producers Agreement" means the Bontang IV Producers Agreement
of even date herewith among the Producers, the Agent and the
Lenders, as hereafter amended.
"P.T. Badak" means P.T. Badak Natural Gas Liquefaction
Company, a corporation organized under the laws of the Republic of
Indonesia.
"Quarterly Debt Service" has the meaning set forth in Section
9.1 hereof.
"Quarterly Period" shall mean the period from and including
the making of the initial Borrowing to and including September 30,
1991 and thereafter each subsequent period of approximately three
calendar months ending on the next to occur of December 31, March
31, June 30 or September 30, as the case may be, provided that if
the last day of a Quarterly Period would be a day which is not a
Business Day such Quarterly Period will end on the immediately
preceding Business Day and that each subsequent Quarterly Period
will begin on the calendar day (whether or not a Business Day)
immediately following the last day of the preceding Quarterly
Period.
"Reference Banks" means The Chase Manhattan Bank, N.A., The
Mitsubishi Bank, Limited, The Dai-Ichi Kangyo Bank, Ltd. and Union
Bank of Switzerland.
Regular Reserve Account" has the meaning set forth in Article
1 of the Trust Agreement.
"Reserve Account" has the meaning set forth in Article 1 of
the Trust Agreement.
"Reserves" has the meaning set forth in Section 2.6 hereof.
"Responsible Officer of the Borrower" means the chairman and
vice chairman of the board of directors, the chairman of the
executive committee of the board of directors, the president, any
executive vice president, any senior vice president, any senior
director or any vice president of Continental Bank International.
"Risk Co-Participant" means any of C. Itoh & Co., Ltd.,
Marubeni Corporation, Nissho Iwai Corporation or Sumitomo
Corporation, each a corporation organized under the laws of Japan.
"Risk Participant" means Mitsubishi Corporation, a corporation
organized under the laws of Japan.
"Risk Participation Agreement" means collectively (i) the Risk
Participation Agreement dated as of the date hereof between the
Risk Participant and the Agent on behalf of the Lenders and (ii)
the Co-Participation Agreement dated as of the date hereof among
each of the Risk Co-Participants, the Risk Participant and the
Agent on behalf of the Lenders.
"Section 10.4(a) Affiliate" has the meaning set forth in
Section 10.4(a) hereof.
"Seller's Gas Supply Obligation" means, at any time, "Seller's
Gas Supply Obligation" as defined in the LNG Sales Contract.
"Source of Debt Service" means:
(i) in respect of each amount payable to the Borrower for LNG
purchased, or for LNG required to be purchased but not taken, under
the LNG Sales Contract, or payable to the Borrower pursuant to the
Supply Agreements or otherwise pursuant to the LNG Sales Contract
(without duplication) the portion, if any, of the amount so payable
equal to the percentage specified below of the Gross Invoice Amount
payable (x) under each invoice rendered with respect to each cargo
purchased, or in the case of LNG required to be purchased but not
taken under each invoice rendered with respect to the same quantity
not taken, and (y) otherwise in respect of each cargo, plus the
same percentage of all indemnities and additional amounts payable
by each of the Buyers under the LNG Sales Contract (other than any
refunds of demurrage payable under Section 4.13(c) thereof) without
any reduction or set-off from any such amounts; provided that if
the Borrower is authorized and requested by the Producers (which
authorization and request may be given pursuant to Section 1.16(b)
of the Producers Agreement) to execute and deliver an agreement
providing for the amendment of this definition of Source of Debt
Service, and if the Agent on behalf of the Lenders also executes
and delivers such agreement, this definition of Source of Debt
Service shall be deemed amended for all purposes of this Agreement
as set forth in such agreement; and
(ii) in respect of any period the aggregate amount of the
Source of Debt Service payable during such period.
The percentage referred to above means (i) at any time on or
prior to the twentieth Maturity Date, 70%, and (ii) at any time
thereafter, 65%.
"Start-up" means the first delivery of LNG under the LNG Sales
Contract.
"Subordinated Indebtedness" has the meaning set forth in
Section 6.4 hereof.
"Supply Agreements" means:
(i) Badak IV LNG Sales Contract Supply Agreement dated August
12, 1991, but effective as of October 23, 1990, by and between
Pertamina, on the one hand, and Total Indonesie and Indonesia
Petroleum, Ltd., on the other hand, as hereafter amended;
(ii) Badak IV LNG Sales Contract Supply Agreement, dated
August 12, 1991, but effective as of October 23, 1990, by and
between Pertamina, on the one hand, and Virginia Indonesia Company,
OPICOIL Houston, Inc., Ultramar Indonesia Limited, Union Texas East
Kalimantan Limited, Universe Gas & Oil Company, Inc. and Virginia
International Company, on the other hand, as hereafter amended;
(iii) Badak IV LNG Sales Contract Supply Agreement for
Unocal Contract Area dated August 12, 1991, but effective as of
October 23, 1990, between Pertamina, on the one hand, and Unocal
Indonesia, Ltd., on the other hand, as hereafter amended; and
(iv) Badak IV LNG Sales Contract Supply Agreement for
INPEX Contract Area dated August 12, 1991, but effective as of
October 23, 1990, between Pertamina, on the one hand, and Unocal
Indonesia, Ltd. and Indonesia Petroleum, Ltd., on the other hand,
as hereafter amended.
"Support Facilities" means the additional general community
and support facilities to be located adjacent to the Bontang Plant
as described in the Development Plan.
"Taxes" means any present or future taxes, levies, imposts,
duties, fees, assessments, deductions, withholdings or other
charges of whatsoever nature, that may now or hereafter be imposed
or asserted by any jurisdiction or any political subdivision
thereof or any taxing authority therein and all interest, penalties
or similar liabilities with respect thereto.
"Train F" means, collectively, (i) the Additional Plant, (ii)
the Additional Pipeline and (iii) the Support Facilities, in each
case as described in the Development Plan.
"Transfer Certificate" has the meaning set forth in Section
10.4(b) hereof.
"Transferee" has the meaning set forth in Section 10.4(b)
hereof.
"Trust Agreement" means the Bontang IV Trustee and Paying
Agent Agreement among Continental Bank International, as Trustee,
and the Producers, dated as of the date hereof, as hereafter
amended.
SECTION 2. THE ADVANCES
2.1 The Commitments. Upon the terms and subject to the
conditions set forth in this Agreement, each Lender severally, and
not jointly or jointly and severally, agrees to make Advances to
the Borrower in Dollars through its Lending Office. The Advances
shall be made by each Lender on the Borrowing Dates and in the
amounts provided for in Section 2.2 hereof, but in no event in an
aggregate amount that exceeds the amount of its Commitment;
provided that such Commitment has not theretofore been terminated
or canceled pursuant to Section 3.4(a) hereof or Section 3.7 hereof
or otherwise.
2.2 Manner of Borrowing.
(a) The Borrower shall give to the Agent, in each case
not later than noon, New York time, on or prior to the fifth
Business Day preceding each Borrowing Date on which a Borrowing is
to be made, a Notice of Borrowing, in writing, which, subject to
clause (e) of this Section 2.2, shall specify the amount, if any,
of such Borrowing. The amount, if any, to be drawn down on any
Borrowing Date shall be $10,000,000.00 on or prior to June 30, 1993
and $5,000,000.00 thereafter or in each case any larger integral
multiple of $1,000,000.00, except in the case of the final
drawdown, which may be in any amount not exceeding undrawn
Commitments. The total amount to be drawn down on any Borrowing
Date shall be apportioned by the Agent on a pro rata basis among
the outstanding Commitments of the Lenders. A Notice of Borrowing,
once received by the Agent, shall not be revocable by the Borrower.
(b) During the period ending on the earlier of (i) March
31, 1994 or (ii) the Completion Date, the Borrower shall have the
right to elect to borrow from the Lenders on each relevant
Borrowing Date, in addition to the amounts to be borrowed on such
Borrowing Date pursuant to clause (a) of this Section 2.2, an
amount not exceeding (i) the amount of interest, fees, expenses,
taxes and other amounts payable by the Borrower pursuant to
Sections,.2.3, 2.7, 2.8, 3.3, 3.4(b) and 10.6 hereof and in
connection with the effecting of any Pari Passu Swap Indebtedness,
plus (ii) the difference between such amount and the next highest
amount that is $1,000,000.00 or an integral multiple thereof. In
addition, the Borrower similarly shall have the right to elect to
borrow from the Lenders on June 30, 1994 amounts of the type
referred to in the foregoing sentence due on such date but only if
and to the extent that the Borrower and the Agent shall have been
advised by Pertamina on behalf of the Producers that by reason of
the application of Section 7.1(b) of the LNG Sales Contract the
Source of Debt Service accumulated and maintained in the Regular
Reserve Account immediately prior to June 30, 1994 is less than the
amounts so payable. Any election permitted by this Section 2.2(b)
shall be exercised by including the amount to be borrowed in the
Notice of Borrowing given pursuant to Section 2.2(a) hereof. The
amount of such Borrowings shall thereafter be added to the
outstanding principal amount of the Advances and shall bear
interest as specified in Sections 2.3, 2.4, 2.5, 2.6 and 2.7
hereof.
(c) Upon receipt of a Notice of Borrowing, the Agent
shall as promptly as practicable notify each Lender of the
Borrowing Date identified therein. Before 10:00 a.m. New York time
on such Borrowing Date each Lender will make available in Dollars
the amount of such Lender's Advance to be made on such Borrowing
Date in same day settlement funds by credit of Federal or other
immediately available funds satisfactory to the Agent to the
account of the Agent (Western Hemisphere Facility Account No.
900-9-000028) at The Chase Manhattan Bank, N.A., Two Chase
Manhattan Plaza, New York, New York 10081, U.S.A. for the account
of the Borrower or at such other office in New York, New York or
elsewhere as the Agent may from time to time designate by telex (to
be confirmed by letter) to the Lenders. Upon and subject to the
terms and conditions of this Agreement, before 1:00 p.m. New York
time on such Borrowing Date the Agent shall make available to the
Borrower to such account in New York City as shall have been
specified by the Borrower in such Notice of Borrowing on such
Borrowing Date the funds made available to the Agent pursuant to
the next preceding sentence in the same funds as received by the
Agent.
(d) The failure of a Lender to make an Advance to be
made by it on the date specified therefor shall not relieve any
other Lender of its obligation to make its Advance hereunder on
such date, and no Lender shall be responsible for the failure of
any other Lender to make an Advance to be made by such other Lender
on the date specified therefor. Unless the Agent shall have been
notified by a Lender prior to a Borrowing Date (which notice shall
be effective only upon receipt) that such Lender does not intend to
make available to it such Lender's Advance to be made on such date,
the Agent may assume that such Lender has made such Lender's
Advance available to it on such date, and the Agent may, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If the Lender's Advance is not in fact made
available to the Agent by such Lender, the Agent shall be entitled
to recover such amount either on demand from such Lender or on
demand and in accordance with the provisions of Section 3.9 hereof
from the Borrower together with interest thereon at a rate per
annum representing the interest cost to the Agent (as determined by
the Agent using reasonable efforts to minimize such cost) of
funding the amount in question until reimbursement thereof to the
Agent; provided that to the extent such amount is recovered from
the Borrower, interest paid thereon by the Borrower shall not
exceed the rate or rates per annum then applicable to the Advances.
(e) In order to reflect actual project expenditures, the
Drawdown Schedule originally set forth in Schedule 2 hereto shall
be up-dated for each calendar quarter (beginning with the calendar
quarter starting on January 1, 1992) by delivery to the Agent not
less than 15 calendar days prior to the commencement of each
calendar quarter of a new Drawdown Schedule reflecting actual
Borrowings under clause (a) of this Section 2.2 to date and the
schedule of such Borrowings then anticipated to be requested on
each of the remaining Borrowing Dates during the Availability
Period, provided that, except with the prior consent of Majority
Lenders, in no event shall the cumulative amount of Borrowings
under clause (a) of this Section 2.2 as of any Borrowing Date shown
on any such up-dated Drawdown Schedule, or actually made hereunder
as of any Borrowing Date, exceed the cumulative amount of
Borrowings under clause (a) of this Section 2.2 which would have
been made by such Borrowing Date in accordance with the Drawdown
Schedule originally set forth in Schedule 2 hereto.
2.3 Interest. The Borrower shall pay interest on the unpaid
principal amount of all Advances outstanding from time to time at
the applicable interest rates determined in accordance with Section
2.5 or 2.6 hereof, as the case may be, with respect to each
Interest Period. Such interest payable with respect to each
Interest Period shall be paid on the Interest Payment Date at the
end of such Interest Period. Interest on the Advances and any
Deferred Portions shall be calculated from and including the
relevant Borrowing Date up to but not including the date of actual
repayment and shall be computed on the basis of a year of 360 days
and payable for the actual number of days elapsed.
2.4 Election of Interest Periods. The Borrower shall have
the option to elect an Interest Period of three months or six
months to apply to the entire amount of the Borrowings outstanding
for which an Interest Period is then to be determined, except (i)
for the initial Interest Period referred to in clause (i) of the
definition of Interest Period; (ii) for each other Interest Period
during the Availability Period, each of which shall be a
three-month Interest Period; (iii) with respect to any amounts of
principal coming due in approximately three months, to which a
three-month Interest Period shall apply as provided in clause (iv)
of the definition of Interest Period; and (iv) with respect to any
Deferred Portions, to which a three-month Interest Period shall
apply. Such option shall be exercised by delivery to the Agent of
a written or telexed Notice of Interest Period and the Agent shall
as promptly as practicable notify the Lenders of the Interest
Period so elected. If a Notice of Interest Period in respect of
any Interest Period is not received by the Agent at least five
Business Days prior to the commencement of such Interest Period,
the Borrower shall be deemed to have elected an Interest Period of
three months' duration.
2.5 Determination of Interest Rate.
(a) On the Business Day which is two Business Days prior
to the commencement of each Interest Period, the Agent shall fix
the interest rate for the Advances and any Deferred Portion to be
outstanding with respect to and during such Interest Period at the
rate per annum equal to the sum of the Applicable Margin plus the
London Interbank Offered Rate (the London Interbank Offered Rate is
referred to as "LIBOR"). LIBOR for each such Interest Period shall
be the arithmetic mean (rounded upward, if necessary, to the
nearest 1/16 of 1%) of the offered quotations in effect as of
approximately 11:00 a.m., London time, on such date for deposits in
Dollars for a period equal to such Interest Period as displayed on
the "LIBO" page (or any successor page as determined by the Agent)
of the Reuters Screen, as determined by the Agent upon consulting
such "LIBO" page. So long as at least two quotations are available
on the "LIBO" page (or any such successor page) for a period equal
to such Interest Period, LIBOR for such Interest Period shall be
determined in accordance with the preceding sentence on the basis
of the offered quotations as quoted. Any determination by the
Agent pursuant to this Section 2.5(a) shall be conclusive in the
absence of manifest error.
(b) If the Reuters Screen does not at the appointed time
with respect to any Interest Period display at least two offered
quotations, LIBOR for such Interest Period shall be the average
(rounded upward, if necessary, to the nearest 1/16 of 1%) of the
respective rates per annum at which deposits in Dollars are offered
to each of the Reference Banks in the London interbank market as of
approximately 11:00 a.m., London time, on such date for a period
comparable to such Interest Period and in an amount of
$50,000,000.00. The Agent, whose determination shall be conclusive
in the absence of manifest error, shall determine the interest rate
on the above basis as soon as practicable thereafter, New York
time. If for any reason no quotation is furnished by one or more
of the Reference Banks to the Agent, the Agent shall determine such
interest rate on the basis of the quotations furnished by the
remaining Reference Banks.
2.6 Alternative Interest Rates. If, on any date on which an
interest rate is to be fixed pursuant to Section 2.5 hereof, (i)
none of the Reference Banks is able to furnish a quotation to the
Agent for purposes of determining an interest rate pursuant to
Section 2.5(b) hereof or (ii) for purposes of determining an
interest rate pursuant to Section 2.5(b) hereof the Agent is
notified by all of the Reference Banks that deposits in Dollars in
an amount of $50,000,000.00 are not being offered to the Reference
Banks in the London interbank market or (iii) the Agent is notified
by Notice Lenders (as defined in the last sentence of this Section
2.6) that the rates for Dollar deposits displayed on the "LIBO"
page of the Reuters Screen or, in the event that LIBOR for such
Interest Period is being determined pursuant to Section 2.5(b)
hereof, the rates at which Dollar deposits are being offered to the
Reference Banks in the London interbank market, as the case may be,
plus all costs associated with reserves, special deposits, deposit
insurance or similar requirements to be maintained or paid in
accordance with the regulations or other requirements of the Board
of Governors of the Federal Reserve System, the Federal Deposit
Insurance Corporation or any other department, agency or
instrumentality of the United States of America or any state
thereof (collectively, "Reserves") in effect on the date of this
Agreement do not adequately reflect the cost to the relevant
Lenders of making or maintaining for the next succeeding Interest
Period their respective Advances or any Deferred Portion, then the
Agent shall as promptly as practicable give notice of such fact to
the Borrower and the relevant Lenders. During the 30 days next
succeeding the giving of such notice, the Borrower and the relevant
Lenders shall negotiate in good faith in order to arrive at a
mutually satisfactory interest rate which shall be applicable to
such Advances and Deferred Portions to be outstanding during such
Interest Period instead of LIBOR. If within such 30-day period the
Borrower and the relevant Lenders agree in writing upon an
alternative interest rate, such rate shall be substituted for LIBOR
and shall be effective with respect to the relevant amounts from
the commencement of such Interest Period. The Borrower shall pay
to the relevant Lenders interest on such Advances and Deferred
Portions calculated based upon such alternative interest rate plus
the Applicable Margin during such Interest Period. If the Borrower
and the relevant Lenders fail to agree upon such an alternative
interest rate within such 30-day period, the interest rate during
such Interest Period, applicable to each relevant Lender's Advance
and each relevant Lender's Deferred Portion and effective from the
commencement of such Interest Period shall be such rate as such
Lender shall determine (in a certificate delivered by such Lender
to the Agent setting forth the basis of the computation of such
rate, which certificate shall in the absence of manifest error be
conclusive and binding on the Borrower) to be necessary to
compensate each such Lender for its actual out-of-pocket cost, and
costs associated with such Reserves (determined in good faith using
reasonable efforts to minimize the interest cost to the Borrower,
rounded upward, if necessary, to the nearest 1/16 of 1% and
disregarding for such purposes all costs of Reserves in effect on
the date of this Agreement), as of the commencement of such Inter-
est Period, of funds for such Interest Period in an amount equal to
the aggregate principal amount of each relevant Lender's Advances
and each relevant Lender's Deferred Portion to which such Interest
Period relates plus the Applicable Margin. The Agent shall notify
the Borrower of such determination as promptly as practicable.
After the Agent shall have notified the Borrower of such
determination and during the period such interest rate continues to
be applicable, the Borrower may elect to prepay any one or more of
the relevant Notes without premium or penalty (except as provided
in Section 2.7(b) hereof) in accordance with the provisions of
Section 3.5 hereof. For purposes of this Section 2.6, "Notice
Lenders" means at any time Lenders holding in excess of 15% of the
aggregate unpaid principal amount of the Advances, or if no such
Advances are at the time outstanding, Lenders having in excess of
15% of the aggregate amount of the Commitments.
2.7 Interest Rate on Overdue Amounts; Other Indemnities.
(a) The Borrower shall pay interest on overdue principal
of any Note and, so far as may be lawful, on any other overdue
amount owing pursuant to this Agreement, the Notes and the Letter
Agreement, from and including, the date the payment thereof was due
to, but not including, the day of actual payment, at a rate per
annum which shall be 2-1/4% over (i) the arithmetic mean (rounded
upward, if necessary, to the nearest 1/16 of 1%) of the offered
quotations in effect at or about 11:00 a.m., London time, on the
day such rate of interest is determined for deposits in Dollars
with maturities of at least one week and not exceeding six months,
as the Agent may elect, as displayed on the "LIBO" page (or any
successor page as determined by the Agent) of the Reuters Screen as
determined by the Agent upon consulting such "LIBO" page or (ii) if
the Reuters Screen does not at the time of determination display at
least two offered quotations, the average (rounded upward, if
necessary, to the nearest 1/16 of 1%) of the respective rates at
which deposits in Dollars with maturities of longer than six days
and shorter than six months, as the Agent may elect, are offered to
each of the Reference Banks in the London interbank market as of
approximately 11:00 a.m., London time, on the day such rate of
interest is determined in an amount approximately equal to the
aggregate amount of such overdue payment due to the Lenders. If
for any of the reasons specified in clauses (i), (ii) or (iii) of
Section 2.6 hereof an alternative interest rate would be determined
pursuant thereto, then such alternative interest rate shall be
determined and the Borrower shall pay to the relevant Lenders
interest on such overdue principal or other amounts at a rate per
annum that shall be 2-1/4% over such alternative interest rate
without the addition of the Applicable Margin.
(b) To the extent permitted by applicable law, without
prejudice to the other rights of the Lenders under Sections 2.7(a)
and 10.6(b) hereof, the Borrower shall indemnify, without
duplication, each such Lender against, hold each such Lender
harmless from and promptly pay to the Agent on behalf of each
Lender all out-of-pocket costs, losses (excluding loss of profit)
or expenses which each such Lender may sustain or incur as a
consequence of (i) any Borrowing not being made, after notice
thereof has been given by the Borrower, by reason of a failure to
satisfy conditions precedent, except failure to meet the
requirements in Section 5.2(iii) due to changes between the date of
the relevant Notice of Borrowing and the scheduled date for such
Borrowing in the Assumed Interest Rate or the assumptions regarding
forecasted LNG prices in each case as in effect on the date of the
relevant Notice of Borrowing in accordance with the definitions of
"Assumed Interest Rate" and "Debt Coverage Ratio" set forth in
Article 1 hereof, (ii) any prepayment of any Advance (including any
Deferred Portion thereof) or (iii) the failure by the Borrower to
pay when due the principal of or interest on any Note or any other
amount payable under this Agreement or the Letter Agreement,
including but not limited to funding costs and any amounts payable
by such Lender in order to maintain its Advances, including any
Deferred Portion thereof, until the end of the relevant Interest
Period in the event of prepayment or until payment of all amounts
then due by acceleration or otherwise in the event of a failure to
pay, but excluding any such costs, losses or expenses resulting
from prepayment on an Interest Payment Date of amounts for which an
Interest Period ends on such Interest Payment Date as permitted in
accordance with Section 3.6 hereof. In each case involving a
prepayment (other than a prepayment under Section 3.6 hereof for
which no costs, losses or expenses are payable), each Lender shall
act in good faith and use reasonable efforts to minimize the costs,
losses and expenses payable by the Borrower hereunder.
(c) A certificate of any Lender setting forth in
reasonable detail the basis for the determination of the amounts
necessary to indemnify such Lender pursuant to Section 2.7(b) shall
be conclusive as to the determination of such amounts in the
absence of manifest error.
2.8 Fees.
(a) The Borrower hereby agrees to pay a nonrefundable
management fee in the amount specified in and otherwise in
accordance with the letter agreement between the Borrower and the
Coordinators of even date herewith (the "Management Fee Letter
Agreement"). The allocation of such fee shall not be the
responsibility of the Borrower or the Producers.
(b) The Borrower hereby agrees to pay a nonrefundable
agency fee in the amount specified in and otherwise in accordance
with the agency fee letter agreement between the Borrower and the
Agent of even date herewith (the "Agency Fee Letter Agreement").
(c) The Borrower agrees to pay to the Agent for the
account of each Lender a commitment fee at the rate of 1/4 of 1%
per annum on the daily undrawn amount of such Lender's Commitment
during the period from and including the Effective Date to and
including the last day of the Availability Period. Such fee will
be calculated on an estimated basis on the first day of each
Interest Period in accordance with the undrawn amount of such
Lender's Commitment on that day and amounts in respect thereof
shall be accumulated for payment and paid in accordance with
Sections 3.2 and 3.3 of the Trust Agreement, subject to adjustment
when any Advance is made hereunder. Such commitment fee shall be
calculated on the basis of the actual number of days elapsed and a
360-day year and shall be paid, in accordance with Section 3.2
hereof, initially on the first March 31, June 30, September 30 or
December 31 to occur within three months after the Effective Date
and thereafter quarterly in arrears, with the final payment on the
Interest Payment Date on or immediately following the last day of
the Availability Period.
2.9 The Notes.
(a) The Advances of each Lender shall be evidenced by
two promissory notes of the Borrower (each a "Note"), one to be
designated A Note and the other to be designated B Note, each to be
substantially in the form of Exhibit C-1 hereto and each payable to
the order of such Lender for the account of its Lending Office in
an amount equal, in the case of the A Note of such Lender, to 60%
of such Lender's Commitment or, if less, the aggregate unpaid
principal amount of such Lender's Advances attributable to such
Note in accordance with clause (b) of this Section 2.9 and, in the
case of the B Note of such Lender, to 40% of such Lender's
Commitment, or, if less, the aggregate unpaid principal amount of
such Lender's Advances attributable to such Note in accordance with
clause (b) of this Section 2.9. Each Note shall be dated the date
of its delivery pursuant to Section 5.1 hereof, shall have the
blanks therein appropriately completed, and shall bear interest as
specified in Sections 2.3, 2.4, 2.5, 2.6 and 2.7 hereof. Each
Lender shall, and is hereby irrevocably authorized by the Borrower
to, endorse on the schedule attached to each Note held by it or on
a continuation of such schedule attached to and made a part of such
Note an appropriate notation evidencing the date and amount of each
Advance made by such Lender and the date and amount of each
payment, prepayment or deferral of principal made by the Borrower
with respect thereto, in each case as attributable to such Note in
accordance with clause (b) of this Section 2.9, and the Agent and
any other Person shall be entitled to act in all respects as if
such endorsements had been so made. The failure so to record any
such amount or any error in so recording any such amount shall not,
however, limit or otherwise affect the obligations of the Borrower
hereunder or under any of the Notes to repay the principal amount
of all Advances thereunder together with all interest accruing
thereon.
(b) For the avoidance of doubt, it is hereby expressly
agreed that each Advance made by each Lender and each payment,
prepayment or deferral of principal made by the Borrower shall be
attributed on a pro rata basis (based on outstanding principal
amount or, if no principal amount is outstanding at the time of
such Advance, based on the amount of such Lender's Commitment) to
each of the Notes held by each Lender at the time of such Advance,
payment, prepayment or deferral, as the case may be.
(c) The B Notes may refer to their having the benefit of
the Risk Participation Agreement, but this shall in no way affect
the Borrower's rights or obligations hereunder in respect of the B
Notes. In furtherance of the foregoing, it is hereby expressly
confirmed and agreed that insofar as this Agreement is concerned,
the A Notes and the B Notes shall rank and be treated pari passu in
all respects without preference or priority of any kind. In
addition, each holder of a B Note hereby authorizes and directs the
Agent to deduct from each payment of interest received in respect
of each B Note the risk participation fee prescribed in the Risk
Participation Agreement and to pay the same to the Risk Participant
as provided therein and, otherwise, to comply in all respects on
behalf of the Lenders with the terms and conditions thereof.
2.10 Repayment on Maturity Dates; Deferral.
(a) Subject to Section 2.10(b), on each Maturity Date
the Borrower shall repay, as provided in Section 3.1 hereof, an
amount of principal equal to the percentage of the principal amount
of the Advances outstanding at the end of the Availability Period
set forth immediately below; provided that on the Final Maturity
Date the Borrower shall repay in full the aggregate amount of the
Advances then outstanding.
Percentage of
Maturity Date Advances Payable
1st to 2nd 1.5%
3rd to 8th 2.0%
9th to 30th 2.5%
31st to 40th 3.0%
(b) If after application of amounts to the payment of
interest and other amounts payable with respect to the Advances on
any Maturity Date other than the Final Maturity Date, the aggregate
of the amounts held in the Debt Service Account and the Reserve
Account will be insufficient on such Maturity Date to pay all of
the principal payable on such Maturity Date, then the Borrower may
elect (by giving not later than noon New York time on or prior to
the seventh Business Day preceding such Maturity Date a Notice of
Deferral to the Agent, who shall as promptly as practicable notify
the Lenders thereof) to defer to the next succeeding Maturity Date
payment of (i) the amount of principal for which such funds will be
insufficient (pro rata for the account of each Lender to the unpaid
principal amount of the Notes) plus (ii) the amount (pro rata for
the account of each Lender to the unpaid principal amount of the
Notes) of unpaid expenses and indemnities hereunder of which the
Agent shall have notified the Borrower pursuant to Section 2.11 or
10.6 hereof following the date of such Notice of Deferral and on or
prior to such Maturity Date to the extent such amount does not
exceed the amount of principal actually to be paid on such Maturity
Date (the sum of the amounts specified in clauses (i) and (ii)
being referred to as the "Deferred Portion"); provided that any
amount deferred in accordance with the foregoing clause (ii) shall
be added to the outstanding principal amount of the Advances and
bear interest from and including such Maturity Date as specified in
Sections 2.3, 2.4, 2.5, 2.6 and 2.7 hereof; and provided further
that any election pursuant to this Section 2.10(b) shall be subject
to the following being true on the Maturity Date on which such
insufficiency exists:
(i) The Borrower shall not have previously deferred
payments of any principal in accordance with this Section 2.10(b)
either (x) on the four consecutive Maturity Dates immediately
preceding such Maturity Date or (y) on a total of 15 previous
Maturity Dates, whether or not consecutive;
(ii) The LNG Sales Contract shall be in full force and
effect;
(iii) No material breach or default under the LNG
Sales Contract shall exist and no notice of incipient material
breach or default shall have been given by any party thereto;
(iv) No authorization or approval required for the
continued validity and enforceability of the LNG Sales Contract
shall have been revoked or suspended; and
(v) No Event of Default shall have occurred and be
continuing or would occur with the giving of notice or the lapse of
time.
2.11 Notices. The Agent shall promptly give the Borrower
and the Lenders (i) notice of each interest rate (or interest
rates) determined pursuant to Sections 2.5, 2.6 or 2.7 hereof, the
date of each of the next Interest Payment Dates with respect to
which the interest payable is then calculable, the date of the next
Maturity Date and the amount of principal or interest on the
Advances, the amount of commitment fees estimated in accordance
with Section 2.8(c) hereof to be paid to the Lenders on each of
such dates and the amount of the fee referred to in Section 2.8(b)
hereof, (ii) as otherwise provided in this Agreement, notice of
other relevant amounts due and payable hereunder, and (iii) the
notices to the Borrower by the Agent that Section 3.2(b) of the
Trust Agreement requires this Agreement to provide for. The Agent
shall provide the foregoing information to the Borrower at the time
and in the manner specified in Section 3.2(b) of the Trust
Agreement; provided that no failure or delay in the giving of such
notice shall discharge or excuse the Borrower from or permit the
Borrower to delay making any payment hereunder.
SECTION 3. PAYMENTS
3.1 Allocation of Amounts; Substitute Payment.
(a) Unless otherwise provided in this Agreement, all
payments by the Borrower to the Agent for the account of the
Lenders shall be allocated as provided for in Section 3.3 of the
Trust Agreement. All payments by the Borrower of commitment fees
shall be made to the Agent for the account of the Lenders, pro rata
to their respective Commitments. All payments referred to in this
Section 3.1 which are received by the Agent in the manner provided
in Section 3.2 hereof shall be deemed to have been made to the
Lenders, and such payments to the Agent shall discharge the
Borrower from any further liability to make such payments to the
Lenders.
(b) Notwithstanding anything to the contrary contained
in this Agreement or in any Note, but subject always to the
provisions of Section 9 hereof, if the Agent shall have notified
the Borrower that it shall have become unlawful or, in the opinion
of the Agent, impracticable for any payment to be made as
aforesaid, the Borrower shall pay to each Lender for its own
account in such funds as are required by Section 3.2 hereof or in
such other manner as may be agreed between the Borrower and the
relevant Lender and to such account as may be specified by the
relevant Lender to the Borrower, the amount of the relevant
Lender's portion of the payment in question. Each such Lender
shall keep the Agent fully informed as to all amounts received by
it and as to all agreements made between it and the Borrower as
referred to above.
3.2 Funds of Payment.
(a) Each payment made by the Borrower under this
Agreement with respect to the Advances, the Notes and the Letter
Agreement shall be made in Dollars and in same day settlement funds
by credit of Federal or other immediately available funds
satisfactory to the Agent (or such funds as may from time to time
be customary for the settlement in New York City of transactions in
Dollars) not later than 11:00 a.m. New York time on the Business
Day on which such payment is due by credit to the account of the
Agent (Western Hemisphere Facility Account No. 900-9-000028) at The
Chase Manhattan Bank, N.A., Two Chase Manhattan Plaza, New York,
New York 10081, U.S.A. or to such other account of the Agent as the
Agent may at any time or from time to time designate by written
notice to the Borrower. The Agent will as promptly as practicable
cause each such payment received by it to be distributed to each
Lender (in each case for the account of such Lender's Lending
Office) in like funds with respect to each payment received by such
Agent for the account of such Lenders or the holders of the Notes.
(b) Whenever any payment hereunder or under any Note
falls due on a day which is not a Business Day, the due date for
such payment shall be advanced to the next succeeding Business Day,
unless the next succeeding Business Day falls in another calendar
month, in which case such payment shall be advanced to the
immediately preceding Business Day.
3.3 Set-Off, Counterclaim and Taxes. The Borrower will
(i) pay all amounts of principal of and interest on the Notes and
all other amounts payable under this Agreement, the Notes and the
Letter Agreement ("Payments") without set-off or counterclaim, and,
to the extent permitted by law, free and clear of, and without
deduction or withholding for or on account of, any Taxes, and (ii)
pay to, indemnify for and hold each of the Lenders harmless from
and against any Taxes which are stamp or like taxes imposed
directly or indirectly with respect to the preparation, execution,
delivery, registration, filing or recording of this Agreement, the
Notes, the Producers Agreement, the Trust Agreement, the Letter
Agreement or any document connected herewith or therewith and any
Taxes which are imposed directly or indirectly on any Lender or the
Agent, with respect to this Agreement, the Notes, the Producers
Agreement, the Trust Agreement, the Letter Agreement, any document
connected herewith or therewith or the transactions contemplated by
any of the foregoing documents or any Payments. Notwithstanding
the foregoing, the provisions of the first sentence of this Section
3.3 shall not require the Borrower to pay any Excluded Taxes. If
any Taxes (other than Excluded Taxes) are required by law to be
deducted or withheld from any Payment, the Borrower will increase
the amount of such payment to the Agent, and the Lenders through
the Agent, to the extent necessary in order that the net amount
received by the Agent, and the Lenders through the Agent, after
deduction of all Taxes required to be deducted or withheld with
respect to such Payment as so increased and any other Taxes payable
by the Lenders with respect to the amount of such increase, will
equal the full amount of the Payment due and payable to the
relevant Lender or Lenders. The Borrower will furnish to each
Lender, in such number of copies as such Lender shall request,
certified copies of tax receipts or other appropriate evidence of
payment, satisfactory to such Lender, evidencing the payment of all
Taxes levied or imposed upon any Payment within 45 days after the
date any such payment is due pursuant to applicable law. If any
Taxes (other than Excluded Taxes) are imposed on with respect to
any Payment or are required to be paid by the Agent or any Lender
on or with respect to any Payment or in connection with this
Agreement or the Notes, the Borrower will pay or otherwise
indemnify and hold the Agent and each Lender harmless from any such
Taxes or will reimburse to the Agent and each Lender on demand,
subject to the provisions of Section 3.9 hereof, such amounts as
may be necessary in order that the net amount received by the Agent
and each Lender pursuant to such indemnity or reimbursement, after
deduction of all Taxes required to be deducted, withheld or
otherwise paid by the Agent and the Lenders with respect to such
amount, shall equal the amount of such Taxes so imposed or
otherwise subject to indemnity and reimbursement.
If a Lender shall receive a refund of any Taxes paid by the
Borrower pursuant to this Section 3.3 by reason of the fact that
such Taxes were not correctly or legally asserted, the Lender shall
within 45 days after receipt of such refund pay to the Borrower the
amount of such refund, as determined solely by the Lender; provided
that in no event shall the amount paid by the Lender to the
Borrower pursuant to this sentence exceed the amount of Taxes
originally paid by the Borrower; and provided further that no
Lender shall have any obligation under this Agreement to claim or
otherwise seek to obtain any such refund.
3.4 Change of Law.
(a) Notwithstanding any other provision in this
Agreement to the contrary, if any change in any applicable law,
rule or regulation or in the interpretation or administration
thereof by any governmental authority charged with the inter-
pretation or administration thereof, or compliance by any Lender
(or its Lending Office) with any new request, interpretation or
directive of any relevant central bank or other governmental
authority, shall make it unlawful for any Lender (or its Lending
Office) to (i) maintain its Commitment, then the Commitment of such
Lender shall thereupon terminate, or (ii) maintain or fund its
Advances, then the Commitment of such Lender shall thereupon
terminate, and the principal amount of the Notes held by such
Lender then outstanding shall be repaid, together with interest
accrued thereon and any other amounts payable to such Lender under
this Agreement, the Notes held by such Lender or the Letter
Agreement, commencing immediately as an accelerated mandatory
prepayment in accordance with Sections 3.2 and 3.3 of the Trust
Agreement; provided that all such amounts shall be paid on or prior
to the Final Maturity Date. Upon the occurrence of any such change
or request making it unlawful for a Lender to maintain its
Commitment or maintain or fund Advances as aforesaid, such Lender
shall promptly forward to the Agent in writing, and the Agent shall
as promptly as practicable forward to the Borrower, evidence
certified by such Lender as to such change or request.
(b) If any change in any applicable law, rule or
regulation or in the interpretation or administration thereof, or
compliance by any Lender with any request (whether or not having
the force of law) of any relevant central bank or other
governmental authority, shall change the basis of taxation of
payments to any such Lender (or its Lending Office) of the
principal of or interest on any of the Notes or any other amounts
payable under this Agreement or the Letter Agreement (except for
Excluded Taxes) or shall impose, modify or deem applicable any
similar requirement not in effect on the date of this Agreement in
respect of Reserves against assets of, deposits with or for the
account of, or credit extended by, or the Commitment of, any such
Lender (or its Lending Office) (except for Reserves in effect on
the date of this Agreement), or shall impose on any such Lender (or
its Lending Office) or the London interbank market any other
condition not in effect on the date of this Agreement directly
affecting this Agreement, any of the Notes, the Letter Agreement or
the Advances and the result of any of the foregoing is to increase
the cost to any Lender of maintaining its Commitment or making or
maintaining its Advances or to reduce the amount of any such
payments received or receivable by any such Lender (or its Lending
Office) hereunder, by an amount deemed by such Lender to be
material, then the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for
such additional cost or reduction. Such additional amount or
amounts shall be paid on the Interest Payment Date for the Interest
Period to which such costs relate. Each Lender agrees that it will
promptly notify the Borrower of any event which will entitle such
Lender to an additional amount pursuant to this Section 3.4(b). A
certificate of such Lender setting forth the basis in reasonable
detail for the determination of such additional amount necessary to
compensate such Lender as aforesaid shall be conclusive as to the
determination of such amount in the absence of manifest error.
After the receipt of any notice from any Lender indicating that
such Lender is entitled to an additional amount pursuant to this
Section 3.4(b), the Borrower may elect to prepay the relevant Note
or Notes of such Lender without premium or penalty (except as
provided in Section 2.7(b) hereof) in accordance with the
provisions of Section 3.5 hereof; provided that any such prepayment
may be made only if the amounts set forth in the certificate
described in the preceding sentence are paid by the Borrower prior
to or simultaneously with such prepayment.
(c) Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 3.4(a) or (b) hereof
with respect to such Lender, it will, if requested by the Borrower,
and in consultation with the Agent, use reasonable efforts to
designate another Lending Office for its Commitment or its Advances
and/or for a period of thirty calendar days after the date of such
request use reasonable efforts to transfer its Commitment and
Advances to another Person in accordance with the procedures set
forth in Section 10.4, in either case with the object of avoiding
the consequence of the event giving rise to the operation of
Section 3.4(a) or (b) hereof; provided that in either case such
designation or transfer can be made on such terms that neither such
Lender nor its Lending Office will suffer any economic, legal or
regulatory disadvantage. Nothing in this Section 3.4(c) shall
affect or postpone any of the obligations of the Borrower or the
rights of the Lenders provided in Section 3.4(a) or (b) hereof.
3.5 Certain Prepayments. Whenever the Borrower has elected
to prepay any relevant Note or Notes or any Deferred Portion
thereof pursuant to Section 2.6 or 3.4(b) hereof, the Borrower
shall give the Agent notice of such prepayment at least five
Business Days in advance thereof, and on the date specified in such
notice (which shall be a Business Day and a single date) the
principal then outstanding of the affected Note or Notes shall be
repaid in full, together with interest accrued thereon and, to the
extent then ascertainable, any other amount payable under this
Agreement to the Lender or Lenders holding such Note or Notes. Any
notice of prepayment under this Section 3.5 shall be irrevocable.
3.6 Other Prepayments. The Borrower may, upon not less than
five Business Days' irrevocable prior notice to the Agent prepay
the Notes in whole or in part on a pro rata basis (based on
outstanding principal amount) on any Interest Payment Date for the
Notes being prepaid, and if in part in an amount which is equal to
$10,000,000.00 or any larger integral multiple of $1,000,000.00.
Each partial prepayment of any Notes made pursuant to this Section
3.6 shall be applied to the installments of principal due
thereunder in the inverse order of maturity. Except as provided in
Section 2.7(b) hereof, such prepayments shall be without premium or
penalty; provided that the right to prepay without premium or
penalty shall not apply to any amounts declared forthwith due and
payable in accordance with Section 7 hereof. All prepayments
permitted pursuant to this Section 3.6 shall be made together with
payment of accrued interest on the principal amount prepaid, and,
to the extent then ascertainable, any other amount payable under
this Agreement or the Notes.
3.7 Cancellation of Commitments. The Borrower may without
premium or penalty (a) upon not less than 30 days' irrevocable
prior notice to the Agent, cancel the Commitments of the Lenders in
whole or in part, and if in part in an aggregate amount of
$10,000,000.00 or any larger integral multiple of $1,000,000.00, by
reducing amounts to be drawn down pursuant to the Drawdown Schedule
in inverse order, all such cancellations to be on a pro rata basis
as among the Lenders based on their respective Commitments, or (b)
upon not less than five Business Days' irrevocable prior notice to
the Agent, cancel the Commitment of any Lender all of whose Notes
are prepaid in accordance with the provisions of Section 3.5
hereof.
3.8 No Reborrowing. The Commitments are not revolving in
nature, and no amount repaid or prepaid under this Agreement may be
reborrowed hereunder.
3.9 Payments to be Made at End of Interest Period. Except
for amounts owing pursuant to Sections 3.4(a), 7 and 10.6 hereof
which become payable as provided in such Sections, and
notwithstanding any provision of any Section other than Sections
3.4(a), 7 and 10.6 hereof to the contrary, in view of the nature of
the Borrower and the nature of the Source of Debt Service from
which payments hereunder will be made, all amounts becoming payable
hereunder, which would otherwise be due on a date which does not
fall on an Interest Payment Date instead shall be due on the
Interest Payment Date next to occur thereafter and prior to which
the Borrower is notified that such amount is payable, subject in
each such case to the relevant provisions of Sections 3.2 and 3.3
of the Trust Agreement; provided that all amounts due and payable
under this Agreement and the Notes shall be paid on or prior to the
Final M
Maturity Date.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
The Borrower and, only to the extent expressly stated to be
in its individual capacity, Continental Bank International,
represent and warrant to the Lenders that:
4.1 Power and Authority. The Borrower has full power,
authority and legal right to incur the Indebtedness and other
obligations provided for in this Agreement, the Notes and the
Letter Agreement, to execute and deliver this Agreement, the Notes,
the Trust Agreement and the Letter Agreement and the other
documents contemplated hereby or referred to herein to which the
Borrower is a party, to borrow, pay and repay hereunder and under
the Notes and the Letter Agreement and to perform and observe the
terms and provisions hereof and thereof. Continental Bank
International, in its individual capacity, is a banking corporation
duly organized and validly existing in good standing under the laws
of the United States of America and has the full power, authority
and legal right to execute, deliver and perform this Agreement, the
Notes, the Trust Agreement and the Letter Agreement as Trustee.
4.2 Legal Action. All necessary legal action has been taken
to authorize the Borrower (i) to execute and deliver this
Agreement, the Notes, the Trust Agreement, the Letter Agreement and
the other documents contemplated hereby or referred to herein to
which the Borrower is a party, (ii) to borrow, pay and repay
hereunder and under the Notes and the Letter Agreement and (iii) to
perform and observe the terms and provisions of this Agreement, the
Notes, the Trust Agreement and the Letter Agreement.
4.3 Restrictions. There is no Legal Requirement and no
contractual or other obligation binding on the Borrower or
Continental Bank International in its individual capacity, that is
or will be contravened (or, in the case of a contractual
obligation, in respect of which a breach has occurred or will
occur) by reason of the execution and delivery of this Agreement,
the Notes, the Trust Agreement, the Letter Agreement or any of the
other documents contemplated hereby or referred to herein to which
the Borrower is a party, the making of Borrowings by the Borrower
hereunder or the performance or observance by the Borrower of any
of the terms or provisions hereof or thereof in each case in the
manner contemplated hereby and thereby.
4.4 Registration and Approvals. No registrations,
declarations or filings with, or consents, licenses, approvals or
authorizations of, any legislative body, governmental department or
governmental authority necessary under any applicable laws are
required of the Borrower or Continental Bank International in its
individual capacity for the due execution and delivery by the
Borrower, or for the performance by the Borrower, of this
Agreement, the Notes, the Trust Agreement, the Letter Agreement or
any of the other documents contemplated hereby or referred to
herein to which the Borrower is a party, or to authorize the
Borrowings hereunder or to assure the validity or enforceability
hereof or thereof, except in each case for those as have been made
or obtained and copies of which have been furnished to the Agent
and which are in full force and effect.
4.5 Agreement Binding. This Agreement, the Trust Agreement
and the Letter Agreement constitute, and the Notes when executed
and delivered pursuant hereto for value will constitute, the legal,
valid and binding obligations of the Borrower enforceable against
the Borrower to the extent specified in Section 9 hereof in
accordance with its and their respective terms, subject in the case
of enforcement to any applicable bankruptcy, insolvency, moratorium
or other similar laws affecting the enforcement of creditors'
rights generally and to equitable principles of general
application.
4.6 Ranking of Advances; Encumbrances. The Borrower has no
outstanding Indebtedness charging or to be paid out of the Source
of Debt Service or Borrowed Amounts other than the obligations and
liabilities of the Borrower hereunder and under the Notes and the
Letter Agreement and any Indebtedness permitted by Section 6.4
hereof. The Borrower has not created, incurred or suffered to
exist (i) any Encumbrance on the Source of Debt Service received or
receivable by it prior to its deposit in the Bontang IV Payment
Account, or (ii) any Encumbrance on any Borrowed Amounts, in each
case under clause (i) or (ii) resulting from any act of the
Borrower or any failure by the Borrower to perform any of its
obligations under this Agreement or the Trust Agreement or any of
its duties thereunder, except any Encumbrance permitted pursuant to
Section 6.2 hereof.
4.7 Litigation. There is no suit, action, proceeding or
investigation pending against the Borrower or, to the knowledge of
the Borrower, threatened against the Borrower, which (a) questions
the validity of this Agreement, any Note, the Trust Agreement or
the Letter Agreement, or any action taken or to be taken by the
Borrower pursuant hereto or thereto, (b) affects or is likely to
affect the amount of the Source of Debt Service received by it or
to the best of the Borrower's knowledge, receivable by it, or (c)
would or is likely to affect adversely the Borrower's ability to
perform its obligations under this Agreement, the Notes, the Trust
Agreement or the Letter Agreement or any other agreement to which
it is a party or by which it or its properties or assets is bound.
4.8 Compliance with Other Instruments, etc. Continental Bank
International in its individual capacity is not in violation of any
term of its charter or by-laws. The Borrower is not in violation
of any term of any agreement or any instrument to which it is a
party or by which it or any of its properties or assets is bound or
of any Legal Requirement, which violation would or is likely to
have an adverse effect on the Borrower's ability to perform its
obligations under this Agreement, the Notes, the Trust Agreement,
the Letter Agreement or any other agreement to which it is a party
or by which it or its property or assets are bound.
4.9 No Defaults. No Event of Default referred to in Sections
7(a) through 7(e) hereof has occurred and is continuing and no
event has occurred or failed to occur, the occurrence or
non-occurrence of which, with the giving of notice or lapse of time
or both, would constitute such an Event of Default, and the
Borrower is not in violation of any of its obligations under the
Trust Agreement.
4.10 Trust Agreement. The copy of the Trust Agreement
delivered to the Lenders on the Effective Date is a true, complete
and correct copy thereof as in effect on the Effective Date.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions Precedent to the Initial Advances. Except
as,the Majority Lenders may otherwise consent and, with respect to
each of the documents and opinions specified in clause (i), clause
(j), clause (1) and clause (m) of this Section 5.1, except as each
Lender may otherwise consent, the obligation of each Lender to make
the initial Advance to be made by such Lender hereunder is subject
to the satisfaction of the following condition precedent that the
Agent shall have received the following documents and opinions, all
to be in form and those referred to in clauses (a) through (m) and
(o) through (q) to be in substance satisfactory to the Lenders:
(a) in the case of the Agent only, Notes payable to the order
of each Lender complying with the requirements of Section 2.9
hereof;
(b) a signed copy of an opinion of Kelley Drye & Warren,
counsel to the Borrower, substantially in the form of Exhibit D-1
hereto, dated the date of such Advance;
(c) a signed copy of an opinion of Mayer, Brown & Platt,
counsel to the Borrower, substantially in the form of Exhibit D-2
hereto, dated the date of such Advance;
(d) a signed copy of an opinion of the Special Legal Advisor
to the President Director of Pertamina, substantially in the form
of Exhibit E-1 hereto, dated not more than five Business Days prior
to the date of such Advance;
(e) a signed copy of an opinion of Baker & Botts, special
counsel to Virginia Indonesia Company, OPICOIL Houston, Inc.,
Virginia International Company, Ultramar Indonesia Limited, Union
Texas East Kalimantan Limited, Universe Gas & Oil Company, Inc.,
Total Indonesie, Unocal Indonesia, Ltd. and Indonesia Petroleum,
Ltd., substantially in the form of Exhibit E-2 hereto, dated the
date of such Advance;
(f) a signed copy of an opinion of White & Case, special New
York counsel to Pertamina, substantially in the form of Exhibit E-3
hereto, dated the date of such Advance;
(g) signed copies of opinions of counsel for each of the
Producers other than Pertamina, dated not more than five Business
Days prior to the date of such Advance;
(h) a signed copy of an opinion of Skadden, Arps, Slate,
Meagher & Flom, special counsel to the Agent and the Lenders,
substantially in the form of Exhibit F hereto, dated the date of
such Advance;
(i) a duly executed copy of the Trust Agreement with all
amendments to the date of the initial Advance certified by the
Borrower;
(j) a duly executed copy of the Producers Agreement;
(k) a copy of a notice from the Producers to the Borrower
that they have approved the form and terms of this Agreement and
authorizing and requesting the execution and delivery of this
Agreement by the Borrower as contemplated by Section 3.1 of the
Trust Agreement;
(l) copies of each of the executed and delivered Construction
Documents with all amendments to the date of such Advance certified
by Pertamina, but not including Exhibit A (Technical) to the
Bontang LNG Expansion Project Train F Agreement (Contract No.
B50-JMC-001);
(m) a certificate of Pertamina and, with respect to each such
agreement to which each representative referred to in Section 12.3
of the Trust Agreement is a party, of such representative, to the
effect that the copies of (i) the Development Plan, (ii) the Basic
Agreements and (iii) the payment instructions issued by Pertamina
to each of the Buyers pursuant to Section 10.4 of the LNG Sales
Contract, in each case as amended, provided to the Agent on the
date hereof were true, correct and complete copies of such
documents with all amendments and that no change has been made in
such documents since the date of this Agreement, except-for such
changes as are permitted without the consent of the Majority
Lenders pursuant to the Producers Agreement;
(n) a copy of the most recent statements, entitled
"Certificate of Gas Reserves Nilam Field, East Kalimantan,
Indonesia, as of January 31, 1986," "Certificate of Gas Reserves
Badak Field, East Kalimantan, Indonesia, as of January 31, 1986,"
"Certificate of Gas Reserves," Certain Fields, East Kalimantan,
Indonesia, as of January 31, 1986," "Certificate of Gas Reserves,
Bekapai, Handil, and Tambora Fields Operated by Total Indonesie,
East Kalimantan, Indonesia, as of January 31, 1986," "Certificate
of Gas Reserves, Tambora Field, East Kalimantan, Indonesia, as of
May 1, 1989," "Certificate of Gas Reserves, Tunu Field, East
Kalimantan, Indonesia, as of May 1, 1989," and "Certificate of Gas
Reserves, Attaka Field, East Kalimantan, Indonesia, as of January
31, 1986," each of which has been prepared by DeGolyer and
MacNaughton, relating to the gas reserves in the Badak and certain
other East Kalimantan fields, together with (i) the letter dated
June 3, 1991 from DeGolyer and MacNaughton to the Agent relating to
such gas reserves as of December 31, 1989 and December 31, 1990 and
(ii) reconciliations indicating, as of the date hereof, the suffi-
ciency of such gas reserves to meet the Seller's Gas Supply
Obligation;
(o) a certificate of Pertamina to the effect that (i)
Property Insurance Policy No. N16164 dated June 1991, together with
any amendments, issued by P.T. Tugu Pratama Indonesia in favor of
Pertamina, among others, covering the Bontang Plant (excluding
Train F) and (ii) Contractors "All Risks" Insurance Policy No.
91030, dated June 17, 1991, together with any amendments, issued by
P.T. Tugu Pratama Indonesia in favor of Pertamina, among others,
covering Train F have been delivered to the Agent prior to the date
hereof and, except as permitted by Section 1.11 of the Producers
Agreement, remain in full force and effect in compliance with
Section 1.11 of the Producers Agreement;
(p) copies certified by the Borrower to be true and correct
as of the date of the initial Advance of (i) the designation of
each entity and individual authorized to give borrowing
instructions under Section 3.4(a) of the Trust Agreement, (ii) the
borrowing instructions to the Borrower from an entity and
individual so designated, and (iii) specimen signatures of the
persons who are authorized to act for the Borrower under and in
accordance with the terms of this Agreement, the Notes, the Trust
Agreement and the Letter Agreement;
(q) a report of Merlin Associates with respect to the
technological, budgeting, scheduling and related risks associated
with the construction of the Additional Plant; and
(r) certified copies of all required or appropriate
authorizations and consents of all relevant governmental
authorities of Indonesia (certified by Pertamina) in connection
with the transactions contemplated by this Agreement, the Notes,
the Letter Agreement and the Producers Agreement.
All legal matters in connection with the transactions contemplated
hereby and the making of the initial Advances, and all documents
and instruments evidencing such matters or incident thereto shall
be satisfactory in form and substance to special counsel to the
Lenders, and special counsel to the Lenders shall have received all
such other documents and instruments, or copies thereof, certified
if requested, as they may reasonably request in order to enable
them to pass upon such matters.
5.2 Conditions Precedent to the Initial and Subsequent
Advances. Except as the Majority Lenders may otherwise consent
and, with respect to each of the conditions precedent specified in
clause (ii)(A), clause (iii), clause (iv) and clause (vi) of this
Section 5.2, except as each Lender may otherwise consent, the
obligation of each Lender to make each Advance to be made by such
Lender hereunder (including the initial such Advance) is subject to
the further conditions precedent (i) that the Agent shall have
received a Notice of Borrowing in accordance with the provisions of
Section 2.2(a) hereof, (ii) that on the date of the making of such
Advance and after giving effect thereto (A) no Event of Default
shall have occurred and be continuing and no event shall have
occurred or failed to occur the occurrence or non-occurrence of
which with the giving of notice or lapse of time or both, would
constitute an Event of Default, and (B) the representations and
warranties of the Borrower contained in this Agreement and of the
Producers contained in the Producers Agreement shall be true and
correct on and as of the date of the making of such Advance with
the same effect as though such representations and warranties had
been made on and as of such date, (iii) that the Agent shall have
received from the Borrower a statement from the Producers
conforming to the requirements of Section 6.1(b) hereof indicating
that the Debt Coverage Ratio is not less than 1.5, (iv) that there
shall have been no material adverse change (x) since May 4, 1991,
in the business, assets, financial condition or results of
operation of the Borrower or any of the Producers which affects
materially and adversely, or would be likely to affect materially
and adversely, the performance by Pertamina of or the ability of
Pertamina to perform its obligations under the LNG Sales Contract,
or (y) in the operation of the Bontang Plant, (v) that the
authorizations and consents described in Section 5.1(r) hereof
shall be in full force and effect and (vi) no event shall have
occurred or circumstance exist that renders impracticable any of
the events set forth in clauses (i), (ii) or (iii) of the
definition of Completion Date in Section 1 hereof.
5.3 Representations. The making of each Borrowing hereunder
shall be deemed to be a representation and warranty by the Borrower
as of the date of such Borrowing that the facts specified in
Section 5.2(ii)(A) hereof as to Sections 7(a) through 7(e) hereof
only, Section 5.2(ii)(B) hereof and Section 5.2(iv) hereof in each
case as to the Borrower only are true and correct on the date of
such Borrowing.
SECTION 6. COVENANTS
Until payment in full of all of the Notes, and of all other
amounts due and owing under this Agreement at the time the Notes
are paid in full, unless compliance with the provisions of this
Section shall have been waived by the Majority Lenders, the
Borrower covenants and agrees with the Lenders that;
6.1 Information. The Borrower shall provide or cause to be
provided to the Agent:
(a) as soon as possible and in any event within 45 days
after the end of the first three calendar quarters in each year
commencing with the quarter ending September 30, 1991, for each
such quarter, and within 45 days after the end of each calendar
year, for such year and for the final calendar quarter thereof, a
statement setting forth for the relevant period or periods (i) the
Gross Invoice Amount invoiced under the LNG Sales Contract, (ii)
the amount of such Gross Invoice Amount received by the Borrower,
and (iii) the debits and credits from the Debt Service Account and
Reserve Account and all subaccounts thereof (as provided in the
Trust Agreement);
(b) as soon as possible and in any event within 30 days
after the commencement of each calendar quarter, a statement in
writing setting forth (i) the Debt Coverage Ratio as of the
commencement of such calendar quarter, (ii) the Source of Debt
Service reasonably anticipated to be payable in each calendar
quarter to the Final Maturity Date, (iii) the aggregate principal,
interest and other amounts reasonably anticipated to be payable
during each calendar quarter to the Final Maturity Date under this
Agreement, the Notes and the Letter Agreement, and (iv) the
reasonably anticipated Gross Invoice Amount under the LNG Sales
Contract in each calendar quarter to the Final Maturity Date, such
statement to be prepared using the most recent assumptions in
effect in accordance with the last paragraph of the definition of
Debt Coverage Ratio in Section I hereof;
(c) information of the type referred to in clauses (a)
and (b) of this Section 6.1 at such times other than those
specified above as the Agent may reasonably request;
(d) as soon as a Responsible Officer of the Borrower
obtains actual knowledge thereof, notice of each Event of Default
and each event which has occurred or failed to occur, the
occurrence or non-occurrence of which with the giving of notice or
lapse of time would constitute an Event of Default; and
(e) as soon as the Borrower receives notice from
Pertamina that the events set forth in clauses (i), (ii), and (iii)
of the definition of Completion Date have occurred, a written
notice together with the original copy of the notice of Pertamina
certifying that such events have occurred.
The Agent shall as promptly as practicable cause a copy of all
information provided under this Section 6.1 to be distributed to
each Lender.
6.2 Negative Pledge. The Borrower will not create, incur or
suffer to exist any Encumbrance on the Source of Debt Service
received or receivable by the Borrower prior to its deposit in the
Bontang IV Payment Account, or any Encumbrance on any Borrowed
Amounts, in each case resulting from any act or any failure to
perform any obligation of the Borrower under this Agreement or of
the Bontang IV Trustee under the Trust Agreement or any duty as
Bontang IV Trustee, except any Encumbrance, if any, (i) arising
pursuant to the Trust Agreement or (ii) arising pursuant to statute
or otherwise by operation of law, and not pursuant to any
agreement, which is discharged in the ordinary course of business
and which is not enforced by attachment or levy and except any
arrangement, constituting or deemed to constitute an Encumbrance,
for the payment from the Source of Debt Service of Indebtedness
permitted in accordance with Section 6.4 hereof.
6.3 No Consent to Changes. The Borrower will not terminate
or revoke the Trust Agreement or amend, modify, revise, supplement
or waive any of the provisions of (a) Article 1, 4 or 9 or Section
2.1, 2.2, 3.1, 3.2, 3.3 (other than Section 3.3(i)) or 3.7, or the
third sentence of Section 7.2 of the Trust Agreement, in each case
other than to permit the Borrower to enter into Subordinated
Indebtedness, or (b) any other provision of the Trust Agreement if
any such amendment, modification, revision, supplement or waiver
would or would be likely to affect adversely the trust created
under such Trust Agreement, the rights of the Lenders under or the
ability of the Borrower to perform its obligations under this
Agreement, the Notes or the Letter Agreement. Any consent of the
Majority Lenders necessary to permit any action otherwise
prohibited by this Section 6.3 shall not be unreasonably withheld.
The Borrower shall promptly provide to the Agent copies of any
agreement or document evidencing any revocation, amendment,
modification or revision of the Trust Agreement or any provision
thereof not requiring the consent of the Majority Lenders under
this Section 6.3.
6.4 Indebtedness. The Borrower shall not create, assume or
become liable for, directly or indirectly, any Indebtedness
charging or to be paid out of the Source of Debt Service prior to
its deposit in the Bontang IV Payment Account except for (i) all
obligations and liabilities under this Agreement, the Notes or the
Letter Agreement, (ii) any Indebtedness (a) that shall be payable
out of amounts of the Source of Debt Service only after the
Borrower shall have accumulated amounts in the Debt Service Account
and the Reserve Account during each Interest Period required to be
accumulated therein pursuant to Sections 7 and 9 hereof, (b) the
terms and conditions of which have been approved as to form and
substance by the Majority Lenders, such approval not to be
unreasonably withheld and (c) the proceeds of which shall be
applied solely in connection with the Bontang Plant (the
"Subordinated Indebtedness") and (iii) with respect to Source of
Debt Service only, obligations (other than Subordinated
Indebtedness) in respect of interest rate swap arrangements of the
Borrower entered into solely for the purpose of exchanging floating
interest rate obligations with respect to the aggregate Commitments
or the Advances outstanding under this Agreement for fixed interest
rate obligations, if such Indebtedness is only payable out of
Source of Debt Service and is pari passu in right of payment and
does not benefit from any Encumbrance other than equally and
ratably with, or subordinate to, the Indebtedness owed to the
Lenders under this Agreement, the Notes and the Letter Agreement
and if the terms and conditions of such arrangements are effected
in accordance with the procedures and ISDA documentation
customarily used in effecting such arrangements ("Pari Passu Swap
Indebtedness"); provided that the withholding of consent by the
Majority Lenders under Section 6.4(ii)(b) hereof shall be deemed
reasonable if agreement with the Majority Lenders is not reached
with respect to Subordinated Indebtedness concerning (x) amendments
to this Agreement, including without limitation amendments of the
definition of "Debt Coverage Ratio", (y) amendments to the Trust
Agreement or (z) such other changes to the terms and conditions,
including the Events of Default, of the Trust Agreement, the
Producers Agreement and this Agreement as the Majority Lenders
shall request. The Borrower shall not create, assume or become
liable for, directly or indirectly, any Indebtedness charging or to
be paid out of any Borrowed Amounts, except for Indebtedness for
which such Borrowed Amounts were borrowed.
6.5 Notice at End of Availability Period. After the end of
the Availability Period, the Agent shall deliver to the Borrower a
notice setting forth the outstanding amounts of principal and
interest as of the final Borrowing Date and a repayment schedule.
The Borrower shall either promptly confirm that it agrees with such
amounts and such schedule by signing and returning to the Agent a
copy of such notice or promptly deliver to the Agent a notice
indicating that it does not agree and specifying the reasons
therefor. The delivery or lack of delivery of such notice to the
Borrower shall in no way affect any of the obligations of the
Borrower pursuant to this Agreement other than those set forth in
this Section 6.5.
SECTION 7. EVENTS OF DEFAULT
If any one or more of the following events ("Events of Default")
shall occur and be continuing:
(a) (i) failure to make any payment of the principal of
any of the Notes within two days following, or interest on any of
the Notes within three days following, the date when due and
payable in accordance with the terms hereof and thereof (provided
that for the purposes of this clause (i) a deferral of payment of
an amount of principal pursuant to Section 2.10(b) hereof shall not
be deemed to be a failure to make such payment), or (ii) failure to
pay any other amounts payable under this Agreement, any of the
Notes or the Letter Agreement within seven days following the date
when due in accordance with the terms of this Agreement, including
Section 3.9 hereof; or
(b) any representation or warranty made or deemed made
by or on behalf of the Borrower in Section 4 or Section 5.3 of this
Agreement or in any certificate delivered to the Agent or the
Lenders pursuant hereto shall prove to have been incorrect or
misleading in any material respect as of the date when made; or
(c) failure by the Borrower to perform or observe any
term, covenant or agreement contained in Section 6.2, 6.3 or 6.4
hereof; or
(d) failure by the Borrower to perform its obligations
under Section 6.1(d) hereof for seven days after written notice of
such failure shall have been given to the Borrower by the Agent at
the request of any Lender; or
(e) any failure by the Borrower to perform or observe
any term, covenant or agreement contained in this Agreement (other
than those referred to in clauses (a), (b), (c) or (d) of this
Section 7), or any failure by the Borrower or any Producer to
perform or observe any term, covenant or agreement contained in the
Trust Agreement, for 30 days after written notice of such failure
shall have been given to the Borrower by the Agent at the request
of any Lender; or
(f) a Default as defined in the Producers Agreement
shall have occurred thereunder;
then the Agent shall, upon the written request of the Majority
Lenders, by notice of default given to the Borrower, (i) declare
the Commitment of each Lender to be forthwith terminated and/or
(ii) declare all the Notes outstanding hereunder to be forthwith
due and payable, whereupon the then outstanding principal amount of
such Notes, together with accrued interest thereon and any and all
other amounts due under this Agreement and the Letter Agreement,
shall forthwith become due and payable without diligence,
presentment, demand, protest, notice of dishonor, or other notice
of any kind, all of which are hereby expressly waived by the
Borrower.
Should the principal amount of the Notes be declared or become
due and payable in the foregoing manner, the entire amount of the
Source of Debt Service received by the Borrower thereafter shall to
the extent provided by the Trust Agreement, as and when received by
the Borrower, be accumulated and paid to the Agent for application
to the amounts owing by the Borrower under this Agreement, the
Notes which were declared to be or which became due and payable and
the Letter Agreement until all principal of and interest on such
Notes and all other amounts then due and payable under this
Agreement, the relevant Notes and the Letter Agreement shall have
been paid in full.
SECTION 8. AGENT
The Lenders, the Agent, and the Coordinators agree among
themselves and, where the context of Section 8.9 or 8.10 hereof so
requires, with the Borrower as follows:
8.1 Appointment and Authority.
(a) Each Lender, and each subsequent holder of any Note
by its acceptance thereof, irrevocably authorizes the Agent to
receive all payments of principal, interest and other amounts due
to such Lender or such holder under this Agreement and the Notes
and to take all other actions on behalf of such Lender or such
holder and to exercise such powers hereunder as are specifically
delegated to such Agent by the terms hereof, together with all
other such powers as shall be reasonably incidental thereto.
(b) The relationship between each of the Lenders and the
Agent is and shall be that of agent and principal only, and nothing
herein shall be construed to constitute the Agent as trustee for
any holder of a Note or of a participation therein nor to impose on
the Agent duties and obligations other than those expressly
provided for herein nor to confer upon the Agent any relationship
of agency or trust with the Borrower. Neither the Agent, nor any
of its directors, officers, employees or agents shall be liable to
any of the Lenders for any action taken or omitted to be taken by
it or them hereunder or in connection herewith, whether as a result
of any conflicts affecting or involving the Agent and the
Coordinators resulting from their responsibilities relating to this
Agreement, the Commitments, the Advances or otherwise, except for
its own or their own gross negligence or willful misconduct. Each
of the Lenders, and each subsequent holder of any Note by its
acceptance thereof, agrees (which agreement shall survive payment
of the Notes) to indemnify the Agent (to the extent not reimbursed
by the Borrower) and the Coordinators, in amounts which are pro
rata to the respective Commitments of such Lenders and, in the case
of a subsequent holder of any Notes, of the Lender from whom such
holder acquired (directly or indirectly) such Notes, from and
against any and all losses, claims, damages, liabilities and
expenses of any kind (including failure to receive any payment
specified in the Agency Fee Letter Agreement referred to in Section
2.8(b) hereof) which may be imposed on, incurred by or asserted
against the Agent or the Coordinators (in their capacities as such)
in any way related to or arising out of this Agreement or any
Advances or any action taken or omitted by such Agent or the
Coordinators under this Agreement whether as a result of any
conflicts affecting or involving the Agent and the Coordinators
resulting from their responsibilities relating to this Agreement,
the Commitments, the Advances or otherwise, except (i) normal
administrative expenses incidental to the performance of their
duties as such Agent and Coordinators hereunder and (ii) any
losses, claims, damages, liabilities or expenses resulting from its
or their gross negligence or willful misconduct.
8.2 Agent May Rely on Documents. The Agent shall be entitled
to rely on any communication, instrument or document reasonably
believed by it to be genuine and correct and to have been signed or
sent by the proper Person or Persons, and with respect to all
accounting, technical, legal and other matters shall be entitled to
rely on the advice of accounting, technical, legal and other
professional advisors selected by it from time to time concerning
all matters relating to this Agreement, the Notes and its duties
hereunder and thereunder, and shall not be liable to any of the
Lenders for the consequences of such reliance.
8.3 No Amendment to Duties of Agent Without Consent. The
Agent shall not be bound by any waiver, amendment, supplement or
modification of this Agreement which affects its duties under this
Agreement unless it shall have given its prior written consent, as
Agent, thereto.
8.4 Responsibilities of Agent and Coordinators. The Agent
may treat the payee of any Note as the holder thereof until written
notice of the transfer thereof shall have been received by it.
Neither the Agent nor either of the Coordinators makes any warranty
or representation to any Lender, nor shall any of them be
responsible for any recitals, statements, representations or
warranties herein or in any document prepared by or given by the
Borrower or any other Person to the Lenders in connection herewith
(or for the accuracy or completeness of any such document) or for
the execution, effectiveness, genuineness, validity or
enforceability of this Agreement or the Notes or any other
document, agreement or instrument delivered in connection herewith
or related hereto, or be liable for failing to make any inquiry
concerning the performance or observance of any of the terms,
provisions or conditions of this Agreement or any Note or any other
document, agreement or instrument delivered in connection herewith
or related hereto. The Agent and each Coordinator shall be enti-
tled to retain for its own use any amounts paid to it in its
capacity as such. The Agent shall not be deemed to have known of
the occurrence of an Event of Default or other event the occurrence
or non-occurrence of which with the giving of notice or lapse of
time or both would become an Event of Default or comparable event
under any other agreement unless the Agent has received written
notice from a Lender or the Borrower specifying such Event of
Default or other event and stating that such notice is a "Notice of
Default" or from any other relevant Person so specifying. If (i)
the Agent receives a notification pursuant to the preceding
sentence, or (ii) the Borrower fails to pay in accordance with the
terms hereof to the Agent when due the principal of or interest on
any Note or any commitment fee payable to any Lender hereunder, the
Agent shall as promptly as practicable give written notice thereof
to the Lenders. The Agent may decline to take any action except
upon the written direction of the Majority Lenders and the Agent
may obtain a ratification by such Majority Lenders of any action
taken by it under this Agreement or any other document, agreement
or instrument delivered in connection herewith or related hereto.
The Agent shall have no liability to the Coordinators or Lenders
for any action taken by it upon the direction of the Majority
Lenders or if ratified by the Majority Lenders, nor shall the Agent
have any such liability for any failure to act unless such Agent
has been instructed to act by the Majority Lenders. The action of
the Majority Lenders shall in each case bind all of the Lenders
hereunder. The Agent shall not be required to take any action
which exposes such Agent to personal liability (unless indemnified
to its satisfaction for any and all consequences of such action) or
which is contrary to this Agreement or any Legal Requirement.
8.5 Funding Costs of Agent. If at any time the Agent makes
available to a Lender amounts due from the Borrower hereunder which
the Borrower has failed to make available to the Agent, then the
Lender shall on first demand forthwith refund such amounts to the
Agent together with interest thereon at the rate offered by the
Agent for overnight Dollar deposits in the New York Federal Funds
market.
8.6 Agent in Individual Capacity. The Agent and its
affiliates in their capacities as Lenders shall have the same
rights and powers hereunder as any Lender and may exercise such
rights and powers as though the Agent were not the Agent. The
Agent and its affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with the
Borrower, any of the Borrower's affiliates, the Producers and any
of the Producers' affiliates, as if such Agent were not acting in
such capacity hereunder.
8.7 Credit Decision. Each Lender represents, warrants and
acknowledges that it has, independently and without reliance upon
the Agent, the Coordinators or any other Lender, and based on such
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and
without reliance upon the Agent, the Coordinators or any other
Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking any action under this Agreement.
8.8 Coordinators. Nothing in this Agreement shall impose on
the Coordinators, in their capacity as such, any duties or
obligations whatsoever.
8.9 Change of Administrative Office of Agent. The Agent may
at any time or from time to time by written notice to the Borrower
and to each Lender designate a different office from which its
duties as Agent will thereafter be performed; provided that no such
change to a location outside of the City of New York shall be made
without the Borrower's consent, which consent shall not be
unreasonably withheld.
8.10 Successor Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving written notice thereof to the Lenders
and to the Borrower. The Agent may be removed at any time with or
without cause by the Majority Lenders. Upon any such resignation
or removal, such Majority Lenders shall have the right to appoint
such successor Agent. If no successor Agent shall have been so
appointed by such Majority Lenders and shall have accepted such
appointment within 30 days after any such retiring Agent's giving
of notice of resignation, then such retiring Agent may appoint such
successor Agent. No successor Agent shall be appointed without the
consent of the Borrower, which consent shall not be unreasonably
withheld or delayed. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of such retiring Agent, and such retiring
Agent shall be discharged from its duties and obligations here-
under. After any such retiring Agent's resignation hereunder as
Agent, the provisions of this Section 8 shall continue in effect
for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as the Agent hereunder.
SECTION 9. SOURCE OF DEBT SERVICE; RECOURSE
9.1 Accumulation for Debt Service. Pursuant to Sections 3.2
and 3.3 of the Trust Agreement and except as therein stated, the
Borrower shall pay into the Debt Service Account the entire amount
of all Borrowed Amounts immediately upon receipt thereof, and,
starting with the commencement of each Quarterly Period, the
Borrower shall pay into the Debt Service Account the entire amount
of each payment of the Source of Debt Service, as and when actually
received by the Borrower, until the aggregate amount accumulated in
the Debt Service Account shall be sufficient to pay the principal
of and interest due on all of the Notes, as well as all other
amounts due and payable under this Agreement, the Notes and the
Letter Agreement, in each case during such Quarterly Period;
provided that for any six-month Interest Period, the amount of the
Source of Debt Service paid over to and accumulated in the Debt
Service Account for principal and interest due during such Interest
Period shall be in accordance with Sections 3.2 and 3.3 of the
Trust Agreement.
9.2 Accumulation in Regular Reserve Account.
(a) Pursuant to Sections 3.2 and 3.3 of the Trust
Agreement, during each Quarterly Period, after all amounts of
Source of Debt Service required to be paid into the Debt Service
Account pursuant to Section 9.1 hereof with respect to such
Quarterly Period have been so paid, the Borrower shall pay into the
Regular Reserve Account the entire remaining amount of each payment
of the Source of Debt Service, as and when actually received by the
Borrower, until the aggregate amount accumulated in such Regular
Reserve Account shall equal 100% of the sum of the principal amount
of Advances (including any Deferred Portion) scheduled for payment
at the end of the two Quarterly Periods next succeeding such
Quarterly Period plus the amount of interest to accrue on the
principal amount of Advances (including any Deferred Portion)
scheduled to be outstanding during such next two Quarterly Periods
plus the amount of other payments reasonably anticipated to be made
under this Agreement, the Notes and the Letter Agreement during
such next two Quarterly Periods (the amount so calculated in
respect of each of such two Quarterly Periods being referred to for
convenience as "Quarterly Debt Service"). For purposes of
determining such amounts of Quarterly Debt Service, the interest
rate applicable to the Advances (including any Deferred Portion
thereof) scheduled to be outstanding during each of such two
succeeding Quarterly Periods shall be or be deemed to be the
interest rate, if any, then in effect in respect of principal to be
outstanding during the next succeeding Quarterly Period and, if no
such rate shall then be in effect, shall be deemed to be the
interest rate in effect for the then current Quarterly Period.
(b) Notwithstanding the foregoing, if there is any
Source of Debt Service during the Availability Period, the Borrower
shall pay the full amount thereof into the Regular Reserve Account
pursuant to Section 3.2 of the Trust Agreement so long as and to
the extent that the amount therein is less than the aggregate of
the amount of interest on the Advances payable at the end of the
then current Quarterly Period and 100% of the amount of Quarterly
Debt Service reasonably anticipated (in the manner prescribed in
clause (a) of this Section 9.2) to be due on the first two Maturity
Dates.
9.3 Debt Coverage Reserve Account. Pursuant to Section 3.2
of the Trust Agreement, if at the commencement of any Quarterly
Period at the end of which a Maturity Date occurs the Debt Coverage
Ratio is below 1.3, then during such Quarterly Period, after all
amounts of Source of Debt Service required to be paid into the Debt
Service Account and the Regular Reserve Account pursuant to
Sections 9.1 and 9.2 hereof with respect to such Quarterly Period
have been so paid, the Borrower shall pay into the Debt Coverage
Reserve Account the entire remaining amount of each payment of the
Source of Debt Service, as and when actually received by the
Borrower, and on the Maturity Date occurring at the end of such
Quarterly Period shall use the Source of Debt Service so
accumulated in the Debt Coverage Reserve Account to prepay the
Notes on a pro rata basis (based on outstanding principal amount),
with such prepayment to be applied to the installments of principal
due thereunder in the inverse order of maturity, provided that for
purposes of further calculations of the Debt Coverage Ratio any
such prepayment shall be deemed to have been applied to such
installments of principal pro rata so that the Final Maturity Date
is not thereby changed. The procedure set forth in this Section
9.3 shall continue in effect in each subsequent Quarterly Period
until the Debt Coverage Ratio, calculated at the commencement of
any such Quarterly Period, equals or exceeds 1.3.
9.4 Payments Made from Debt Service Account and Reserve
Account. Except for any personal liability of the Borrower arising
as specifically provided in this Agreement and except for any
prepayments of the Notes pursuant to Section 9.3 hereof, all
payments to be made by the Borrower under this Agreement, the Notes
and the Letter Agreement, including in each case, without
limitation, payments due on the Final Maturity Date, shall be made
only from the Debt Service Account as the same is defined in, and
as at any applicable time the same shall be funded under, Sections
3.2 and 3.3 of the Trust Agreement; provided that if amounts held
in the Debt Service Account are insufficient to pay all such
amounts when due, any amounts then held (i) first, in the Regular
Reserve Account and (ii) second, in the Debt Coverage Reserve
Account shall be applied to make such payments to the extent
provided in Section 3.3 of the Trust Agreement. Except in
accordance with the preceding sentence with respect to any personal
liability of the Borrower, the Borrower shall only be obligated to
make payments under this Agreement, the Notes and the Letter
Agreement, including in each case, without limitation, payments due
on the Final Maturity Date, out of amounts of the Source of Debt
Service and Borrowed Amounts received by it. The Borrower agrees
that, as long as moneys are held in such Debt Service Account and
such subaccounts of the Reserve Account, the Lenders, to the extent
necessary to make payments in accordance with the terms of the
Trust Agreement of principal, interest and other amounts due under
this Agreement, the Notes and the Letter Agreement, are among those
having a right as provided under Section 2.2 of the Trust Agreement
to receive disbursements thereunder.
9.5 No Recourse. In furtherance of Sections 9.1 to 9.4
hereof, each of the Agent, the Coordinators, the Lenders and each
holder of a Note, by its acceptance thereof, agrees that, except as
provided in Sections 9.3 and 9.4, it will look solely to the Source
of Debt Service and Borrowed Amounts to the extent provided in
Sections 9.3 and 9.4 hereof for all payments to be made by the
Borrower under this Agreement, the Notes and the Letter Agreement,
as provided therein or herein, including in each case, without
limitation, payments due on the Final Maturity Date, and that no
recourse shall be had for the payment of the principal of or
interest on the Notes or the payment of any other amounts due under
this Agreement or the Letter Agreement, or shall be had for any
claim based on any provision hereof or thereof, against Continental
Bank International (or any entity acting as successor trustee under
the Trust Agreement) in its individual capacity, or against any
past, present or future stockholder, officer, director, employee or
agent of Continental Bank International (or any entity so acting),
or against the grantors, settlors or beneficiaries of any trust
under the Trust Agreement, either directly or through the Borrower
or any successor of any thereof, under any constitution, statute or
rule of law or by the enforcement of any assessment, or otherwise,
and neither Continental Bank International (or any such entity
acting as such successor trustee) nor any such other Person shall
have any personal obligation, liability or duty whatsoever to the
Agent, the Coordinators or the Lenders or any holders of the Notes
or anyone else for or with respect to any such payment or for the
performance of or compliance with any covenant or agreement
contained in any of said documents or for the truth, accuracy or
completeness of any statement or representation made in any such
document, except only in the case of Continental Bank International
(or any such entity acting as successor trustee) for any material
breach of a representation or warranty expressly made by it under
Section 4 or Section 5.3 hereof in its individual capacity and such
liability as may arise under this Agreement for gross negligence or
willful misconduct in acting hereunder. In such connection the
Borrower (a) shall be entitled to act upon any notice, certificate,
request, direction, waiver, receipt or other document which it in
good faith believes to be genuine and it shall be entitled to rely
upon the due execution, validity and effectiveness of, and the
truth and acceptability of any provisions contained in, any of the
foregoing so received, (b) may consult with, and obtain advice from
qualified accounting and legal advisers in connection with the
performance of its obligations, and it shall incur no liability and
shall be fully protected in acting in good faith in accordance with
the opinion and advice of such advisers, and (c) shall have no
duties other than those specifically set forth or provided for
herein nor any obligation to familiarize itself with nor any
responsibility with respect to any other agreement relating to the
transactions contemplated by this Agreement to which it is not a
party.
9.6 Not to Limit Remedies. Nothing contained in this Section
9 shall be construed to limit the exercise and enforcement, in
accordance with the terms of this Agreement, the Notes or the
Letter Agreement, of the rights and remedies of the Agent, the
Coordinators or the Lenders or any holders of the Notes against the
Borrower hereunder to the extent of the Source of Debt Service and
Borrowed Amounts as provided herein.
SECTION 10. MISCELLANEOUS
10.1 Notices. Any notice required or permitted to be
given hereunder shall be in writing and shall be (a) personally
delivered, (b) transmitted by postage prepaid registered mail,
return receipt requested, (c) transmitted by telex (with postage
prepaid mail confirmation) or (d) sent by facsimile transmission to
the parties as follows (as elected by the party giving such
notice):
To the Borrower: Continental Bank International, as Trustee
under the Bontang IV Trust
Agreement dated as of August 26, 1991
520 Madison Avenue
New York, New York 10022
Attention: LNG/LPG Division
Telex: RCA 232304/ITT 420177
Answerback: CBI UR/ CBI UI
Facsimile: (212) 605-1014/319-0676
To the Agent: The Chase Manhattan Bank, N.A.
Two Chase Manhattan Plaza - 4th Floor
New York, New York 10081
Attention: Margaret A. Hyland, A.T.
Telex: (212) 672-0860 NYACHASE
Facsimile: (212) 552-9544
To the Lenders: As provided on the signature pages hereof
Any notice relating to a Borrowing or a prepayment shall only be
effective on receipt of a legible copy thereof. Except as
otherwise specified in this Agreement, all notices and other
communications shall be deemed to have been duly given on (i) the
date of delivery if delivered personally, (ii) five days following
posting if transmitted by mail, (iii) the date of transmission with
confirmed answerback if transmitted by telex or (iv) the date of
receipt of a legible copy thereof if sent by facsimile
transmission, whichever shall first occur. Any party may change
its address for purposes hereof by notice to the other parties.
10.2 No Waiver; Remedies Cumulative. No failure to
exercise and no delay in exercising, on the part of the Agent, the
Lenders or the holders of any Note, any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. Subject always to the
provisions of Section 9 hereof, the rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law. The provisions of this Agreement shall
inure to the benefit of any subsequent holder of the Notes.
10.3 Use of English Language. All documents or notices
to be delivered pursuant to or in connection with this Agreement
shall be in the English language. English shall be the official
language for construction and interpretation of this Agreement, the
Notes, the Letter Agreement and all agreements, notices, documents
and instruments. If the original of any such document or notice is
not in the English language, an English translation thereof shall
be delivered.
10.4 Assignment and Transfer; Successors and Assigns;
Participations.
(a) This Agreement shall be binding upon and inure to
the benefit of the Borrower, the Coordinators, the Lenders, the
Agent and their respective successors and permitted assigns and
transferees. The Borrower may not assign any of its rights or
delegate any of its obligations hereunder without the written
consent of all of the Lenders. Any Lender may at any time sell,
assign, transfer, negotiate, or otherwise dispose of, in whole or
in part, with the prior written consent (such consent not to be
unreasonably withheld) of the Borrower, its rights and obligations
under this Agreement or the Notes; provided that such consent by
the Borrower shall not be required for any proposed sale,
assignment, transfer, negotiation or other disposition by a Lender
(i) to another financial institution (1) at least 75% of the voting
shares of which are held directly or indirectly by the Lender, or
(2) holding directly or indirectly at least 75% of the voting
shares of the Lender or (3) at least 75% of the voting shares of
which are held directly or indirectly by a corporation which holds
directly or indirectly at least 75% of the voting shares of the
Lender (any of the foregoing described transferees, a "Section
10.4(a) Affiliate") or (ii) at any time pursuant to the Risk
Participation Agreement to the Risk Participant or any of the Risk
Co-Participants or any Person affiliated with any of them. The
exercise of such right by any Lender is, however, subject to the
conditions that the transferee shall (i) not have any right at the
time of transfer, or shall have effectively waived any right
existing in the transferee at the time of transfer, pursuant to
Section 3.3 hereof to claim from the Borrower tax indemnification
and pursuant to Section 3.4(b) hereof to claim from the Borrower
any additional amounts, in either case above and beyond that or
those which could have been claimed by the transferor at the time
of transfer, (ii) not have any right at the time of transfer
pursuant to Section 3.4(a) hereof not possessed by the transferor
at the time of transfer and (iii) in the case of any transfer to a
Section 10.4(b) Affiliate or to an affiliate of the Risk
Participant or of any Risk CoParticipant, not have designated a
Lending Office in any jurisdiction with respect to which the
Borrower is at the time of transfer prohibited by applicable state
or federal laws of the United States from doing business.
(b) In furtherance of the foregoing clause (a), except
in the case of a transfer stated in the relevant Transfer
Certificate pursuant to clause (c) of this Section 10.4 to be
pursuant to the Risk Participation Agreement, any Lender wishing to
transfer any of its rights and obligations under this Agreement or
the Notes to any Person shall effect such transfer in the following
manner:
(i) The Lender and the Person or Persons to which
the Lender wishes to transfer any of such rights and obligations
(the "Transferee" or "Transferees") shall duly complete and execute
a transfer certificate in the form of Exhibit C-2 hereto (the
"Transfer Certificate").
(ii) Unless the intended Transferee is stated in the
relevant Transfer Certificate to be a Section 10.4(a) Affiliate,
the Lender shall obtain the consent of the Borrower to the transfer
by having the Borrower evidence its consent in the space provided
therefor in the Transfer Certificate.
(iii) The Lender then and only then shall
deliver the Transfer Certificate to the Agent together with (x) a
photocopy of the Transfer Certificate as executed by the Lender,
the Transferee and the Borrower, (y) the Note or Notes in respect
of which the transfer is being made, and (z) payment of the
transfer fee of $1,000, upon receipt of which the Agent shall
acknowledge receipt of such Transfer Certificate in the space
provided therefor in the photocopy and deliver the same to the
Transferee.
(iv) Each transfer shall become effective on the
later of (x) the date specified for such transfer in the related
Transfer Certificate and (y) the fifth Business Day after
acknowledgement of receipt of the related Transfer Certificate by
the Agent.
(v) Upon a transfer becoming effective in the
foregoing manner, the Transferee shall assume the obligations and
acquire the rights which are the subject of such transfer with the
same effect as if such Transferee had been an original party hereto
as a Lender with the rights and obligations acquired and assumed by
such Transferee as the result of such transfer.
(c) Any Lender wishing to transfer any of its rights and
obligations under this Agreement or the Notes to a Risk Participant
or Risk Co-Participant pursuant to the Risk Participation Agreement
shall effect such transfer in the following manner:
(i) The Lender, the Risk Participant and each Risk
Co-Participant participating in such transfer (or any affiliate of
the Risk Participant or of any of such Risk Co-Participants so
participating) shall duly complete and execute a Transfer
Certificate which shall omit the Borrower's consent form, which
shall specify the percentage interest of the Risk Participant and
of each such Risk Co-Participant (or each affiliate) in the
transfer to be evidenced thereby (each of the Risk Participant and
each Co-Participant (and each such affiliate) being a
"Transferee"), and which shall state that it is being completed and
executed and that the transfer is being made pursuant to the Risk
Participation Agreement.
(ii) The Lender then shall deliver the Transfer
Certificate to the Agent with (x) photocopies of the Transfer
Certificate, as executed by the Lender and each Transferee named
therein, in a number sufficient for each such Transferee and (y)
the Note or Notes in respect of which the transfer is being made,
upon receipt of which the Agent shall acknowledge receipt of such
Transfer Certificate in the space provided therefor in each
photocopy so provided and deliver the same to the Risk Participant
for further delivery to such Transferees.
(iii) Each transfer shall become effective as of
the date specified in the related Transfer Certificate.
(iv) Upon a transfer becoming effective in the
foregoing manner, each Transferee shall assume the obligations and
acquire the rights which are the subject of such transfer with the
same effect as if each such Transferee had been an original party
hereto as a Lender with the rights and obligations acquired and
assumed by each of such Transferees as the result of such transfer.
(d) The Agent shall as promptly as practicable deliver
to the Borrower a copy of each Transfer Certificate the receipt of
which is acknowledged pursuant to this Section 10.4 together with
the Note or Notes received with respect thereto, whereupon:
(i) in the case of any transfer stated in the
relevant Transfer Certificate to be other than pursuant to the Risk
Participation Agreement, the Borrower shall execute and deliver
into the custody of the Agent one or more new Notes (of the same
category as the Notes subject to transfer and dated the date to
which interest has been paid on the Advances evidenced thereby) (x)
in the principal amounts being retained, if any, and/or transferred
by the transferor and the Transferee or Transferees, respectively,
(y) payable to the order of such transferor and/or Transferee or
Transferees, respectively, and (z) in an aggregate principal amount
equal to that evidenced by the Note or Notes which are the subject
of such transfer; and
(ii) in the case of any transfer stated in the
relevant Transfer Certificate to be pursuant to the Risk
Participation Agreement, the Borrower shall execute and deliver
into the custody of the Agent a new Note (to be designated as an A
Note and dated the date to which interest has been paid on the
Advances evidenced by the Note or Notes subject to such transfer)
for each Transferee named in the relevant Transfer Certificate and
each other Transfer Certificate then being delivered pursuant to
the Risk Participation Agreement (x) in the case of each Transferee
in a principal amount equal to the aggregate principal amount then
being concurrently transferred by all Lenders to such Transferee,
(y) payable to the order of each Transferee, and (z) in an
aggregate principal amount for all such Note or Notes equal to that
evidenced by all Notes being transferred by all Lenders pursuant to
the Risk Participation Agreement.
(e) The Agent shall as promptly as practicable deliver
to the relevant Transferees all new Notes delivered into its
custody pursuant to Section 10.4(d).
(f) The Agent and the Borrower may treat each Lender as
the holder of the Note drawn to its order and delivered to such
Lender, whether pursuant to Section 2.9 or this Section 10.4,
except in those circumstances where a transfer has become effective
pursuant to this Section 10.4 but the new Note or Notes to be
issued in connection with such transfer have yet to be issued, in
which case the transferor and Transferee or Transferees parties to
such transfer shall be treated as the holder or holders of the
existing Note or Notes related to such transfer to the extent of
their respective interests as set forth in the relevant Transfer
Certificate.
(g) All agreements, representations and warranties made
herein shall survive the making of any such transfer hereunder by
any Lender.
(h) Notwithstanding anything otherwise contained in this
Section 10.4, each Lender may grant participations which do not
create or purport to create binding obligations of the Borrower, in
whole or in part, in its rights under this Agreement and the Notes
without any restriction and without notice to the Borrower.
(i) The parties named on the signature pages hereof
under the captions "Arrangers," "Co-Arrangers," "Lead Managers,"
"Managers," "Co-Managers" and "Co-Agents" are intended to have such
benefits, and in accepting any such benefits also to accept such
obligations, as may be expressly provided for such parties herein
to the same extent as if such parties had actually executed and
delivered this Agreement.
10.5 Amendments. Any provision of this Agreement or the
Notes may be amended or waived if, and only if, such amendment or
waiver shall be in writing and signed (including the form of
signatures on any telex, cable or facsimile) by the Majority
Lenders and, if the Agent's rights or duties as agent are affected,
the Agent; provided that any such amendment must also be signed by
the Borrower; and provided further that no such amendment or waiver
shall, unless signed by each Lender, do any of the following: (a)
increase or decrease the Commitment of any Lender or subject any
Lender to any additional obligation hereunder; (b) reduce the
amount or postpone the date of any payment of principal, interest
or other amount hereunder with respect to any Advance; (c) reduce
the percentage of the amount of the Commitments or the Advances
specified in the definition of "Majority Lenders" or otherwise
required to take any action hereunder; (d) modify the requirement
that the consent of each Lender is required with respect to devi-
ations from the requirements in clause (i), clause (j), clause (1)
or clause (m) of Section 5.1 hereof or clause (ii)(A), clause
(iii), clause (iv) or clause (vi) of Section 5.2 hereof; or
(e) amend or waive any provision of this Section 10.5. Any such
amendment or waiver shall be signed by the Agent on behalf of the
relevant Lenders if the Agent has been so authorized in writing or
by telex, cable or facsimile transmission by the Majority Lenders
or all of the Lenders, as the case may be. Any amendment or waiver
signed by the Agent in accordance with the preceding sentence shall
be binding upon the Lenders and any holder of a Note. Any action
that the Agent may take on behalf of the Majority Lenders under
this Agreement and that the Agent in fact so takes shall be binding
on all of the Lenders.
10.6 Expenses; Indemnification.
(a) Whether or not the transactions contemplated by this
Agreement shall be consummated, the Borrower agrees to pay, or
reimburse the Agent, on behalf of the Lenders, for, all reasonable
disbursements, charges and fees of the Lenders' special New York
counsel for the period commencing on March 21, 1991 in connection
with the preparation, negotiation and signing of, and the initial
disbursement under, this Agreement. Upon the making of the initial
Advance under this Agreement, the Borrower shall pay such amounts
representing fees on the date of such Advance or, if such Advance
has not been made on or prior to the thirtieth day following the
Effective Date, on such thirtieth day. The Borrower shall pay such
amounts representing disbursements and charges on the date of the
Borrowing at least fifteen days next following receipt by the
Borrower of a written statement setting forth such amounts.
(b) The Borrower agrees (i) to pay, or reimburse the
Agent for all reasonable out-of-pocket expenses, including, but not
limited to, travel expenses, legal fees, disbursements and other
charges of Lenders' counsel incurred by the Agent in connection
with any amendment or supplement to, or modification or waiver of,
this Agreement, the Trust Agreement, the Producers Agreement or
other related documents after this Agreement has been fully
executed and (ii) whether or not amounts due under this Agreement,
any of the Notes or the Letter Agreement are accelerated, upon the
occurrence of an Event of Default or an event the occurrence or
non-occurrence of which would, with notice or lapse of time or both
constitute an Event of Default (but only if such event later
becomes an Event of Default), to pay, or reimburse the Agent for,
all reasonable expenses of the Agent and each holder of any Notes
arising in connection with such Event of Default or the enforcement
of this Agreement, such Notes, the Letter Agreement or the Produc-
ers Agreement, including but not limited to the fees and expenses
of counsel employed by the Agent or such holder and any expenses of
the Agent incurred in connection with any assignment of any rights
of any Lender under this Agreement, the Notes or the Producers
Agreement to the Risk Participant or the Risk Co-Participants or
their respective affiliates as set forth in Section 10.4 hereof.
(c) The Borrower hereby further agrees to pay the fees
and expenses specified in and otherwise in accordance with the
letter agreement between the Borrower and the Agent of even date
herewith (the "Expenses Letter Agreement").
10.7 Sharing of Set-Off and Other Payments. In the event
that any Lender shall have received an amount in excess of its
ratable share of payments hereunder or under the Notes through the
exercise of any lien, set-off or similar right or any voluntary
payment by the Borrower, such Lender shall promptly (and in any
event within 15 days) purchase for cash without recourse that
portion of each other Lender's Advances as will result in each
Lender receiving its ratable share of the amount of such lien,
set-off or similar right, or voluntary payment; provided that to
the extent that such excess amount or any portion thereof is
subsequently recovered from the purchasing Lender, its purchases
from the other Lenders shall be rescinded and the price repaid
without interest; and provided further that if, after acceleration
of the maturity of the relevant Notes pursuant to Section 7 hereof,
any Lender shall commence an action or proceeding in any court to
enforce the relevant Notes held by such Lender and as a result
thereof, or in connection therewith, shall receive an excess
payment on such Notes, such Lender shall not be required to share
any portion of such excess payment with a Lender which has received
sufficient notice to enable it to and which has the legal right to,
but does not, join such action or proceeding or commence and
diligently prosecute a separate action or proceeding to enforce its
Notes in another court. Nothing herein contained shall in any way
affect (a) expenses pursuant to Section 2.7(b) hereof, prepayments
pursuant to Section 3.4 hereof and interest payments calculated in
accordance with the provisions of the fifth sentence of Section 2.6
hereof and (b) the right of any Lender to obtain payment of
indebtedness of the Borrower other than Indebtedness under this
Agreement, the Notes and the Letter Agreement.
10.8 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts together shall
constitute one and the same instrument. Complete sets of
counterparts shall be lodged with the Agent and the Borrower.
10.9 Table of Contents and Section Headings. The table
of contents and the section headings in this Agreement are inserted
for convenience of reference only and shall be ignored in
construing this Agreement.
10.10 Governing Law. This Agreement and the Notes shall
be governed by and construed in accordance with the law of the
State of New York, United States of America, applicable to
agreements made and to be performed entirely within such State.
10.11 Severability. If any one or more of the provisions
contained in this Agreement or any document executed in connection
herewith shall be invalid, illegal or unenforceable in any respect
under any applicable law, the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way
be affected or impaired.
10.12 Term of Agreement. The term of this Agreement shall
commence on the Effective Date and shall end on the termination of
all of the Lenders' Commitments or payment in full of all of the
Notes and all other amounts payable under this Agreement and the
Letter Agreement, whichever is later. The agreements of the
Borrower to pay expenses and indemnities pursuant to Sections 3 and
10.6 of this Agreement shall survive the repayment of the Advances
and the cancellation of all of the Notes until all amounts payable
thereunder are paid in full.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective duly authorized
signatories as of the Effective Date.
The Borrower
CONTINENTAL BANK INTERNATIONAL, as
Trustee aforesaid
By_____________/s/_______________
Name:
Title:
Coordinators
CHASE MANHATTAN ASIA LIMITED
By_____________/s/____________
Name:
Title:
THE MITSUBISHI BANK, LIMITED
By_____________/s/_______________
Name:
Title:
Arrangers
THE DAI-ICHI KANGYO BANK, LTD.
SINGAPORE BRANCH
THE FUJI BANK, LIMITED
MITSUI TAIYO KOBE ASIA LIMITED
THE SANWA BANK, LIMITED
UNION BANK OF SWITZERLAND
Co-Arrangers
CREDIT LYONNAIS
BANQUE NATIONALE DE PARIS
THE MITSUBISHI TRUST AND BANKING
CORPORATION
NMB POSTBANK GROEP N.V.
THE SUMITOMO BANK, LIMITED
SINGAPORE BRANCH
SWISS BANK CORPORATION
BANQUE PARIBAS
SINGAPORE BRANCH
THE DAIWA BANK LIMITED
DEUTSCHE BANK (ASIA PACIFIC)
LTD.
DRESDNER (SOUTH EAST ASIA)
LIMITED
SOCIETE GENERALE ASIA LIMITED
THE TOKAI BANK, LIMITED
Lead Manager
THE NIPPON CREDIT BANK, LTD.
Managers
BBL FINANCE IRELAND
THE TOYO TRUST AND BANKING
COMPANY, LIMITED
BANCO ESPANOL DE CREDITO
(BANESTO)
GENERALE BANK
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
Co-Managers
CREDIT NATIONAL
THE KIYO BANK, LTD.
Co-Agents
THE CHASE MANHATTAN BANK, N.A.
THE MITSUBISHI BANK, LIMITED
Agent
THE CHASE MAHATTAN BANK, N.A.
By_____________/s/_______________
Name:
Title:
Commitment Lenders
$52,214,534.00 THE CHASE MANHATTAN BANK, N.A.
By_____________/s/_______________
Name:
Title:
Lending Office:
Nassau Branch
c/o Eurocurrency Operations
Division
2 Chase Manhattan Plaza, 10th Fl.
New York, NY 10081
U.S.A.
Attention: Ms. Ida L. Borroto
Telex: 62910 CMB UW
Telecopier: (1-212) 552-8917
Commitment
$52,214,534.00 THE MITSUBISHI BANK, LIMITED
By_____________/s/_______________
Name:
Title:
Lending Office:
New York Branch
Two World Financial Center
225 Liberty Street
New York, NY 10281
U.S.A.
Attention: Mr. Fuchida
Vice President Corporate Finance
Telex: 232328 MITUR or
420367 BISHIBK
Telecopier: (1-212) 667-3562
Commitment
$50,474,048.00 THE DAI-ICHI KANGYO BANK, LTD.
By_____________/s/_______________
Name:
Title:
Lending Office:
New York Branch
One World Trade Center
Suite 4911
New York, NY 10048
U.S.A.
Attention: Mr. Francisco Cruz
Planning & Operations Officer
Loan Administration Department
Telex: 232988 DKB UR
Telecopier: (1-212) 524-0579
Commitment
$50,474,048.00 THE FUJI BANK, LIMITED
By_____________/s/_______________
Name:
Title:
Lending Office:
New York Branch
Two World Financial Center
79th Floor
New York, NY 10048
U.S.A.
Attention: Mr. Kentaro Akashi
Telex: RCA 232440 FUJI UR
Telecopier: (1-212) 321-9407
Commitment
$50,474,048.00 THE MITSUI TAIYO KOBE BANK, LIMITED
By_____________/s/_______________
Name:
Title:
Lending Office:
New York Branch
277 Park Avenue
New York, NY 10172-0121
U.S.A.
Attention: Ms. Patricia L. Walsh
(A.V.P.)/Loan Support Group
Telex: RCA 232962 MTKB
Telecopier: (1-212) 888-7651
Commitment
$50,474,048.00 THE SANWA BANK, LIMITED
By_____________/s/_______________
Name:
Title:
Lending Office:
New York Branch
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
U.S.A.
Attention: Ms. Renko Hara
Vice President
Loan Administration Department
Telex: 232423 SWBUR
Telecopier: (1-212) 754-2368
Commitment
$50,474,048.00 UNION DE BANQUES SUISSES
(LUXEMBOURG) S.A.
By_____________/s/________________
Name:
Title:
By_______________________________
Name:
Title:
Lending Office:
36-38, Grand-rue
B. P. 134
L-2011 Luxembourg
Attention: Mr. Andre Clement
Telex: (0450) 1280 UBS LU
Telecopier: (352) 45-12-12-703
Commitment
$32,000,000.00 CREDIT LYONNAIS S.A.
By_____________/s/_______________
Name:
Title:
Lending Office:
1 rue des Italiens
75009 Paris
France
Attention: DFSE FPE E32 Fil. C
Mme. Gouget
Telex: 649076 F CREDC
Telecopier: (33-1) 42-95-65-68
Commitment
$25,000,000.00 BANQUE NATIONALE DE PARIS
By_____________/s/_______________
Name:
Title:
Lending Office:
Hong Kong Branch
Central Building
Queen's Road
Central
Hong Kong
Attention: Claudia Yeung, Manager
Wynnie Lam, Asst. Manager
Chinese Division
Secretariat
Telex: 73786 BNP HX
Telecopier: (852) 810-6252
Commitment
$25,000,000.00 THE MITSUBISHI TRUST AND BANKING
CORPORATION
By_____________/s/_______________
Name:
Title:
Lending Office:
New York Branch
520 Madison Avenue, 26 Fl.
New York, NY 10022
U.S.A.
Attention: Mr. Nobuo Hirai
Chief Manager/NY Branch
Japanese Corp. Finance
Telex: ITT 425078 MTABUI
Telecopier: (1-212) 755-2349
Commitment
$25,000,000.00 NMB POSTBANK GROEP N.V.
By_____________/s/_________________
Name:
Title:
By_____________/s/_______________
Name:
Title:
Lending Office:
De Amsterdamse Poort
Amersterdam Z-O
P. O. Box 1800
1000 BV Amsterdam
The Netherlands
Attention: Mr. Jan-Hein Jesse
Energy Finance HD O4.03
Telex: 11402 NMB NL
Telecopier: (31-20) 563-5369
Commitment
$25,000,000.00 THE SUMITOMO BANK, LIMITED
By_____________/s/_______________
Name:
Title:
Lending Office:
New York Branch
One World Trade Center
Suite 9651
New York, NY 10048
U.S.A.
Attention: Mr. Kota, Vice President
Loan
Administrator
Telex: 232407 SMKBUR
Telecopier: (1-212) 524-0612
Commitment
$25,000,000.00 SWISS BANK CORPORATION
By_____________/s/_______________
Name:
Title:
By_____________/s/_______________
Name:
Title:
Lending Office:
New York Branch
10 East 50th Street
New York, NY 10022
U.S.A.
Attention: Salvatore Charles
Sirna
Telex: RCA 232432 SBNY UR
Telecopier: (1-212) 574-4131
Commitment
$24,366,782.00 BANQUE PARIBAS
By______________/s/______________
Name:
Title:
Lending Office:
Singapore Branch
Hong Leong Building #39-01
16 Raffles Quay
Singapore 0104
Attention: Ms. Gigi Chen
Mr. Patrick Bader
Project Finance Dept.
Telex: RS20414 PARSIN 20414
Telecopier: (65) 224-3053
Commitment
$24,366,782.00 THE DAIWA BANK LIMITED
By______________/s/______________
Name:
Title:
Lending Office:
New York Branch
75 Rockefeller Plaza
New York, NY 10019
U.S.A.
Attention: Ms. Jean Cua
Supervisor
Loan Administration
Telex: RCA 232246 DWBK UR
ITT 422391 DAIW BK
Telecopier: (1-212) 397-9317
Commitment
$24,366,782.00 DEUTSCHE BANK AG
By_____________/s/_______________
Name:
Title:
Lending Office:
Singapore Branch
8 Shenton Way
#01-01 Treasury Building
Singapore 0106
Attention: Ms. Helen Ong
Ms. Catherine Pek
CBD/ACU
Telex: RS21189 DBA
Telecopier: (65) 225-9442
Commitment
$24,366,782.00 DRESDNER BANK AG
By________________/s/____________
Name:
Title:
Lending Office:
Singapore Branch
20 Collyer Quay #22-00
Tung Centre
Singapore 0140
Attention: Mr. Wong Mun Fatt
Assistant Manager
Credit Division
Telex: RS29366 DRESDBK
Telecopier: (65) 224-4008
Commitment
$12,183,391.00 SOCIETE GENERALE
By_____________/s/_______________
Name:
Title:
Lending Office:
Singapore Branch
105 Cecil Street
24-01 The Octagon
Singapore 0106
Attention: Ms. Nathalie Lesbre
Manager, Credit & Marketing Dept.
Ms. Delia Tan
Head of Dept., Credit
Administration Dept.
Telex: RS27213 SOGESI
Telecopier: (65) 225-2609
Commitment
$12,183,391.00 SOCIETE GENERALE
By______________/s/_________________
Name:
Title:
Lending Office:
Tokyo Branch
Hibiya Central Building
1-2-9 Nishi-Shinbashi
Minato-Ku, Tokyo 105
Japan
Attention: Mr. T. Ogino
Vice President
Ms. T. Yishida
Head of Section, Credit
Administration Dept.
Telex: 28611 GENESO J
Telecopier: (81-3) 3595-1880
Commitment
$24,366,782.00 THE TOKAI BANK, LIMITED
By______________/s/_________________
Name:
Title:
Lending Office:
New York Branch
55 East 52nd Street
Park Avenue Plaza
New York, NY 10055
U.S.A.
Attention: Ms. Toshihiko Yokoi
Vice President
Loan Administration
Telex: 422857 TOKAI
Telecopier: (1-212) 754-2171
Commitment
$20,000,000.00 THE NIPPON CREDIT BANK, LTD.
By______________/s/_________________
Name:
Title:
Lending Office:
New York Branch
245 Park Avenue, 30th Floor
New York, NY 10167
U.S.A.
Attention: Mr. Peter Fiorillo,
AVP
Loan Administration
Telex: 232496 NCBN UR
Telecopier: (1-212) 697-8034
Commitment
$15,000,000.00 BBL FINANCE IRELAND
By____________/s/___________________
Name:
Title:
Lending Office:
Harcourt Centre
Harcourt Road
Dublin
Republic of Ireland
Attention: Mr. Aidan Neill
Telex: 91309 BBLF EI
Telecopier: (353-1) 78-49-82
Commitment
$15,000,000.00 THE TOYO TRUST AND BANKING COMPANY
LIMITED
By____________/s/___________________
Name:
Title:
Lending Office:
New York Branch
437 Madison Avenue
37th Floor
New York, NY 10022
U.S.A.
Attention: Mr. Robert Tse
Vice President,
Loan Administration
Telex: 222675 TTBC
Telecopier: (1-212) 371-4963
Commitment
$10,000,000.00 BANCO ESPANOL DE CREDITO
By____________/s/___________________
Name:
Title:
Lending Office:
New York Branch
630 Fifth Avenue
New York, NY 10111
U.S.A.
Attention: Mr. Jose Moreno
Telex: 422035
Telecopier: (1-212) 554-9349
Commitment
$10,000,000.00 GENERALE BANK
By______________/s/_________________
Name:
Title:
Lending Office:
New York Branch
520 Madison Avenue
(40-41st Floor)
New York, NY 10022
U.S.A.
Attention: Mr. Stephane Garceau
Telex: 6801235 SGBNYC
Telecopier: (1-212) 838-7492
Commitment
$10,000,000.00 THE LONG TERM CREDIT BANK OF JAPAN,
LTD.
By______________/s/_________________
Name:
Title:
Lending Office:
New York Branch
165 Broadway
New York, NY 10006
U.S.A.
Attention: Mr. James Schiavone
Vice President-Finance Operations
Telex: 425722 LTCBUI
Telecopier: (1-212) 608-2371
Commitment
$5,000,000.00 CREDIT NATIONAL
By_____________/s/__________________
Name:
Title:
Lending Office:
U.S. Agency
520 Madison Avenue
New York, NY 10022
U.S.A.
Attention: Mr. Thierry Hasse
Ms. Theresa Killen
Telecopier: (1-212) 832-6088
Commitment
$5,000,000.00 THE KIYO BANK, LTD.
By__________________/s/__________
Name:
Title:
Lending Office:
New York Branch
45 Broadway, 23rd Fl.
New York, NY 10006
U.S.A.
Attention: Mr. Shigeo Yamamoto
Manager
Telex: 4977133 KIYO UI
Telecopier: (1-212) 635-9306
List of omitted Exhibits and Schedules to Bontang IV Loan
Agreement, dated as of August 26, 1991, among Continental Bank
International as Trustee under the Bontang IV Trustee and Paying
Agent Agreement as Borrower, Chase Manhattan Asia Limited and The
Mitsubishi Bank, Limited as Coordinators, the other banks and
financial institutions named herein as Arrangers, Co-Arrangers,
Lead Managers, Managers, Co-Managers and Lenders, The Chase
Manhattan Bank, N.A. and The Mitsubishi Bank, Limited as Co-Agents
and The Chase Manhattan Bank, N.A. as Agent.
Exhibit Description
EXHIBIT A FORM OF NOTICE OF BORROWING
EXHIBIT B-1 FORM OF NOTICE OF DEFERRAL
EXHIBIT B-2 FORM OF NOTICE OF INTEREST PERIOD
EXHIBIT C-1 FORM OF NOTE
EXHIBIT C-2 FORM OF TRANSFER CERTIFICATE
EXHIBIT D-1 FORM OF LEGAL OPINION OF KELLEY DRYE & WARREN,
COUNSEL TO THE BORROWER
EXHIBIT D-2 FORM OF LEGAL OPINION OF MAYER, BROWN & PLATT,
COUNSEL TO THE BORROWER
EXHIBIT E-1 FORM OF LEGAL OPINION OF THE SPECIAL LEGAL
ADVISOR TO THE PRESIDENT DIRECTOR OF PERTAMINA
EXHIBIT E-2 FORM OF LEGAL OPINION OF BAKER & BOTTS, SPECIAL
COUNSEL TO CERTAIN OF THE PRODUCERS
EXHIBIT E-3 FORM OF LEGAL OPINION OF WHITE & CASE, SPECIAL
NEW YORK COUNSEL TO PERTAMINA
EXHIBIT F FORM OF LEGAL OPINION OF SKADDEN, ARPS,
SLATE, MEAGHER & FLOM, SPECIAL COUNSEL TO THE
AGENT AND THE LENDERS
Schedule Description
SCHEDULE 1 BASIC AGREEMENTS
SCHEDULE 2 DRAWDOWN SCHEDULE