AMENDED AND RESTATED
DEBT SERVICE ALLOCATION AGREEMENT
THIS AGREEMENT made as of the 9th day of February, 1988,
among PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA
("Pertamina") and ROY M. HUFFINGTON, INC. ("Huffco"), VIRGINIA
INTERNATIONAL COMPANY, ULTRAMAR INDONESIA LIMITED, VIRGINIA
INDONESIA COMPANY, UNION TEXAS EAST KALIMANTAN LIMITED, UNIVERSE
TANKSHIPS, INC., HUFFINGTON CORPORATION, TOTAL INDONESIE ("Total"),
UNOCAL INDONESIA, LTD. ("Unocal"), and INDONESIA PETROLEUM, LTD.
(herein collectively "Contractors" and individually "Contractor"),
W I T N E S S E T H :
WHEREAS, Pertamina and the Contractors are currently
parties to an agreement designated as Debt Service Allocation
Agreement No. 2, dated as of June 9, 1987 (the "Source Document");
and
WHEREAS, Pertamina and the Contractors are authorizing
the Bontang III Trustee to enter into a Financing Agreement and may
from time to time hereafter authorize one or more of the Trustees
to enter into other Financing Agreements, in each case to provide
for the borrowing of additional funds to pay certain costs of
Financed Capital Projects; and
WHEREAS, Pertamina and the Contractors wish to amend and
restate the Source Document in order to set forth the arrangements
which will hereafter govern the allocation among Pertamina and the
Contractors of the reduction in aggregate distributions under all
of the Trust Agreements resulting from Debt Service under the
Financing Agreements and certain other loan agreements;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the following terms shall have the
meanings set forth below:
"Accountants" shall mean that firm of independent public
accountants appointed by the Producers pursuant to the provisions
of the Trust Agreements.
"Additional Debt Service" shall mean Debt Service with
respect to any Financing Agreement entered into hereafter which is
designated as Additional Debt Service under this Agreement by a
Debt Service Designation Memorandum.
"Aggregate Dollar Share" shall have the meaning specified
in Section 2.2.
"Allocation Trust Agreements" shall mean the Bontang II
Trust Agreement, the Bontang III Trust Agreement, the Bontang
Excess Sales Trust Agreement and the Bontang LPG Trust Agreement.
"Allocation Trustees" shall mean all of the trustees
under the Allocation Trust Agreements, collectively, and
"Allocation Trustee" shall mean one of such Allocation Trustees as
the context may require.
"Applicable Percentage" shall initially mean 22.57% in
the case of Common Facilities Debt Service and 77.43% in the case
of Relocation Debt Service, provided, however, that such
percentages are based upon estimated construction costs of the
facilities to be financed (U.S. $6.259 million for construction of
the new administration building, fire station and area I
maintenance facilities and U.S. $21.476 million for relocation of
facilities required for construction of liquefaction train "E")
and, upon the completion of construction thereof, the Producers
shall enter into an agreement supplemental to this Agreement
adjusting such percentages to the extent required to reflect the
actual costs of construction and shall give notice of any such
adjustment to the Allocation Trustees, and provided, further, that
any such adjustment shall not be retroactive but shall only apply
to calculations made hereunder after notice thereof is received by
the Allocation Trustees.
"Badak Jilco Debt Service" shall mean all Debt Service
with respect to the Badak Jilco Loan Agreement.
"Badak Jilco Loan Agreement" shall have the meaning
specified in the Bontang I trust Agreement.
"Badak III LNG Sales Contract" shall mean the agreement
so entitled dated as of March 19, 1987, as hereafter amended,
between Pertamina and Chinese Petroleum Corporation.
"Badak Special Accounts" shall have the meaning
specified in the Bontang I Trust Agreement.
"Badak Special Financing Debt Service" shall mean all
Debt Service with respect to the Badak Special Financing Agreement.
"Badak Special Financing Agreement" shall have the
meaning specified in the Bontang I Trust Agreement.
"Base Load Quantities" shall have the meaning specified
in the Bontang I Trust Agreement.
"Bontang I Trust Agreement" shall mean the Badak Trustee
and Paying Agent Agreement as amended and restated effective as of
the date of this Agreement, as hereafter amended, among the
Producers and Continental Bank International.
"Bontang I Trustee" shall mean the trustee under the
Bontang I Trust Agreement. "Bontang II Trust Agreement"
shall mean the Badak Expansion Trustee and Paying Agent Agreement
dated as of July 15, 1981, as amended to the date hereof and as
hereafter amended, among the Producers and Continental Bank
International.
"Bontang II Trustee" shall mean the trustee under the
Bontang II Trust Agreement.
"Bontang III Trust Agreement" shall mean the Bontang III
Trustee and Paying Agent Agreement dated as of the date hereof, as
hereafter amended, among the Producers and Continental Bank
International.
"Bontang III Trustee" shall mean the trustee under the
Bontang III Trust Agreement.
"Bontang Excess Sales Trust Agreement" shall mean the
Bontang Excess Sales Trustee and Paying Agent Agreement, as amended
and restated effective as of the date hereof, as hereafter amended,
among the Producers and Continental Bank International.
"Bontang Excess Sales Trustee" shall mean the trustee
under the Bontang Excess Sales Trust Agreement.
"Bontang LPG Trust Agreement" shall mean, when such
agreement becomes effective, the Bontang LPG Trustee and Paying
Agent Agreement to be entered into hereafter by the Producers and
Continental Bank International with respect to the proceeds of LPG
produced at the Bontang Plant, as such agreement may be thereafter
amended.
"Bontang LPG Trustee" shall mean, when the Bontang LPG
Trust Agreement becomes effective, the trustee thereunder.
"Bontang Plant" shall have the meaning specified in the
Processing Agreement.
"Borrowed Amounts" shall have the meaning specified in
Financing Agreement No. 3.
"Borrowing Trustee" shall mean any Trustee which is a
party to any of the Financing Agreements and "Borrowing Trustees"
shall mean all of such Borrowing Trustees, collectively.
"Calculation Percentage" shall have the meaning specified
in the Processing Agreement.
"Common Facilities Debt Service" shall mean all Debt
Service with respect to borrowings pursuant to Financing Agreement
No. 1 and the Applicable Percentage of Debt Service with respect to
borrowings pursuant to Tranche B.
"Contingent Support" shall mean amounts so designated
pursuant to any Trust Agreement which are paid to the Bontang III
Trustee for deposit in any of the Debt Service Accounts established
pursuant to the Bontang III Trust Agreement.
"Contingent Support Trustees" shall mean, collectively,
the Bontang Excess Sales Trustee and all other Trustees which may
hereafter enter into a Trust Agreement which provides for the
payment of Contingent Support, and "Contingent Support Trustee"
shall mean one of such Trustees as the context may require.
"Contractor" and "Contractors" are each defined in the
title paragraph of this Agreement.
"Debt Service" shall mean (i) amounts paid by any
Borrowing Trustee with respect to principal, interest and other
fees and expenses incurred by such Trustee under a Financing
Agreement, as the same are paid into a Debt Service Account (ii)
Contingent Support paid by any Contingent Support Trustee, as the
same is paid to the Bontang III Trustee and (iii) amounts paid by
the Bontang I Trustee with respect to principal, interest and other
fees and expenses under (a) the Badak Jilco Loan Agreement, as the
same are paid over to the Escrow Account and (b) the Badak Special
Financing Agreement, as the same are set aside in the Badak Special
Accounts. The term Debt Service shall not include, however (x)
such amounts at such times as actually paid from a Debt Service
Account to lenders or (y) amounts paid from Borrowed Amounts or
Contingent Support by the Bontang III Trustee into a Debt Service
Account established pursuant to the Bontang III Trust Agreement.
Except as hereinafter provided, any amounts paid by a Producer
pursuant to Sections 3.2, 3.3(a) or Part 4 of Producers Agreements
No. 1, 2 and 3, or the corresponding sections of any other
Producers Agreement, shall be deemed to be Debt Service paid by the
Borrowing Trustee which is a party to the Financing Agreement with
respect to which such payment was made. Any amount paid by a
Producer pursuant to any of the Producers Agreements which is paid
as a result of an event involving such Producer, or for which such
Producer is responsible, which (i) is not directly related to the
Bontang Plant, the supply of Natural Gas thereto, the production of
LNG or LPG thereat or the transportation or sale of LNG or LPG
therefrom and (ii) causes any amount payable to a Trustee under any
of the LNG Sales Contracts or any related agreement not to be paid
to such Trustee as contemplated by such LNG Sales Contract or
related agreement shall not be deemed to be Debt Service.
"Debt Service Accounts" shall mean (i) all accounts,
including any sub-accounts thereof, which a Borrowing Trustee opens
and into which it transfers LNG revenues or other funds in
anticipation of payments of principal, interest and other fees and
expenses pursuant to any of the Financing Agreements, (ii) the
Reserve Account, and (iii) the Escrow Account and (iv) the Badak
Special Accounts, and "Debt Service Account" shall mean one of such
Debt Service Accounts as the context may require.
"Debt Service Designation Memorandum" shall mean any
instrument so entitled hereafter entered into by the Producers in
order to designate any Debt Service as "Additional Debt Service"
hereunder and to specify the manner in which such Debt Service is
to be allocated under this Agreement.
"Escrow Account" shall have the meaning specified in the
Bontang I Trust Agreement.
"Estimated Debt Service Percentages" for each Producer
for any calendar year shall mean the percentages most recently
certified by the Accountants with respect to such Producer and such
year pursuant to Section 2.3(a).
"Excluded Quantities" shall mean that portion of the
BTU's loaded pursuant to the 1973 LNG Sales Contract which relates
to the quantities provided for in the supply Agreement dated
December 3, 1973 between Pertamina and the Huffco Group, as
originally executed.
"Financed Capital Projects" shall have the meaning
specified in the Processing Agreement.
"Financing Agreement No. 1" shall mean Bontang Capital
Projects Loan Agreement No. 1 dated as of September 10, 1986, as
amended to the date hereof and as hereafter amended, entered into
by the Bontang I Trustee and providing for the borrowing of up to
U.S. $43,700,000.
"Financing Agreement No. 2" shall mean Bontang Capital
Projects Loan Agreement No. 2 dated as of June 9, 1987, as amended
to the date hereof and as hereafter amended, entered into by the
Bontang I Trustee and providing for the borrowing of up to U.S.
$148,800,000, divided into Tranche A and Tranche B.
"Financing Agreement No. 3" shall mean the Bontang III
Loan Agreement dated as of the date hereof, as hereafter amended,
entered into by the Bontang III Trustee and providing for the
borrowing of up to U.S. $316,000,000.
"Financing Agreements" shall mean Financing Agreement No.
1, Financing Agreement No. 2, Financing Agreement No. 3 and all
loan, credit or other similar agreements which a Trustee may enter
into hereafter with respect to which Additional Debt Service is
payable.
"Huffco" is defined in the title paragraph of this
Agreement.
"Huffco Group" shall mean Huffco, Virginia International
Company, Ultramar Indonesia Limited, Virginia Indonesia Company,
Union Texas East Kalimantan Limited, Universe Tankships, Inc., and
Huffington Corporation and their predecessors or successors in
interest.
"LNG" shall have the meaning specified in the Processing
Agreement.
"1973 LNG Sales Contract" shall mean the LNG Sales
Contract dated as of December 3, 1973, as heretofore and hereafter
amended, between Pertamina and various Japanese buyers of LNG.
"LNG Sales Contracts" shall have the meaning specified in
the Processing Agreement.
"LPG" shall have the meaning specified in the Processing
Agreement.
"Natural Gas" shall have the meaning specified in the
Processing Agreement.
"Pertamina" is defined in the title paragraph of this
Agreement.
"Plant Operator" shall have the meaning specified in the
Processing Agreement.
"Processing Agreement" shall mean the Bontang LNG
Processing Agreement originally dated as of July 1, 1983, as
amended and restated effective as of the date hereof, as hereafter
amended, among the Producers and the Plant Operator.
"Producer" shall mean each of Pertamina and the
Contractors, and "Producers" shall mean, collectively, all of
Pertamina and the Contractors.
"Producers Agreement No. 1" shall mean the agreement
entitled "Producers Agreement" dated as of September 10, 1986, as
amended to the date hereof and as hereafter amended, among
Pertamina and the Huffco Group and the lenders under Financing
Agreement No. 1.
"Producers Agreement No. 2" shall mean the agreement so
entitled dated as of June 9, 1987, as amended to the date hereof
and as hereafter amended, among Pertamina and the Huffco Group and
the lenders under Financing Agreement No. 2.
"Producers Agreement No. 3" shall mean the Bontang III
Producers Agreement dated as of the date hereof, as hereafter
amended, among the Producers and the lenders under Financing
Agreement No. 3.
"Producers Agreements" shall mean Producers Agreement
No. 1, Producers Agreement No. 2, Producers Agreement No. 3 and all
similar agreements so entitled which any of the Producers may
hereafter enter into with lenders under a Financing Agreement, as
the same may be amended hereafter.
"Producers' Percentage" shall have the meaning specified
in the Processing Agreement, except that solely for purposes of
allocating the Debt Service related reductions in distributions in
accordance with this Agreement the "Producers' Percentage", as to
each of Pertamina and the Huffco Group and Pertamina and the Total
Group, and as to the 1973 LNG Sales Contract and as to each other
LNG Sales Contract in respect of which (i) the revenues thereunder
are subject to sharing in accordance with the Badak Gas Unit East
Kalimantan Joint Operating Agreement executed on June 25, 1977 (but
effective as of January 1, 1976) and (ii) no supply agreement or
related memorandum otherwise establishes an alternate method for
the sharing of such revenues, shall be deemed to be 97.9% for
Pertamina and the Huffco Group and 2.1% for Pertamina and the Total
Group.
"Provisional Debt Service" shall mean, with respect to
any Debt Service, payments by any Allocation Trustee to reimburse
Producers which have borne more than their respective Estimated
Debt Service Percentages of such Debt Service, together with
interest on the Reimbursement Amount from and including the date of
such Debt Service payment to, but not including, the date of such
reimbursement, at the rate equal to the weighted average of the
interest rates in effect under Financing Agreement No. 3 on the
date of such reimbursement.
"Reimbursement Amount" shall mean the amount of any
Provisional Debt Service payment other than the portion thereof
attributable to interest on said reimbursement amount.
"Relocation Debt Service" shall mean the Applicable
Percentage of Debt Service with respect to borrowings pursuant to
Tranche B.
"Reserve Account" shall have the meaning specified in the
Bontang III Trust Agreement.
"Sales Contract's Percentage" shall have the meaning
specified in the Processing Agreement.
"Sharing Percentages", as to any Trust Agreement, shall
have the meaning specified in such Trust Agreement.
"Second Dock Debt Service" shall mean Debt Service with
respect to borrowings pursuant to Tranche A.
"Supply Agreement" shall have the meaning specified in
the Processing Agreement.
"Total" is defined in the title paragraph of this
Agreement.
"Total Group" shall mean Total and Indonesia Petroleum,
Ltd. and their successors in interest.
"Train E Debt Service" shall mean all Debt Service with
respect to Financing Agreement No. 3.
"Tranche A" shall mean the tranche so designated in
Financing Agreement No. 2, in the maximum principal amount of U.S.
$121,800,000.
"Tranche B" shall mean the tranche so designated in
Financing Agreement No. 2, in the maximum principal amount of U.S.
$27,000,000.
"Trust Agreements" shall mean, collectively, the
Bontang I Trust Agreement, the Bontang II Trust Agreement, the
Bontang III Trust Agreement, the Bontang Excess Sales Trust
Agreement and the Bontang LPG Trust Agreement and all other similar
agreements hereafter entered into by Pertamina and Continental Bank
International, and "Trust Agreement" shall mean one of such Trust
Agreements as the context may require.
"Trustees" shall mean the trustees under the Trust
Agreements, and "Trustee" shall mean one of such Trustees as the
context may require.
"Unocal" is defined in the title paragraph of this
Agreement.
"Unocal Group" shall mean Unocal and Indonesia Petroleum,
Ltd. and their successors in interest.
ARTICLE 2
ALLOCATION OF DEBT SERVICE
2.1 Distributions with respect to Sharing Percentages
under the Allocation Trust Agreements shall be adjusted in a manner
which will cause the reduction in aggregate distributions under all
of the Trust Agreements resulting from Debt Service paid during
each calendar year to be allocated among the Producers in
accordance with this Article 2.
2.2 The share of each Producer in the reduction in
aggregate distributions with respect to Sharing Percentages
attributable in each calendar year to:
- Common Facilities Debt Service shall be equal to its
Calculation Percentage(s) of its Producers' Percentage(s) of
each Sales Contract's Percentage of such Debt Service paid by
the Bontang I Trustee during such calendar year;
- Second Dock Debt Service shall be equal to its
Calculation Percentage(s) of its Producers' Percentage(s) of
each Sales Contract's Percentage (in this instance such Sales
Contract's Percentages being calculated as if the Excluded
Quantities had not been loaded and as if no LPG had been
loaded) of such Debt Service paid by the Bontang I Trustee
during such calendar year;
- Relocation Debt Service shall be equal to its
Calculation Percentage(s) of its Producers' Percentage as to
the Badak III LNG Sales Contract of such Debt Service paid by
the Bontang I Trustee during such calendar year;
- Train E Debt Service shall be equal to its Calculation
Percentage(s) of its Producers' Percentage as to the Badak III
LNG Sales Contract of such Debt Service paid by the Bontang
III Trustee and the Contingent Support Trustees during such
calendar year;
- Badak Jilco Debt Service and Badak Special Financing
Debt Service shall be equal to its Calculation Percentage(s)
of its Producers' Percentage(s), if any, as to the Base Load
Quantities under the 1973 LNG Sales Contract of such Debt
Service paid by the Bontang I Trustee during such calendar
year; and
- Additional Debt Service shall be as provided in the
Debt Service Designation Memorandum with respect thereto.
The portion of aggregate Debt Service which each Producer
is required to bear during any period is herein called its
"Aggregate Dollar Share" for such period.
2.3(a) On or before the 20th day of December in each
calendar year (initially for 1988, on the date of the execution and
delivery of this Agreement) the Accountants shall calculate and
deliver by telex to the Allocation Trustees and each Producer a
certificate setting forth the Estimated Debt Service Percentages
for each Producer of each of (i) the estimated Common Facilities
Debt Service, (ii) the estimated Second Dock Debt Service, (iii)
the estimated Relocation Debt Service, (iv) the estimated Train E
Debt Service, (v) the estimated Badak Jilco Debt Service and Badak
Special Financing Debt Service and (vi) any estimated Additional
Debt Service, to be paid during the following calendar year (for
1988 in the case of the first such calculation). Within 5 business
days after the 10th day of March, June and September in each
calendar year the Accountants shall re-calculate and deliver by
telex to the Allocation Trustees and each producer revised
Estimated Debt Service Percentages for the current calendar year.
The Estimated Debt Service Percentage for each Producer of:
- the estimated Common Facilities Debt Service shall be
its Calculation Percentage(s) of its Producers' Percentage(s)
of the latest estimate of each Sales Contract's Percentage for
the calendar year in question as prepared by the Plant
Operator pursuant to Article 11 of the Processing Agreement;
- the estimated Second Dock Debt Service shall be its
Calculation Percentage(s) of its Producers' Percentage(s) of
the latest estimate of each Sales Contract's Percentage (in
this instance such Sales Contract's Percentages being
calculated as if the Excluded Quantities had not been loaded
and as if no LPG had been loaded) for the calendar year in
question as prepared by the Plant Operator pursuant to Article
11 of the Processing Agreement;
- the estimated Relocation Debt Service shall be its
Calculation Percentage(s) of its Producers' Percentage(s) as
to the Badak III LNG Sales Contract;
- the estimated Train E Debt Service shall be its
Calculation Percentage(s) of its Producers' Percentage(s) as
to the Badak III LNG Sales Contract;
- the estimated Badak Jilco Debt Service and Badak
Special Financing Debt Service shall be equal to its
Calculation Percentage(s) of its Producers' Percentage(s), if
any, as to the Base Load Quantities under the 1973 LNG Sales
Contract; and
- the estimated Additional Debt Service shall be as
provided in the Debt Service Designation Memorandum with
respect thereto.
(b) (i) Within the first 5 business days of April, July
and October in each calendar year, the Accountants shall calculate
the Aggregate Dollar Share for each Producer of the Debt Service
paid during the current calendar year through the end of the
immediately preceding calendar quarter. These end-of-quarter,
year-to-date calculations shall be based upon the latest estimate
of the Sales Contract's Percentages (where applicable) for the
calendar year in question as prepared by the Plant Operator
pursuant to Article 11 of the Processing Agreement.
(ii) Within 10 business days after the end of each
calendar year, the Accountants shall calculate the Aggregate Dollar
Share for each Producer of the Debt Service paid during such
calendar year. This year-end calculation shall be based upon the
actual Sales Contract's Percentages (where applicable) for such
calendar year.
(c) When making each of the calculations under clause
(b) of this Section 2.3, the Accountants shall also calculate the
portion of the Debt Service paid during the period in question
which has actually been borne by each Producer. For this purpose:
(i) the amount actually borne by each Producer in
respect of Debt Service paid during the calendar quarter ended
immediately prior to the making of such calculation shall be
equal to (the sum of A, B and C) minus D, where:
- A equals the aggregate amount by which Sharing
Percentage distributions to such Producer by the
Borrowing Trustees, the Contingent Support Trustees and
the Bontang I Trustee were reduced during such quarter by
reason of Debt Service paid by such Trustees,
- B equals the aggregate amount of any Debt
Service paid by such Producer during such quarter
pursuant to Producers Agreements,
- C equals the Reimbursement Amount of the
aggregate amount of any Provisional Debt Service funded
by such Producer during such quarter through a reduction
in Sharing Percentage distributions to such Producer
pursuant to the Allocation Trust Agreements, and
- D equals the Reimbursement Amount of the
aggregate amount of any Provisional Debt Service payments
received by such Producer during such quarter pursuant to
the Allocation Trust Agreements; and
(ii) the amount actually borne by each Producer of Debt
Service paid during the current calendar year through the end
of the calendar quarter immediately preceding that referred to
in sub-clause (i) above shall equal the amount borne by each
Producer as of the end of such preceding calendar quarter as
previously determined in accordance with this clause (c).
Each of the above calculations shall be adjusted by the amount of
any increases or decreases pursuant to clauses (d) or (e) of this
Section 2.3 in the Sharing Percentage distributions made to such
Producer pursuant to the Allocation Trust Agreements during the
period in question. (d) In the event that a comparison
of the calculations made at the end of a calendar quarter or at the
end of a calendar year, as the case may be; pursuant to clauses (b)
and (c) of this Section 2.3 indicates that any Producer has borne
more than its Aggregate Dollar Share of Debt Service during the
period in question, the Accountants shall deliver by telex to each
Producer a certificate to this effect and instruct the Allocation
Trustees to pay to the Producers which have borne more than their
Aggregate Dollar Shares for the period in question, pro rata in
proportion to the excess amount borne by each such Producer, all
amounts otherwise distributable with respect to Sharing Percentages
under the Allocation Trust Agreements to the Producers which have
borne less than their Aggregate Dollar Shares for the period in
question until each Producer which has borne more than its
Aggregate Dollar Share shall have received the amount stated in the
certificate as the excess amount borne by such Producer.
(e) The Accountants shall also calculate, and reflect in
each certificate delivered pursuant to clause (d) of this
Section 2.3, the amount of any adjustments which may be required to
give retroactive effect to any changes in Producers' Percentages
effected from time to time by, or pursuant to, Article 2 of the
Supply Agreements with respect to the Badak III LNG Sales Contract,
so as to cause Debt Service to be allocated hereunder in the same
manner as it would have been allocated had such changes become
effective on June 9, 1987. Any adjustment amount due to a Producer
pursuant to this clause (e) shall not bear interest.
2.4 In connection with the adjustments under Section 2.3
hereof to be made at the end of each calendar year, interest earned
on the funds in any disbursement trust agreement entered into in
connection with a Financing Agreement in respect of the calendar
year involved (and not disbursed pursuant to payment instructions)
shall be apportioned by the Accountants among the Producers in the
same proportions as the Producers bore the Debt Service with
respect to such Financing Agreement for such calendar year. After
having made the foregoing calculations, the Accountants shall
instruct each Trustee which has the authority to instruct a
disbursement trustee (with a copy of such instructions to be sent
by telex or facsimile to each Producer) to instruct the appropriate
disbursement trustee(s) to distribute from the disbursement trusts
to such Trustee an amount equal to such net interest for the
preceding calendar year and such Trustee shall distribute from the
amount so received to each of the Producers the portion of such net
interest amount allocated to it.
2.5 In order to give effect to the provisions of this
Article 2:
(a) The Producers shall cause the Plant Operator to
furnish to the Accountants the statements of the Sales Contract's
Percentages provided for in Section 11.01 of the Processing
Agreement, except that such statements for a completed calendar
year shall be furnished as soon as practicable after the end of
such calendar year.
(b) The Producers shall, to the extent necessary, cause
amendments to be made to the Trust Agreements which require the
Trustees (i) to act in accordance with instructions and other
directives given to the Trustees from time to time by the
Accountants in accordance with the terms of this Agreement, (ii) to
provide to the Accountants such information as to Debt Service,
Provisional Debt Service and other matters as is necessary to
enable the Accountants to perform their functions hereunder in a
timely manner, and (iii) to cause the Allocation Trustees to make
Provisional Debt Service payments which will, to the nearest extent
practicable, assure that each Producer bears the share of Debt
Service contemplated by this Agreement.
(c) In the event any Trustee shall make a payment of
Debt Service in excess of the amount actually required to be paid
but shall correct such overpayment prior to the inclusion of the
overpaid amount in any determination hereunder of Debt Service
borne by the Producers, such overpaid amount shall be disregarded
for purposes of all such determinations.
(d) In the event any Producer makes a payment pursuant
to a Producers Agreement which such Producer claims should be
deemed Debt Service, such Producer shall promptly provide to the
Accountants (with a copy to each other Producer and the Borrowing
Trustee which is a party to the Financing Agreement with respect to
which such payment was made) such information as is necessary to
demonstrate that such payment constitutes Debt Service as defined
herein and to establish the type of Debt Service so paid.
2.6 The provisions of this Article 2 are intended solely
for the benefit of the Producers and for the making of adjustments
among themselves and are not intended and shall not be interpreted
to require any payment by any Producer to the Trustees or to any
lender under the Financing Agreements, the Badak Special Financing
Agreement, the Badak Jilco Loan Agreement or any other loan or
credit agreement.
2.7 Producers Agreements may provide for certain
payments to be made thereunder in accordance with pre-tax
percentage interests of the Producers. Any use of such pre-tax
percentages is based upon the assumption that any payment made on
the basis thereof constituting Debt Service will constitute a
currently deductible expense for purposes of income taxes imposed
by The Republic of Indonesia. In the event any Producer makes a
payment pursuant to any such Producers Agreement which is deemed to
be Debt Service hereunder, the Producers will use their best
efforts to assure that such payment is so deductible by any
Producer which bears the cost thereof pursuant to the terms hereof.
In the event such payment should ultimately be determined not to be
so deductible by any Producer, the amounts payable to the Producers
under the Trust Agreements will be adjusted so as to achieve the
same economic result as if such deduction had been allowed. Any
adjustment made pursuant to the foregoing provisions shall be
without prejudice to rights of any Producer pursuant to any other
agreements among any Producers.
2.8 Interest or any other income arising out of
investment of funds in a Debt Service Account established with
respect to any Financing Agreement, the Badak Special Financing
Agreement or the Badak Jilco Loan Agreement shall be credited to
such account and retained therein until being applied to Debt
Service or distributed in accordance with this Section 2.8. A
separate sub-account of the Debt Service Account under the Bontang
I Trust Agreement shall be established for Debt Service with
respect to borrowings pursuant to Financing Agreement No. 1,
Tranche A and Tranche B, respectively. Interest or any other
income arising out of the investment of funds in each such sub-
account shall be allocated to the sub-account for which such
investment was made. Upon receipt of (a) notice from Pertamina of
the payment in full of the final installment of principal of,
accrued interest on and all other amounts due with respect to, the
loan and all tranches thereof made pursuant to any Financing
Agreement, the Badak Special Financing or the Badak Jilco Loan
Agreement and (b) notice from the relevant Trustee of the amount
then held in the relevant Debt Service Accounts, the Accountants
shall apportion the amount then held in such Debt Service Accounts
among the Producers in accordance with their respective Estimated
Debt Service Percentages of each type of Debt Service for which
such amount is held, as most recently determined pursuant to
Section 2.3(a). After having made the foregoing calculations, the
Accountants shall instruct such Trustee (with a copy of such
instructions to be sent by telex or facsimile to each Producer) to
distribute to each of the Producers the portion of such amount
allocated to it.
2.9 Solely for purposes of allocating the Debt Service
related reduction in aggregate distributions under the Trust
Agreements, the portion of each Debt Service payment made by the
Bontang I Trustee which is attributable to Common Facilities Debt
Service, Second Dock Debt Service and/or Relocation Debt Service
shall be determined as provided in this Section 2.9. All
references in this Section 2.9 to "clauses" are to the specified
clauses of Section 14.2 of the Bontang I Trust Agreement and all
references to accounts are to those established pursuant to the
Bontang I Trust Agreement.
(i) Any such payment to the Debt Service Account made in
compliance with the fifth sentence of clause (c) shall be deemed
attributable to the Debt Service payments required by all notices
pursuant to clause (b) then in effect, and shall be allocated among
those of the above types of Debt Service with respect to which such
payments are then required, on a pro rata basis in proportion to
the amount of Debt Service so required for each such type.
(ii) Any such payment to the Debt Service Account made in
compliance with the sixth sentence of clause (c) shall be deemed
attributable to the Debt Service payments required by all notices
from Pertamina pursuant to such sentence then in effect, and shall
be allocated among those of the above types of Debt Service with
respect to which such payments are then required, on a pro rata
basis in proportion to the amount of Debt Service so required for
each such type.
(iii) Any such payment made in compliance with clause
(e) shall be deemed attributable to the Debt Service required by
all notices pursuant to such clause then in effect, and shall be
allocated among those of the above types of Debt Service with
respect to which such payments are then required, on a pro rata
basis in proportion to the amount of Debt Service so required for
each such type.
(iv) Any such payment to the Debt Service Account made in
compliance with the second sentence of clause (f) for deposit in
the Acceleration Account established thereby, or the fifth sentence
of clause (f) for payment to the Affected Lenders specified
therein, shall be deemed attributable to the Debt Service then
required for all such deposits or payments to Affected Lenders, and
shall be allocated among those of the above types of Debt Service
with respect to which such deposits or payments are then required,
on a pro rata basis in proportion to the aggregate amount of such
deposits and payments required for each such type.
(v) Any such payment to the Debt Service Account made in
compliance with clause (g) shall be deemed attributable to the Debt
Service required by all notices pursuant to such clause then in
effect, and shall be allocated among those of the above types of
Debt Service with respect to which such payments are then required,
on a pro rata basis in proportion to the outstanding principal
amount of Trustee Indebtedness (as defined in the Bontang I Trust
Agreement) owed with respect to each such type.
(vi) Any amount paid by a Producer pursuant to a
Producers Agreement which constitutes Debt Service hereunder shall
be deemed attributable to and allocated to the type(s) of Debt
Service paid by such Producer.
ARTICLE 3
MISCELLANEOUS
3.1 Effective as of the date first above written, the
Source Document shall be amended and restated in its entirety as
provided herein, and, as so amended and restated, this Agreement
shall remain in effect until all loans to the Borrowing Trustees
pursuant to Financing Agreements and all loans pursuant to the
Badak Special Financing Agreement and the Badak Jilco Loan
Agreement have been repaid in full and all adjusting payments
required by this Agreement have been finally determined and
settled.
3.2 ALL DISPUTES ARISING IN CONNECTION WITH THIS
AGREEMENT OR THE INTERPRETATION OR PERFORMANCE HEREOF, SHALL BE
FINALLY SETTLED BY ARBITRATION CONDUCTED IN THE ENGLISH LANGUAGE IN
PARIS, FRANCE, BY THREE ARBITRATORS UNDER THE RULES OF ARBITRATION
OF THE INTERNATIONAL CHAMBER OF COMMERCE. JUDGMENT UPON THE AWARD
RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION, OR
APPLICATION MAY BE MADE TO SUCH COURT FOR A JUDICIAL ACCEPTANCE OF
THE AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. ANY
AWARD MADE UNDER THIS SECTION 3.2 SHALL BE BINDING UPON ALL PARTIES
CONCERNED.
3.3 All notices, approvals, instructions and other
communications for purposes of this Agreement shall be in writing,
which shall include transmission by cable, telex or facsimile
transmission. All communications given by cable, telex or
facsimile transmission shall be directed as follows:
A. To Pertamina at the following mail, cable,
telex and telecopier addresses:
PERUSAHAAN PERTAMBANGAN MINYAK
DAN GAS BUMI NEGARA (Pertamina)
Jalan Medan Merdeka Timur 1-A
Jakarta
INDONESIA
Attention: LNG Coordinator
Cable: Pertamina
Jakarta
Attention: LNG Coordinator
Telex: 44134, 44152, 44441 or 44302
(Answerback: PTMJKT IA)
Telecopier No: 62-21343882
B. To the Contractors comprising the Huffco Group
at the following mail, telex and telecopier
addresses:
HUFFCO INDONESIA
P. O. Box 2828
Jakarta
INDONESIA
Attention: Vice President - Finance
Telex: 44421
(Answerback: HUFFCO IA)
Telecopier No: 62-213800037
c.c. Roy M. Huffington, Inc.
P. O. Box 4455
Houston, Texas 77210
U.S.A.
Attention: Vice President - Finance
Telex: 762810
(Answerback: HUFFCO HOU)
Telecopier No: 1-713-651-0104
C. To the Contractors comprising the Total Group at
the following mail, cable, telex and telecopier
addresses:
TOTAL INDONESIE
Tromolpos 10
Jakarta 10002
INDONESIA
Cable: Totalindo Jakarta
Telex: 44108
(Answerback: TOTAL JKT)
Telecopier: 62-21 520 0834
D. To the Contractors comprising the Unocal Group
at the following mail, telex and telecopier
addresses:
UNOCAL INDONESIA, LTD.
Ratu Plaza Office Tower, 7th Floor
Jalan Jenderal Sudirman
Jakarta
INDONESIA
Telex: 47335
(Answerback: UNOCAL IA)
Telecopier No: 62-21 711 954
Each of Vico, Total and Unocal is hereby designated the
representative of the Contractors comprising its respective group
for the giving and receipt of notices, approvals, instructions and
other communications under this Agreement. A new or successor
representative may be designated by notice to such effect signed by
all the Contractors comprising a group given to the other parties
to this Agreement ten days in advance of any such change. Until
receipt of any such notice, the other parties to this Agreement may
rely on any notice, approval, instruction or other communication
from or to the representative of a group as binding upon each of
the Contractors in such group, provided, however, that nothing in
this Agreement is intended to grant to the representative of a
group (or any successor representative designated pursuant to this
Section 3.3) any power or authority as among the Contractors in
such group themselves.
The representatives of each group may designate
additional addresses for particular communications as required from
time to time, and may change any address, by notice given ten days
in advance of such additions or changes. Immediately upon
receiving communications by cable, telex or facsimile transmission,
a party may request a repeat transmittal of the entire
communication or confirmation of particular matters.
3.4 This Agreement may not be amended, modified, varied
or supplemented except by a written agreement signed by the parties
hereto.
3.5 THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES
OF AMERICA.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed by its duly authorized representative
as of the date first above written.
PERUSAHAAN PERTAMBANGAN UNION TEXAS EAST KALIMANTAN
MINYAK DAN GAS BUMI LIMITED
NEGARA (PERTAMINA)
By: __________/S/_____________ By: ___________/S/_______________
ROY M. HUFFINGTON, INC. UNIVERSE TANKSHIPS, INC.
By: _________/S/______________ By: ___________/S/_______________
VIRGINIA INTERNATIONAL COMPANY HUFFINGTON CORPORATION
By: _________/S/______________ By: ___________/S/_______________
ULTRAMAR INDONESIA LIMITED TOTAL INDONESIE
By: ________/S/_______________ By: ___________/S/_______________
VIRGINIA INDONESIA COMPANY UNOCAL INDONESIA, LTD.
By: ________/S/_______________ By: ___________/S/_______________
INDONESIA PETROLEUM, LTD.
By: ___________/S/__________