DISBURSEMENT TRUSTEE AND
PAYING AGENT AGREEMENT
(Series 95-1)
THIS AGREEMENT, made and entered into as of this 1st day of
July, 1995, by and among BankAmerica International, not in its
individual capacity but solely as trustee and paying agent (in such
capacity, the "Bontang V Trustee") under the Bontang V Trustee and
Paying Agent Agreement dated as of July 1, 1995, as the same may be
amended from time to time (the "Bontang V Trust Agreement"); and
BankAmerica International, not in its individual capacity but
solely as disbursement trustee and paying agent under this
Agreement:
WITNESSETH:
WHEREAS, the Bontang V Trustee has entered into a Loan
Agreement dated as of July 1, 1995, among the Bontang V Trustee, as
Borrower; Bontang Train-G Project Finance Co., Ltd., as Tranche A
Lender; the Tranche B Lenders and Arrangers named therein; The
Long-Term Credit Bank of Japan, Limited, New York Branch, as
facility Agent; The Fuji Bank, Limited, as Intercreditor Agent; and
Credit Lyonnais, as Technical Agent (as amended or modified from
time to time, the "Bontang V Loan Agreement"); and
WHEREAS, as a matter of convenience, certain loan proceeds to
be received by the Bontang V Trustee under the Bontang V Loan
Agreement may be maintained in a disbursement trust fund until such
time as they are to be disbursed in accordance with the terms
hereof and of the Bontang V Trust Agreement;
NOW, THEREFORE, in consideration of the above premises and the
mutual promises hereinafter contained and other good and valuable
consideration, the parties hereto hereby agree as follows:
Article 1
Definitions
When used herein, the following terms shall have the meanings
set forth below:
"Bontang V Loan Agreement" shall have the meaning given such
term heretofore in this Agreement.
"Bontang V Trust Agreement" shall have the meaning given such
term heretofore in this Agreement.
"Bontang V Trustee" shall have the meaning given such term
heretofore in this Agreement.
"Capital Project Creditors" shall mean those persons to whom
payments are to be made hereunder as specified in payment
instructions duly given in accordance with the terms hereof.
"Depositary" shall mean the United States headquarters or a
United States branch of the following institutions appointed
pursuant to Section 3.1 as a depositary of funds, properties and
rights in the Disbursement Trust Fund:
(a) any branch or affiliate of BankAmerica International with
the power to act as a Depositary, or
(b) any other bank, trust company or financial institution
(in each case with trust powers) which (i) has a net worth in
excess of $100,000,000.00 or (ii) has outstanding debt securities
rated A or better by Standard and Poor's Rating Group or its
equivalent by Moody's Investors Service or another nationally
recognized rating agency in the United States and, in either case,
has been approved in writing by the Bontang V Trustee.
"Disbursement Trust Account" shall mean the records of account
established and maintained by the Trustee pursuant to Section 2.4
hereof with respect to the Disbursement Trust Fund, which shall be
designated by the Trustee and referred to by the parties hereto as
the "Series 95-1 Disbursement Trust Account."
"Disbursement Trust Fund" shall mean the disbursement trust
fund established pursuant to Article 2 hereof, which shall be
designated as the "Series 95-1 Disbursement Trust Fund."
"Escrow Agent" shall have the meaning given such term in
Section 3.4 hereof.
"Lenders" shall mean the lenders advancing funds to the
Bontang V Trustee under the Bontang V Loan Agreement.
"Loan Proceeds" means the funds advanced to the Bontang V
Trustee under the Bontang V Loan Agreement, and any Transferred
Amounts (as defined in Section 3.5(a) of the Bontang V Trust
Agreement).
"Producers" shall have the meaning given such term in the
Bontang V Trust Agreement.
"Trustee" shall mean BankAmerica International, acting not in
its individual capacity but solely as disbursement trustee and
paying agent under this Agreement, and its successors.
Any capitalized terms used herein that are not defined herein
shall have the meanings ascribed to them in the Bontang V Trust
Agreement.
Article 2
Appointment and Status of Trustee
2.1 Appointment. The Bontang V Trustee hereby appoints
BankAmerica International, and BankAmerica International hereby
accepts appointment as, and agrees to act as, the Trustee
hereunder, subject to the terms and conditions hereof. The
appointment of the Trustee is made hereunder pursuant to and for
the implementation of Section 3.5 of the Bontang V Trust Agreement.
The appointment hereunder may be changed only by the agreement in
writing of the Bontang V Trustee; provided, however, that the
resignation of or the appointment of a successor to the Bontang V
Trustee in accordance with the Bontang V Trust Agreement shall be
deemed also to be a resignation or, as the case may be, an
appointment of a successor to the Trustee hereunder.
2.2 Receipt of Loan proceeds. The Trustee shall receive and
hold, or cause to be held as part of the Disbursement Trust Fund,
all disbursements of Loan Proceeds received by it from the Lenders
under the Bontang V Loan Agreement.
2.3 Disbursement Trust Fund. All such amounts received
hereunder, including and together with any security or securities
acquired or other investments made for or with such amounts, all
appreciation and interest or dividends thereon and other income or
property received therefrom, shall constitute and be part of the
Disbursement Trust Fund to be held in trust for the benefit of
those having a right, to the extent provided herein, to
disbursements hereunder.
2.4 Disbursement Trust Account. The Trustee shall establish
and maintain at the Trustee's office records of account in which
necessary entries shall be made with respect to all receipts into
and payments out of the Disbursement Trust Account, which shall be
consistent with the treatment of Bontang V Trust Funds under
Section 9.3 (excluding the first sentence thereof) of the Bontang
V Trust Agreement.
2.5 Recording of Entries. In the records of account of the
Disbursement Trust Account, the Trustee shall, after receipt of
payment instructions pursuant to Article 4 hereof, record and make
entries for each of the Capital Project Creditors and the Bontang
V Trustee to reflect clearly the interest of each party in the
assets of the Disbursement Trust Fund that arise pursuant to such
instructions for payment to each respective party and the receipts
and payments therefrom.
2.6 Currencies. The Trustee shall hold or cause to be held
in the Disbursement Trust Fund all sums of money in the same
currencies as shall have been paid into it, unless otherwise
directed by the Bontang V Trustee for effecting necessary payments,
and the Trustee may establish and maintain bank accounts in such
currencies as shall be necessary for the foregoing.
2.7 Reports. The Trustee shall furnish to the Bontang V
Trustee:
(a) within 20 days after the close of each calendar quarter,
a statement prepared by the Trustee setting forth the amount and
source (by category) of funds received and disbursed pursuant to
this Agreement during such preceding calendar quarter, and a
statement of the cash and investments held under this Agreement as
of the end of such period; and
(b) within 45 days after the close of each calendar year, a
statement prepared by the Trustee setting forth the amount and
source (by category) of funds received and disbursed pursuant to
this Agreement during the previous calendar year and the income
earned on funds held in the Disbursement Trust Fund during the
previous calendar year, and a statement of the cash and investments
held under this Agreement as of the end of such period.
Article 3
Depositary and Escrow Agent
3.1 Appointment. The Trustee may, upon the consent of the
Bontang V Trustee, appoint and remove any Depositary for the
purposes of safekeeping, investment or disbursement of funds,
properties and rights in the Disbursement Trust Fund, and may
entrust the Depositary with the exclusive custody and possession of
such funds, properties and rights in the Disbursement Trust Fund.
3.2 Notification. If the Trustee shall have appointed a
Depositary, it shall notify the Bontang V Trustee of the
appointment as soon as practicable.
3.3 Responsibilities of Trustee. If the Trustee shall have
appointed a Depositary, the Trustee's responsibilities with respect
to the funds, properties and rights held by the Depositary shall
only be to maintain and administer the accounting of the
Disbursement Trust Account, and the Depositary shall have the
exclusive custody, responsibility for and possession of the funds,
properties and rights held by it.
3.4 Escrow Agent. The Trustee may, upon the consent of the
Bontang V Trustee, appoint and remove any bank, trust company or
financial institution that conforms to the definition of
"Depositary" as an escrow agent ("Escrow Agent"), and with respect
thereto, the provisions of Sections 3.2 and 3.3 above shall apply
mutatis mutandis.
3.5 Conditions of Appointment. It shall be a condition to
the appointment of any Depositary or Escrow Agent hereunder that
the bank, trust company or financial institution so appointed shall
agree to hold the funds, properties and rights held by it in trust
on the same basis, and subject to the same rights and obligations,
as are set forth in this Agreement with respect to the Trustee, and
upon such agreement, such rights and obligations shall be enjoyed
by and binding upon such Depositary or Escrow Agent. The terms of
appointment of any Depositary or Escrow Agent shall not be
inconsistent with the provisions of this Agreement, the Bontang V
Trust Agreement or the Bontang V Loan Agreement.
3.6 Required Consent. Without the consent of the Bontang V
Trustee, no funds, properties or rights shall be transferred from
the custody and possession of the Trustee to the custody and
possession of a Depositary or Escrow Agent, nor shall any such
funds, properties or rights be transferred from a Depositary or
Escrow Agent to the Trustee without such consent, unless such
transfer shall be required for effecting necessary payments
hereunder.
Article 4
Payment Instructions and Interest
4.1 No Interest. Except as otherwise provided in Article 6
below, no party shall have any interest or any right of whatever
kind or nature in the Disbursement Trust Fund until payment
instructions shall have been duly provided pursuant hereto. Upon
receipt by the Trustee of payment instructions provided in
accordance with and meeting the requirements of Section 4.2 below,
the payee (including any Capital Project Creditor) named therein
shall acquire an interest in the funds and assets of the
Disbursement Trust Fund only to the extent set forth in said
payment instructions.
4.2 Payment Instructions. With respect to any particular
payment, payment instructions hereunder will be honored only upon
the receipt of the Trustee of payment instructions from the Bontang
V Trustee. Each payment instruction from the Bontang V Trustee
hereunder shall include the following information:
(i) the designation of this Agreement as that under which
payment is to be made;
(ii) the name of payee and the place and manner of payment;
(iii) the amount of such payment and the currency to be
used; and
(iv) a brief description of the purpose of such payment,
together with the relevant invoice number or designation
of other relevant payment documentation.
4.3 Incompleteness. If any payment instruction does not
include all of the information required by Section 4.2 above, the
Trustee shall promptly notify the Bontang V Trustee by telex or
telecopier transmission (with a copy to the Producers) and shall
not comply with such incomplete instructions.
4.4 Entitled to Rely. The Trustee and any Depositary or
Escrow Agent shall be entitled to rely upon payment instructions
provided in accordance with this Article 4 in making payments out
of the funds in the Disbursement Trust Fund.
4.5 Making of Payments. Each of the Trustee and any
Depositary or Escrow Agent shall honor each payment instruction
submitted to it in accordance with this Article 4 by making the
payments specified therein only to the extent and out of amounts
then held in the Disbursement Trust Fund. In honoring such payment
instruction, neither the Trustee nor any Depositary or Escrow Agent
shall have any responsibility for determining whether or not the
payment being disbursed is being made in accordance with the
Bontang V Loan Agreement, the Bontang V Trust Agreement or any
other agreements or understandings, it being understood that the
Trustee's and any Depositary's or Escrow Agent's sole
responsibility with regard to any payment instructions shall be to
make disbursements in accordance therewith.
4.6 Sufficient Funds Required. Neither the Trustee nor any
Depositary or Escrow Agent shall be obligated to make a payment
unless and until it holds sufficient funds in the Disbursement
Trust Fund to make all payments referred to in the related payment
instruction, unless a partial payment is directed by the Bontang V
Trustee, but the Trustee or Depositary or Escrow Agent shall honor
any subsequent payment instruction if there shall be sufficient
funds to do so in the Disbursement Trust Fund.
4.7 Currencies of Payments. All payments made by the Trustee
or any Depositary or Escrow Agent in currencies other than those
held in the Disbursement Trust Fund shall be effected by such
exchange transactions pursuant to procedures directed by the
Producers and advised to the Trustee or such Depositary or Escrow
Agent, and the honoring of a payment instruction may be delayed for
any period necessary to effect such transactions. Expenses and
risk of exchange shall be borne by the Disbursement Trust Fund.
4.8 Distribution of Annual Income. The Trustee shall invest
monies in the Disbursement Trust Account in the same type of
investments and in the same manner as provided for in Sections 10.1
and 10.2 of the Bontang V Trust Agreement. Upon receipt of payment
instructions from the Bontang V Trustee on or after February 15 of
each year, which payment instructions shall include notification
from the Accountants regarding the amount of investment income
earned during such previous calendar year, the Trustee shall
promptly pay to the Bontang V Trustee the amount of such investment
income.
Article 5
Concerning the Trustee
5.1 Duties. In connection with its duties, rights and powers
under this Agreement (including in relation to transactions it may
enter into pursuant thereto), the Trustee shall be subject to the
following:
(a) The Trustee shall be entitled to act upon any notice,
certificate, request, direction, waiver, receipt or other document
that it in good faith believes to be genuine; and it shall be
entitled to rely upon the due execution, validity and
effectiveness, and the truth and acceptability of any provisions
contained therein.
(b) The Trustee shall not be liable for any error of judgment
or for any act done or omitted by it in good faith or for any
mistake of fact or law, or for anything which it may do or refrain
from doing, except for its own gross negligence or willful
misconduct, nor shall the Trustee be liable for special, indirect
or consequential loss or damage of any kind, including, without
limitation, lost profits, except such losses or damages resulting
from its willful misconduct.
(c) Neither the Trustee nor any Depositary or Escrow Agent
shall be required to furnish any bond or other security for the
faithful performance of its duties as such, in any jurisdiction.
(d) The Trustee may consult with, and obtain advice from,
accounting and legal advisers, and it shall incur no liability or
loss and shall be fully protected in acting in good faith in
accordance with the opinion and advice of such advisers.
(e) The Trustee shall have no duties other than those
specifically set forth or provided for in this Agreement. The
Trustee shall have no obligation to familiarize itself with and
shall have no responsibility with respect to any agreement to which
it is not a party relating to the transactions contemplated by this
Agreement nor any obligation to inquire whether any notice,
instruction, statement or calculation is in conformity with the
terms of any such agreement, except for those irregularities,
errors or mistakes apparent on the face of such document or to the
knowledge of the Trustee. If, however, any remittance or
communication received by the Trustee appears erroneous or
irregular on its face, the Trustee shall be under a duty to make
prompt inquiry to the person or party originating such remittance
or communication in order to determine whether a clerical error or
inadvertent mistake has occurred.
5.2 Compensation. The Trustee shall be entitled to
reasonable compensation to be agreed upon from time to time among
the parties for the services to be performed by it hereunder and to
be reimbursed for all reasonable out-of-pocket expenses incurred by
the Trustee in connection therewith. The Trustee may charge such
agreed compensation and expenses to the Disbursement Trust Fund,
providing the Bontang V Trustee with such evidence as to the nature
and amount of such expenses as the Bontang V Trustee may reasonably
require. If the balance in the Disbursement Trust Fund is
insufficient therefor, then the Bontang V Trustee shall pay such
compensation and expenses to the Trustee.
Article 6
Termination
This Agreement and the Disbursement Trust Fund shall continue
until the Trustee shall have received instructions from the Bontang
V Trustee to terminate the Disbursement Trust Fund. Upon receipt
of such instructions, the Trustee shall forthwith convert to cash
any investments then held by it and promptly pay over to the
parties specified in such instructions such cash proceeds plus any
other amounts then held in the Disbursement Trust Fund, less any
amounts payable to the Trustee under Sections 5.2 and 7.3 hereof.
Article 7
General Provisions
7.1 Amendment. This Agreement may not be revoked, amended,
modified, varied or supplemented except by a written instrument
duly executed by the Trustee and the Bontang V Trustee.
7.2 Enforcement. Enforcement of any provision of this
Agreement shall not be affected by any previous waiver or course of
dealing.
7.3 Indemnification. The Bontang V Trustee shall indemnify
the Trustee and all Depositaries and Escrow Agents for, and hold
each of them harmless against, any loss, liability, claim,
judgment, settlement, compromise or reasonable expense incurred or
suffered without gross negligence or willful misconduct on the part
of the Trustee or any Depositary or Escrow Agent, arising out of or
in connection with its entering into this Agreement and carrying
out its duties or exercising its rights hereunder.
7.4 Claims against Trustee. If any person shall claim
compensation for any damage sustained by reason of the failure to
perform, or the breach of, any provision of this Agreement, such
person shall, within 30 days after sustaining such damage or
acquiring knowledge of such event or failure or breach of
performance, make a written statement to the breaching person of
the nature of the damage sustained and the details and amount
thereof. Should such person fail to make the statements required
hereunder within the 30-day period, its claim for such compensation
shall be deemed to be forfeited and waived and upon expiration of
the 30-day period such claim for damages shall be invalidated.
7.5 Incumbency Certificates. The Bontang V Trustee shall
furnish the Trustee and all Depositaries and Escrow Agents from
time to time with duly executed incumbency certificates showing the
names, titles and specimen signatures of the persons authorized on
behalf of the Bontang V Trustee to take the actions and give the
notifications, approvals and instructions required by this
Agreement.
7.6 Notices. All notices, approvals, instructions, and other
communications for purposes of this Agreement shall be in writing,
which shall include transmission by telex or telecopier. All
communications given by telex or telecopier shall be directed as
set forth below, provided that if any communication is received by
the Trustee from a telex or telecopy number other than those set
forth below, its responses thereto may be directed to the number
from which such communication was received:
A. To the Bontang V Trustee at the following mail,
telex and telecopier addresses:
BankAmerica International
1 World Trade Center, 9th Floor
New York, New York 10048
Attn: Vice President-Manager, ITB
Telex: 62-944
Answerback: BOA UW
Telecopier No.: (212) 390-2249
B. To the Trustee at the following mail, telex and
telecopier addresses:
BankAmerica International
1 World Trade Center, 9th Floor
New York, New York 10048
Attn: Vice President-Manager, ITB
Telex: 62-944
Answerback: BOA UW
Telecopier No.: (212) 390-2249
Any party hereto may designate additional addresses for
particular communications as required from time to time, and may
change any address, by notice given 10 days in advance of such
additions or changes. Immediately upon receiving communications by
telex or telecopier, a party may request a repeat transmittal of
the entire communication or confirmation of particular matters.
7.7 DISPUTES. ALL DISPUTES ARISING BETWEEN THE PARTIES
RELATING TO 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 7.7 SHALL BE
BINDING UPON ALL PARTIES CONCERNED.
7.8 Governing Law. This agreement 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized signatories as of
the date first above written.
BANKAMERICA INTERNATIONAL,
as Trustee and Paying Agent the Bontang V
Trustee and Paying Agent Agreement dated
as of July 1, 1995
By: /S/
Name: Vincent Chorney
Title: Attorney-in-Fact
BANKAMERICA INTERNATIONAL,
as Disbursement Trustee and Paying Agent
hereunder
By: /S/
Name: Vincent Chorney
Title: Attorney-in-Fact