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EXHIBIT 10.4
BONTANG VI
PRODUCERS AGREEMENT
by
PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA
TOTAL INDONESIE
VIRGINIA INDONESIA COMPANY
UNION TEXAS EAST KALIMANTAN LIMITED
LASMO SANGA SANGA LIMITED
VIRGINIA INTERNATIONAL COMPANY
OPICOIL HOUSTON, INC.
UNIVERSE GAS & OIL COMPANY, INC.
INDONESIA PETROLEUM, LTD.
UNOCAL INDONESIA COMPANY
in favor of
BANK OF TAIWAN
NEW YORK AGENCY
as Lead Arranger
BONTANG LNG TRAIN-H INVESTMENT CO., LTD.
as Co-Lead Arranger
THE CHASE MANHATTAN BANK
as Agent, Co-Agent and Co-Arranger
BANQUE INDOSUEZ
THE FUJI BANK, LIMITED
PROJECT FINANCE DIVISION FOR THE AMERICAS
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
NEW YORK BRANCH
as Co-Agents and Co-Arrangers
CHANG HWA COMMERCIAL BANK, LTD.
NEW YORK BRANCH
FIRST COMMERCIAL BANK
NEW YORK AGENCY
HUA NAN COMMERCIAL BANK, LTD.
LOS ANGELES BRANCH
THE TOKAI BANK, LTD.
NEW YORK BRANCH
as Co-Arrangers
and
the Lenders named herein
__________________________________
Dated as of March 4, 1997
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TABLE OF CONTENTS
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PART 1 PRODUCERS' AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1 Authorization of Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.2 Approval of Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Rights to Bontang Plant and Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 No Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.5 Compliance with Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.6 Enforcement of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.7 Operation of Bontang Plant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.8 Replacement of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.9 Indebtedness; Permitted Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.10 Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.12 Reserve Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.13 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.14 Construction of Train H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.15 Notices Relating to Source of Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1.16 Effect of Certain Events with Respect to LNG Sales Contracts . . . . . . . . . . . . . . . . . . 15
1.17 Payment Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.18 Monitoring Total Project Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.19 Debt Service Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.20 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.21 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
PART 2 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.1 Due Incorporation; Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.2 Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.3 Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.4 Registrations and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.5 Agreement Binding; No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.6 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.7 Compliance with Other Instruments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.8 Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.9 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.10 No Encumbrance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.11 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(i)
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PART 3 DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Default Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.2 Remedy for Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.3 Diversion and Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.4 Liability Share Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
PART 4 INSURED LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.1 Effect of Total Loss of Additional Plant or Other Facilities Prior to Operational Acceptance . . 26
4.2 Effect of Total Loss of Insured Bontang Plant . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.3 Insurance Shortfall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.4 Other Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
PART 5 SCOPE OF PRODUCERS' LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
PART 6 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.2 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.3 Assignment; Successors and Assigns; Participations . . . . . . . . . . . . . . . . . . . . . . . 31
6.4 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.6 Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.8 Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.10 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.11 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Schedule 1 Liability Share Percentages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
(ii)
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BONTANG VI
PRODUCERS AGREEMENT
Dated as of
March 4, 1997
Bank of Taiwan, New York Agency, as Lead Arranger, Bontang LNG Train-H
Investment Co., Ltd., as Co-Lead Arranger, The Chase Manhattan Bank, as Agent,
Co-Agent, and Co-Arranger, Banque Indosuez, The Fuji Bank, Limited, Project
Finance Division for the Americas, and The Long-Term Credit Bank of Japan,
Limited, New York Branch, as Co-Agents and Co- Arrangers, Chang Hwa Commercial
Bank, Ltd., New York Branch, First Commercial Bank, New York Agency, Hua Nan
Commercial Bank, Ltd., Los Angeles Branch, and The Tokai Bank, Ltd., New York
Branch, as Co-Arrangers, and the Lenders named on the signature pages hereto.
Dear Sirs:
Each of the undersigned Producers confirms that it has
authorized and requested the Trustee to enter into the Loan Agreement. In
connection therewith, the undersigned Producers hereby confirm for your benefit
and for the benefit of the other parties to such Loan Agreement executing this
Agreement, any permitted successor or successors to your or their interests
thereunder, and the holders of the Notes referred to in such Loan Agreement the
matters set forth below.
* * * * *
As used above and below in this Agreement, the following
capitalized expressions shall have the meanings set forth below, such meanings
to be applicable to both the singular and plural forms of such expressions.
"Affected Facilities" has the meaning set forth in Section
4.4 hereof.
"Approved Institutions" means the United States
headquarters or a United States branch of the following financial institutions:
(i) any branch or affiliate of Bank of America National Trust and Savings
Association with the power to act as
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Trustee or (ii) any other bank, trust company or financial institution (in each
case with trust powers) which (1) has a net worth in excess of $100,000,000.00
or (2) 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.
"Bontang Excess Sales Trust Agreement" has the meaning set
forth in Article 1 of the Trust Agreement.
"Bontang Excess Sales Trustee" has the meaning set forth in
Article 1 of the Trust Agreement.
"Bontang III Trust Agreement" has the meaning set forth in
Article 1 of the Trust Agreement.
"Bontang III Trustee" has the meaning set forth in Article
1 of the Trust Agreement.
"Bontang VI Payment Account" has the meaning set forth in
Article 1 of the Trust Agreement.
"Default" has the meaning set forth in Section 3.1 hereof.
"Default Shortfall" has the meaning set forth in Section
3.2 hereof.
"Diversion" has the meaning set forth in Section 3.3
hereof.
"Diversion Shortfall" has the meaning set forth in Section
3.3 hereof.
"Engineering Firm" means Merlin Associates, Inc.
"EPC Contractor" means P.T. Inti Karya Persada Tehnik, as
contractor under the EPC Contract.
"Gas Supply Area" has the meaning set forth in Section
1.12(a) hereof.
"Inpex" means Indonesia Petroleum, Ltd.
"Insurance Shortfall" has the meaning set forth in Section
4.3 hereof.
"Liability Share" has the meaning set forth in Section 3.4
hereof.
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"Loan Agreement" means the Bontang VI Loan Agreement, dated
as of the date hereof, among the Trustee, as borrower thereunder, the
Arrangers, the Lenders, the Agent, and the Co-Agents parties thereto, as
modified or amended from time to time.
"Lost Facilities" has the meaning set forth in Section 4.1
hereof.
"Other Transportation Agreement" means each contract of the
type referred to in Section 5.3(a)(i)(y) of the Loan Agreement.
"Plant Insurance" has the meaning set forth in Section
1.11(b) hereof.
"Plant Insurance Proceeds" has the meaning set forth in
Section 1.11(b) hereof.
"Production Sharing Contracts" has the meaning set forth in
Article 1 of the Trust Agreement.
"Regular Reserve Account" has the meaning set forth in
Article 1 of the Trust Agreement.
"Sub-Contractor" means Kellogg Overseas Corporation, as
subcontractor under the EPC Contract.
"Total Group" has the meaning set forth in Article 1 of the
Trust Agreement.
"Total" means Total Indonesie.
"Train G Additional Plant" means the Additional Plant, as
such term is defined in the Bontang V Loan Agreement dated as of July 1, 1995
among the Bontang V Trustee (as defined in the Trust Agreement), as borrower
thereunder, and the Lenders, Agents and Arrangers named therein, as amended or
modified from time to time.
"Trustee" means Bank of America National Trust and Savings
Association as Bontang VI Trustee under the Trust Agreement, and its successors
thereunder pursuant to Section 1.8 hereof.
"Unocal Group" has the meaning set forth in Article 1 of
the Trust Agreement.
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"VICO Group" has the meaning set forth in Article 1 of the
Trust Agreement.
In addition to the definitions set forth above, and except
as otherwise provided in this Agreement, capitalized expressions which are
defined in the Loan Agreement are used herein with the meanings defined in the
Loan Agreement (including any such definitions incorporated by reference to the
Trust Agreement), unless the context shall otherwise specifically require.
* * * * *
PART 1
PRODUCERS' AGREEMENTS
Each of the Producers covenants to the Lenders solely as to
itself until payment in full of the principal of and interest on the Notes and
payment in full of all amounts owing under the Loan Agreement and the Letter
Agreement at the time of such payment in full of such Notes, unless compliance
with the provisions of this Part 1 shall have been waived by the Majority
Lenders, to do and perform the following:
1.1 Authorization of Borrowings. Each of the Producers
has reviewed the Loan Agreement (including the form of Notes attached thereto)
and the Letter Agreement, and has authorized and requested the Borrower to
enter into the Loan Agreement and the Letter Agreement and to execute and
deliver the Notes, in each case, not in its individual capacity but solely as
Trustee under the Trust Agreement, to make and repay Borrowings, to pay
interest on the Borrowings, to pay other amounts and to perform the other
obligations of the Borrower, all of the foregoing under and in accordance with
the terms of the Loan Agreement, the Notes and the Letter Agreement. For
purposes of effecting each Borrowing, each Producer other than Pertamina hereby
irrevocably authorizes and designates Pertamina as its agent with full power
and authority on behalf of such Producer to authorize and request the Borrower
to effect such Borrowing or to designate an entity and individuals in
accordance with the Trust Agreement to do the same, or both. Pertamina hereby
accepts such authorization and agrees to perform on behalf of the Producers
(including on its own behalf) the obligations authorized pursuant to, and
accepts the designation contained in, this Section 1.1 and in the Trust
Agreement.
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1.2 Approval of Expenditures. The Producers confirm that
in accordance with Article 10 of the Processing Agreement they have made
arrangements among themselves whereby, and the Producers hereby covenant to the
Lenders that, all invoices of all project creditors shall be approved or
disapproved in good faith in accordance with objective standards customarily
followed in the oil and gas industry in construction activities of the sort
contemplated by the Development Plan.
1.3 Rights to Bontang Plant and Improvements. The
Producers agree that Pertamina shall exclusively hold and shall continue to
maintain title to the Bontang Plant, and all rights and interests in and to the
Bontang Plant, subject with respect to Pertamina's rights and interests to
rights and interests created under the Basic Agreements and any rights and
interests created in other parties which do not adversely affect the processing
of LNG thereat in the amounts and in the manner contemplated by the Processing
Agreement for sale under the LNG Sales Contracts, and Pertamina agrees that it
will not create, incur or suffer to exist any Encumbrances on the Bontang
Plant, except for Encumbrances arising pursuant to statute or otherwise by
operation of law, which shall be discharged in the ordinary course of business
and shall not be enforced by attachment or levy.
1.4 No Amendments, etc. Each of the Producers agrees:
(a) with respect to the Trust Agreement, such
Producer shall not (i) terminate or revoke the Trust Agreement, or (ii) amend,
modify, revise, supplement or waive any of the provisions of Article 1, 4 or 10
or Section 2.1, 2.2, 2.4, 3.1, 3.2, 3.3, 3.4 (other than Section 3.4(e)), 3.5,
3.7 or 3.9 or the third sentence of Section 8.2 of the Trust Agreement, in each
case other than to permit the Borrower to enter into Subordinated Indebtedness
or Pari Passu Swap Indebtedness as permitted by the Loan Agreement, or any
other provision of the Trust Agreement, if any such amendment, modification,
revision, supplement or waiver would or would be likely to have an adverse
effect on the trust created under the Trust Agreement, the rights of the
Lenders under the Loan Agreement or Notes or the ability of the Borrower to
perform its obligations under such Loan Agreement, Notes or the Letter
Agreement, or (iii) change or agree to the change of the trustee thereunder,
except as contemplated by Section 1.8 hereof;
(b) with respect to each Basic Agreement, each
Production Sharing Contract, the EPC Contract, the Transportation Agreement and
any Other Transportation Agreement to which it is a party, such Producer shall
not (i) terminate or revoke such Basic Agreement, Production Sharing Contract,
EPC Contract, Transportation Agreement or Other Transportation Agreement
(except that any such Other Transportation Agreement that provides for
provisional transportation arrangements may be terminated or revoked when such
provisional arrangements are
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no longer required) or (ii) amend, modify, revise, supplement or waive any of
the provisions of such Basic Agreement, Production Sharing Contract, EPC
Contract, Transportation Agreement or Other Transportation Agreement (x) if any
such amendment, modification, revision, supplement or waiver would or would be
likely to, after giving effect thereto, (A) cause the Debt Coverage Ratio under
the Loan Agreement at any time that amounts are outstanding thereunder to be
less than 150%, (B) conflict with or have an adverse effect on (I) the rights
of the Lenders under the Loan Agreement, Notes or the Letter Agreement or (II)
the obligations of the Borrower under the Loan Agreement, Notes, the Letter
Agreement or Trust Agreement, (C) conflict with or impair the obligations of
the Producers under this Agreement (other than an assignment permitted pursuant
to Section 6.3 hereof) or (D) result in an Event of Default; or (y) if the Debt
Coverage Ratio already is, at the relevant time, less than 150% and if any such
amendment, modification, revision, supplement or waiver would or would be
likely to, after giving effect thereto, cause the Debt Coverage Ratio to be
reduced further;
(c) with respect to each LNG Sales Contract,
Pertamina shall not consent to the assignment or delegation by any Buyer
thereunder of any of such Buyer's rights or obligations thereunder; and
(d) with respect to the EPC Contract, Pertamina
shall not consent to the assignment or delegation of any of the rights or
obligations of the EPC Contractor or the Sub-Contractor other than (i) a
delegation by the EPC Contractor to the Sub-Contractor in accordance with the
EPC Contract or (ii) a delegation to subcontractors, and use of suppliers, in
the ordinary course of construction implementation.
Any consent of the Majority Lenders necessary to permit any
action otherwise prohibited by this Section 1.4 shall not be unreasonably
withheld. Each of the Producers shall promptly provide or cause to be provided
to the Agent, whether or not requiring consent of the Lenders pursuant to this
Section 1.4, correct and complete copies of any agreement or document
evidencing any amendment, modification, revision, supplement or waiver of any
provision of the Trust Agreement, any of the Basic Agreements to which it is a
party, the EPC Contract if it is a party thereto (excluding change orders and
similar modifications or supplements arising in the ordinary course of
construction implementation), any Production Sharing Contract to which it is a
party, or, in the case of the Pertamina, the Transportation Agreement and any
Other Transportation Agreement and, in the case of an amendment to the Trust
Agreement providing for Subordinated Indebtedness or Pari Passu Swap
Indebtedness with respect to amounts to be held and distributed under the Trust
Agreement, copies of the proposed amendment not less than 10 Business Days
prior to execution thereof.
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1.5 Compliance with Agreements.
(a) Each of the Producers agrees that it will
duly perform in a timely manner each obligation contemplated to be performed by
it under this Agreement and the Trust Agreement, including, without limitation,
(i) giving notices, instructions, certificates (including, without limitation,
certificates as to the accuracy of the representations and warranties set forth
in this Agreement and the compliance by the Producers with the terms of this
Agreement), approvals and communications necessary or appropriate in order (x)
to effect Borrowings, repayments and payments by the Trustee as Borrower under
and in accordance with the terms of the Loan Agreement, the Notes and the
Letter Agreement and (y) to permit the Borrower to perform its other
obligations under the Loan Agreement, (ii) providing financial and other
information to the Trustee to be supplied to the Lenders under and in
accordance with the Loan Agreement, and (iii) giving of other notices,
instructions, approvals and communications contemplated by the Trust Agreement.
(b) Each of the Producers that is a party thereto
also agrees duly to perform its obligations under the EPC Contract, the
Production Sharing Contracts, the Supply Agreements, the LNG Sales Contracts,
the Transportation Agreement, any Other Transportation Agreement and any other
transportation agreements and agreements to pay for shipping of cargoes under
either LNG Sales Contract, except in respects which are not material and not
likely to give rise to the assertion of a claim for breach thereunder, and to
perform in all material respects the terms of the other Basic Agreements to
which it is a party, as the same may be modified or amended from time to time
as permitted by Section 1.4 hereof.
1.6 Enforcement of Agreements. The Producers agree that,
if the Borrower shall fail to perform any of its obligations under the Trust
Agreement, then the Producers shall give written notice to the Borrower as
promptly as practical under the circumstances demanding that all of the
Borrower's obligations under the Trust Agreement be immediately performed and
simultaneously deliver a copy of such notice to the Agent. Each Producer shall
promptly enforce all legal rights it possesses against the Borrower to compel
performance by the Borrower of its obligations under the Trust Agreement, and
give notices from time to time to the Agent with respect to the actions being
taken. Each of the Producers that is a party thereto shall, with due diligence
and in a reasonable and prudent manner, enforce its rights (a) under the EPC
Contract against the EPC Contractor, the Sub-Contractor and any other
sub-contractors under the EPC Contract, (b) under the LNG Sales Contracts, (c)
under the Plant Use Agreement, (d) under the Processing Agreement and (e) the
Transportation Agreement and any other transportation agreements contemplated
by Section 1.5(b) hereof.
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1.7 Operation of Bontang Plant. Each Producer that is a
shareholder of P.T. Badak shall use its best efforts, as a shareholder, to
cause P.T. Badak or any successor to P.T. Badak under the Plant Use Agreement
to operate the Bontang Plant in the manner required pursuant to the Plant Use
Agreement and to cause P.T. Badak or any successor to P.T. Badak to perform its
obligations under the Processing Agreement in the manner required under the
Processing Agreement.
1.8 Replacement of Trustees.
(a) The Producers may, solely with the prior written
consent of the Majority Lenders, appoint any Approved Institution as successor
trustee under the Trust Agreement. The Producers shall, if any of the
circumstances set forth in Section 1.8(b) hereof shall have occurred and be
continuing and if requested by the Majority Lenders, (1) appoint one of the
institutions referred to in clause (ii) of the definition of Approved
Institutions, if any of the circumstances set forth in Sections 1.8(b)(i), (ii)
and (iii)(2) hereof shall have occurred and, (2) with respect to any other
circumstance referred to in Section 1.8(b) hereof, appoint any institution
other than a branch of the Borrower referred to in such definition as successor
trustee under the Trust Agreement. Any such appointment made pursuant to this
Section 1.8(a) shall, for purposes of this Agreement, become effective upon the
written confirmation by such institution, solely in its capacity as successor
trustee under the Trust Agreement, of its assumption of the obligations of
successor trustee under such Trust Agreement and of the Borrower under the Loan
Agreement, all of the Notes and the Letter Agreement.
(b) The circumstances referred to in Section
1.8(a) hereof are as follows:
(i) The Borrower or Bank of America
National Trust and Savings Association or any successor trustee appointed
pursuant to this Section 1.8 shall:
(1) make an assignment for the
benefit of creditors; or
(2) file a petition in
bankruptcy, petition or apply to any tribunal or applicable
regulatory authority for the appointment of a custodian, receiver,
trustee or official with similar powers for it or a substantial part of
its property or assets, or commence any case or proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation or similar law or statute of any
jurisdiction, whether now or hereafter in effect; or
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(3) if there shall have been filed
any such petition or application, or any such case or proceeding shall
have been commenced against it, indicate its consent to, approval of
or acquiescence in any such petition, application, case or proceeding
or any order for relief or the appointment of a custodian, receiver,
trustee or official with similar powers or regulatory authority for it
or any substantial part of any of its properties or assets, or suffer
to exist any such case or proceeding in which an order for relief is
entered, or suffer any such custodianship, receivership, trusteeship
or jurisdiction of such similar official or regulatory authority to
continue undischarged for a period of 30 days or more; or
(4) generally be unable to or
generally fail to pay its debts as such debts become due; or
(5) have concealed, removed, or
permitted to be concealed or removed, any part of its property, with
intent to hinder, delay or defraud its creditors, or made or suffered
a transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law or shall have
suffered or permitted, while insolvent, any creditor to obtain an
Encumbrance upon any of its property through legal proceedings or
distraint which is not vacated within 30 days from the date such
Encumbrance is created; or
(6) take appropriate corporate
action required to authorize any of the foregoing; or
(ii) The Borrower or any successor
trustee appointed pursuant to this Section 1.8 shall fail to perform any of its
obligations under the Trust Agreement; or
(iii) Bank of America National Trust and
Savings Association or any person that becomes a successor trustee pursuant to
this Section 1.8 hereof, as relevant, shall:
(1) dispose of all or substantially
all of its assets; or
(2) fail to pay principal of, or
premium or interest on, any of its Indebtedness in a material amount
when due for payment, whether by acceleration or otherwise, but after
giving effect to all applicable grace and waiver periods provided for
in the agreement or instrument creating or evidencing such
Indebtedness; or
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(iv) Any suit, legal action or proceeding
or governmental investigation shall be commenced, or any Legal Requirement
shall be in effect, which questions the power, authority or capacity of the
Borrower, Bank of America National Trust and Savings Association or any
successor trustee under the Trust Agreement to enter into the Trust Agreement,
or to serve thereunder in accordance with the terms thereof or to perform any
material obligation thereunder, or in the case of the Borrower, to enter into
the Loan Agreement or to perform any material obligation thereunder.
1.9 Indebtedness; Permitted Amounts. The Producers shall
neither enter into, nor authorize or request the Borrower or any other Person
to enter into, financing agreements or otherwise create, assume or become
liable for, directly or indirectly, any Indebtedness pursuant to any agreement
that will charge or be paid out of (x) the Source of Debt Service received by
the Trustee prior to its deposit in the Bontang VI Payment Account, except for
(i) all obligations and liabilities under the Loan Agreement, the Notes and the
Letter Agreement, (ii) any Subordinated Indebtedness incurred pursuant to
Section 6.4 of the Loan Agreement and (iii) obligations in respect of Pari
Passu Swap Indebtedness incurred pursuant to Section 6.4 of the Loan Agreement,
or (y) any Borrowed Amounts, except for the purposes for which such Borrowed
Amounts are borrowed.
1.10 Negative Pledge. The Producers shall not create or
agree to, or authorize or request the Borrower or any other Person to create or
agree to, any Encumbrance on the Source of Debt Service prior to its deposit in
the Bontang VI Payment Account or on any Borrowed Amounts, except any
Encumbrance, if any, (i) arising from the assignments made in the Supply
Agreements by Pertamina to the other Producers of the production sharing
percentages of such Producers of amounts payable by the Buyers under the LNG
Sales Contracts and certain other amounts as provided in the Supply Agreements,
(ii) arising pursuant to the Trust Agreement or in favor of the holders of
Indebtedness as permitted in accordance with Section 1.9 hereof, or (iii)
arising pursuant to statute or otherwise by operation of law in connection with
the Transportation Agreement or any other transportation agreement related to
an LNG Sales Contract or sales of LNG pursuant to Section 1.16 hereof and
discharged in the ordinary course of business.
1.11 Insurance.
(a) Prior to operational acceptance of the
Additional Plant, the Storage Tank and the Pipeline pursuant to the EPC
Contract, Pertamina shall maintain or cause to be maintained "All Risk"
Builder's Risk Insurance as required pursuant to the EPC Contract. Prior to
completion of the Debottlenecking Project pursuant to the Development Plan,
Pertamina shall maintain or cause to be maintained
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appropriate "All Risk" Builder's Risk Insurance with respect to the work to be
performed in connection with the Debottlenecking Project.
(b) Pertamina shall maintain, or cause to be
maintained with respect to the Insured Bontang Plant, property and casualty
insurance (the "Plant Insurance") on terms at least as favorable to Pertamina
as, and having coverage substantially similar to, the policy furnished to the
Agent prior to the date hereof and in an amount which is the greater of (i) the
sum of (w) the full replacement value of the Insured Bontang Plant, together
with spare parts located within the perimeter fences thereof, and (x) the
maximum value of the inventory forming a part of the Insured Bontang Plant,
determined on the basis of an independent appraisal provided in the manner
described below in this Section 1.11(b) (if such Plant Insurance in such amount
is available on commercially reasonable terms); provided, however, that upon
completion of the Train G Additional Plant of the Bontang Plant and until such
time thereafter as a new independent appraisal of the Insured Bontang Plant is
completed, the amount determined in accordance with this clause (i) shall be
increased by the total cost of the construction, installation and completion of
such Train G Additional Plant, excluding the cost of the items excluded from
the determination of the full replacement value of the Insured Bontang Plant in
the next succeeding sentence or (ii) 125% of the sum of (y) all amounts
outstanding from time to time under the Loan Agreement, the Notes and the
Letter Agreement, plus (z) all other Indebtedness of any Person outstanding,
the holders of which, directly or indirectly, are entitled to share in the
proceeds of the Plant Insurance (the "Plant Insurance Proceeds") prior to or on
an equal and ratable basis with the Lenders (as the Lenders' rights are
determined under Section 4.2 hereof). In determining the full replacement
value of the Insured Bontang Plant pursuant to clause (i) above, the cost of
the following shall be excluded: all basic engineering and that part of the
detail engineering that may be based on existing drawings and available
specifications, all dredging work, water wells, all major excavation work and
the use of heavy earth-moving equipment, and surplus materials in excess of
five percent (5%) of required quantities. As of the date hereof, the appraisal
of the Insured Bontang Plant contemplated above shall be the appraisal dated
February 1994 prepared by RDI Consultants which has been delivered to the Agent
prior to the date hereof. Thereafter, the appraisal of the Insured Bontang
Plant contemplated above shall be the independent appraisal most recently
prepared with respect thereto, including any of the following: (1) upon the
written request of the Agent, Pertamina shall promptly cause to be prepared and
delivered to the Agent an appraisal prepared by an independent appraiser, who
shall be acceptable to the Agent in its reasonable judgment; provided, however,
that the Agent may not request Pertamina to cause any such appraisal to be
prepared and delivered more than once every five years, and (2) the Agent may
from time to time have prepared for its benefit and at the sole cost of the
Lenders an appraisal of an independent appraiser, who shall be acceptable to
the
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Producers in their reasonable judgment, and Pertamina shall, and shall cause
P.T. Badak to, cooperate reasonably in the preparation of such appraisal.
(c) All Plant Insurance shall be maintained with
(i) P.T. Tugu Pratama Indonesia, or (ii) so long as Indonesian law requires
that the relevant insurance be maintained with an Indonesian insurance company,
any Indonesian insurance company other than P.T. Tugu Pratama Indonesia
approved by the Majority Lenders, which approval shall not be unreasonably
withheld, or (iii) if Indonesian law changes to permit the relevant insurance
to be maintained with one or more non-Indonesian insurance companies, any
insurance company other than P.T. Tugu Pratama Indonesia approved by the
Majority Lenders.
(d) Pertamina agrees that all Plant Insurance
shall have Pertamina as a loss payee, and that no party other than Pertamina,
the other Producers and P.T. Badak shall be a loss payee. Pertamina agrees
that it will not create or agree to any assignment of or security interest in
the Plant Insurance Proceeds, or create any right to receive the Plant
Insurance Proceeds other than equally and ratably with, or subordinated in
right of payment to, the rights of the Lenders pursuant to this Agreement in
favor of any Person other than the loss payees under the Plant Insurance.
(e) Pertamina shall, on or before the Effective
Date, provide to the Agent a correct and complete copy of the policy or
policies of insurance required by Sections 1.11(a) and (b) hereof or other
evidence of such insurance, satisfactory to the Agent in its sole discretion
and, as promptly as practicable in the circumstances (but in no event later
than 30 days) following the issuance thereof, correct and complete copies of
each subsequent policy or policies of insurance required by Sections 1.11(a)
and (b) hereof. Pertamina shall also provide to the Agent as promptly as
practicable under the circumstances, correct and complete copies of each
amendment, modification or waiver and each notice of cancellation or
termination with respect to each policy of insurance required by Sections
1.11(a) and (b) hereof (but in no event later than 30 days following any such
amendment, modification or waiver or receipt of any such notice).
1.12 Reserve Reports.
(a) The Producers agree that, if requested by the
Agent, they will cause to be delivered to the Agent correct and complete copies
of the latest reserve report or reports and any updates, modifications or
supplements thereto covering the areas that supply gas to the Bontang Plant
(the "Gas Supply Area"), prepared by DeGolyer and MacNaughton or another
independent petroleum engineering consulting firm of recognized standing in the
petroleum industry qualified by reputation and experience in the estimating of
reserves of oil and gas in subsurface reservoirs.
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(b) Pertamina shall, before committing additional
natural gas from the Gas Supply Area for sale or other utilization, submit or
cause to be submitted to the Agent a copy of each certificate and all
supporting documentation furnished to the respective Buyer pursuant to Section
3.2(a) of the KGC Sales Contract or pursuant to Section 3.2(a) of the CPC Sales
Contract, together with a statement setting forth the calculation of the
Seller's Gas Supply Obligation (as defined in each LNG Sales Contract) and the
breakdown of such calculation by non-spot sale LNG sales contract, which
statement shall be in the form of that delivered to the Agent pursuant to
Section 5.1(a)(xvi) of the Loan Agreement.
1.13 Use of Proceeds.
(a) The proceeds of the Borrowings shall be used
solely for the payment of (i) the costs incurred or to be incurred in
connection with or otherwise relating to the design, engineering, procurement
and construction of or otherwise relating to the Additional Plant, the Other
Facilities and, in the case of Borrowings that the Drawdown Schedule
contemplates for such purpose (but solely to the extent so contemplated), the
Support Facilities, (ii) interest, fees, expenses, taxes and other amounts
payable by the Borrower pursuant to Sections 2.3, 2.6, 2.7, 3.3, 3.4(b), 6.6
and 10.6 of the Loan Agreement and (iii) funding the Reserve Account as
provided in and solely to the extent permitted by Section 2.2(b) of the Loan
Agreement.
(b) If, during the Availability Period after the
start of the Amortization Period, no further amounts of the Commitments of the
Lenders are available to be drawn by the Borrower under the Loan Agreement, and
if the proceeds of the Borrowings are insufficient to pay the costs required
for the completion of the Additional Plant and the Other Facilities as
indicated in the most recent quarterly status report delivered to the Agent
pursuant to Section 1.14(b) hereof, then, from time to time prior to the last
day of the Availability Period, the Producers may, to pay for such required
costs, instruct the Trustee to transfer to the Bontang VI Payment Account from
the amounts then held in the Regular Reserve Account, subject to Section
3.3(b)(iii) of the Trust Agreement, amounts which shall not exceed in the
aggregate the lesser of (x) the portion of the Reserve Account Borrowed Amount
that, pursuant to Section 6.1(h) of the Loan Agreement, is available to be used
to pay for such costs or (y) the amounts needed to pay for such required costs.
Any such instruction shall be provided by written notice to the Trustee and the
Agent. The Producers shall use such amounts so transferred to the Bontang VI
Payment Account solely for the purpose of paying for such required costs.
(c) If, following the first day of the
Amortization Period, the Producers shall at any time have paid the cost of a
Selected Qualified Bank retained and performing services pursuant to Section
6.6 of the Loan Agreement, then Pertamina
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may instruct the Bontang VI Trustee to transfer to the Bontang VI Payment
Account from the amounts then held in the Regular Reserve Account, subject to
the conditions contained in Section 3.3(b)(iv) of the Trust Agreement, an
amount which shall not exceed the amount so paid to such Selected Qualified
Bank. Pertamina shall give any such instruction by giving notice to the
Trustee and the Agent setting forth the amount paid to the Selected Qualified
Bank and attaching a copy of the Selected Qualified Bank's invoice relating to
the services so performed.
1.14 Construction of Train H.
(a) Pertamina shall insure that Train H is
constructed and completed with due diligence and efficiency and in conformity
with sound administrative, engineering and financial practices.
(b) Pertamina shall deliver to the Agent (i) a
quarterly status report in reasonable detail concerning construction of Train
H, such report to include, but not be limited to, the cost incurred to the end
of such quarter and an estimate of costs required for the completion and
acceptance of Train H pursuant to the Development Plan and the EPC Contract,
and (ii) such other information in respect of Train H as the Agent may
reasonably request.
(c) Pertamina shall submit or cause to be
submitted to the Agent a semi-annual report for each semi-annual period ending
on March 31 (other than March 31, 1997) and September 30, prepared by the
Engineering Firm or if the Engineering Firm becomes unacceptable to Pertamina
or to the Agent for any reason following the date hereof, any other independent
engineering firm of recognized standing in the construction industry and
acceptable to the Agent, concerning the status of the construction of Train H.
Such report shall be based upon the reports delivered pursuant to Section
1.14(b) hereof and such discussions and analysis thereof with representatives
of Pertamina, the EPC Contractor and the Sub-Contractor as the independent
engineering firm deems appropriate in order for the semi-annual report to
provide, through the end of such semi-annual period, a comparison of (i) the
physical progress of the construction of Train H with the progress scheduled
for such period and (ii) the expenditures made to achieve such physical
progress with the amounts forecast therefor.
(d) Pertamina shall not amend the Development
Plan in a manner that would result in a material increase in Pertamina's
expenditures or materially deviate from the Development Plan with regard to the
construction, completion or operation of Train H; provided, however, that
Pertamina may, to the extent necessary to comply with the provisions of Section
1.18 hereof, deviate from the Development Plan by declining to construct
specific portions of the Support Facilities.
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(e) Pertamina shall, if requested by the Agent,
permit representatives of the Agent, and designees appointed by it with the
consent of Pertamina, which consent shall not be unreasonably withheld, to
visit the site of the construction of Train H to review and examine the current
status of the construction and implementation thereof.
(f) Pertamina shall promptly after it becomes
aware of such event, give notice to the Agent of any event or occurrence that
will, or would be reasonably likely to, (i) prevent the shipment of LNG under
the KGC Sales Contract or the CPC Sales Contract from occurring during the
first calendar quarter of 2000 or (ii) prevent shipments of such LNG from
occurring on a regular basis thereafter.
1.15 Notices Relating to Source of Debt Service.
(a) Pertamina shall inform the Agent by notice
(with a copy to the Borrower) in advance of the annual and quarterly shipment
schedules, and of actual shipment information promptly after shipment, with
respect to each shipment for sale and delivery of LNG related to the Source of
Debt Service.
(b) Pertamina shall give notice to the Agent
promptly after it learns (i) of any event or occurrence, in the nature of force
majeure, and any material dispute that could reasonably be expected to affect
adversely the amount or time of receipt of the Source of Debt Service and (ii)
that any default under an LNG Sales Contract has occurred or will occur with
the giving of notice or lapse of time or both. Pertamina shall thereafter also
inform the Agent of the status of such event at reasonable intervals during the
continuance thereof.
1.16 Effect of Certain Events with Respect to LNG Sales
Contracts.
(a) If (i) an LNG Sales Contract is terminated or
(ii) any sales under an LNG Sales Contract, which if made would give rise to
Source of Debt Service, are suspended in respect of any Buyer or Buyers or an
event of "force majeure" (as such concept is defined in such LNG Sales
Contract) as to any LNG tanker or any Buyer's facilities relevant to such LNG
Sales Contract shall occur and such suspension of sales or event of force
majeure shall continue for a period of nine (9) months, Pertamina shall make
all reasonable efforts to sell any LNG originally scheduled to be sold to any
affected Buyer or Buyers pursuant to such LNG Sales Contract after the date of
termination or the end of such nine-month period, as the case may be, which
Pertamina reasonably anticipates will not be sold because of such termination,
suspension of sales or event of force majeure; provided, however, that with
respect to an event of the type specified in the foregoing clause (ii),
Pertamina shall not be obligated to enter into any replacement LNG sales
contract which
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Pertamina reasonably anticipates would (x) cause it to be unable to perform
fully its obligations under the affected LNG Sales Contract upon the cessation
of such event of force majeure or suspension of sales or (y) otherwise be in
violation of such LNG Contract; and provided further that Pertamina may, in its
sole discretion, make replacement sales during any initial period of nine
months during which sales are so suspended or during which such an event of
force majeure has occurred.
(b) Pertamina shall cause the proceeds of any
replacement sales made pursuant to Section 1.16(a) hereof to be paid to the
Trustee as if such sales had been made pursuant to the affected LNG Sales
Contract and shall authorize and request the Borrower to execute and deliver
prior to the payment of any such proceeds an agreement providing for any
amendment of the definitions of Source of Debt Service and Gross Invoice Amount
contained in the Loan Agreement and the Trust Agreement required to cause such
proceeds to be included therein.
1.17 Payment Instructions.
(a) Subject to Section 1.8 hereof, Pertamina
hereby agrees to instruct each Buyer to pay to the Trustee all amounts payable
by such Buyer to Pertamina pursuant to the LNG Sales Contracts which constitute
Source of Debt Service, and not to change such instructions or the designation
of the Trustee as the recipient of amounts which constitute the Source of Debt
Service.
(b) Subject to Section 1.8 hereof, Pertamina
agrees to deliver or to cause to be delivered to the Trustee on the date
payment is made to the Trustee pursuant to Section 1.17(a), a written statement
correctly identifying the separate portions of such payment that relate to each
component of the Gross Invoice Amount and the Source of Debt Service and
specifying by category the portion of such payment that does not constitute
Source of Debt Service. Such statement shall identify, among other things, the
portion of such payment related to (x) with respect to the KGC Sales Contract,
the Contract Sales Price (as defined in such contract) (or if such contract is
modified to provide, in whole or in part, for ex-ship delivery of LNG, the
portion of the sales price not related to transportation) and (y) with respect
to the CPC Sales Contract, the LNG Element (as defined in such contract).
(c) With respect to all other relevant Basic
Agreements, Pertamina has designated or shall designate, and agrees not to
change the designation of, the Trustee as the recipient of amounts which
constitute the Source of Debt Service payable thereunder.
(d) On or promptly following the date hereof, the
Producers shall instruct the Bontang III Trustee, the Bontang Excess Sales
Trustee and any other
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relevant trustee in writing to make immediate payment to the Bontang VI Trustee
of any amounts received by any of such trustees and deposited under the Bontang
III Trust Agreement, the Bontang Excess Sales Trust Agreement or any other
relevant trust agreement or trustee and paying agent agreement which constitute
Source of Debt Service as defined in the Loan Agreement. The Producers shall
provide copies of such written instruction (which may be reflected in an
amendment to the relevant trust agreements or trustee and paying agent
agreements) to the Agent simultaneously with sending such instructions to the
Bontang III Trustee, the Bontang Excess Sales Trustee and any other relevant
trustee. The Producers agree that, so long as any amounts remain owing to the
Lenders under the Loan Agreement, the Notes or the Letter Agreement, such
written instruction shall not be revoked, amended or modified, except with the
prior written consent of the Majority Lenders.
1.18 Monitoring Total Project Expenditures.
(a) Pertamina hereby agrees that, during the
Availability Period, it will monitor Borrowings, interest rate(s) applicable to
the Notes and all other costs and expenditures relating to Train H on a
quarterly basis and in accordance with its customary procurement procedures, in
order to determine the extent to which the costs of specific portions of the
Support Facilities can be financed through Borrowings under the Loan Agreement
without causing the sum of (i) all reasonably anticipated costs of completing
the Additional Plant and the Other Facilities that have not already been paid
for from the proceeds of previous Advances, plus (ii) all reasonably
anticipated costs of such specific portions of the Support Facilities that
Pertamina proposes to finance through Borrowings under the Loan Agreement, plus
(iii) all reasonably anticipated future Borrowed Amounts, to exceed the then
remaining Commitments. If and to the extent that at any time the Drawdown
Schedule does not provide for the financing of the costs of any specific
portions of the Support Facilities and such costs can be so financed without
causing such sum to exceed the then remaining Commitments, and if, after
financing such costs the remaining Commitments will be sufficient to fund fully
the amounts referred to in clauses (i), (ii) and (iii) above, then Pertamina
may instruct the Borrower to revise the current Drawdown Schedule to provide
for the financing of the costs of such specific portions of the Support
Facilities through Borrowings under the Loan Agreement. If and to the extent
that at any time the costs of any specific portions of the Support Facilities
cannot be so financed as provided in the first sentence hereof, then Pertamina
shall instruct the Borrower to revise the then current Drawdown Schedule to
exclude such financing.
(b) Pertamina shall submit, or cause to be
submitted to the Agent, with reasonable promptness after the end of each
semi-annual period ending on March 31 (other than March 31, 1997) or September
30 during the Availability Period, a summary statement of its then current
estimate of the excess capacity of the Bontang
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Plant to be contractually uncommitted on January 1, 2000, excluding the LNG
Sales Contracts and the capacity of the Additional Plant.
1.19 Debt Service Accounts. Each of the Producers agrees
with respect to the Trust Agreement that, as long as moneys are held by the
Trustee in the Debt Service Account and Reserve Account, the Lenders are, to
the extent necessary for payments to be made in accordance with the terms of
the Trust Agreement of principal, interest and other amounts due under the Loan
Agreement, the Notes and the Letter Agreement, among those having a right, as
provided under Section 2.2 of the Trust Agreement, to receive disbursements
thereunder.
1.20 Expenses. To the extent that any amounts required to
be paid by the Borrower pursuant to Section 10.6(a) and, prior to the
Completion Date, Section 10.6(b), of the Loan Agreement are not paid when due,
the Producers shall, following notice from the Agent, immediately pay such
amounts or otherwise cause such amounts to be paid.
1.21 Financial Statements. Upon the request of the Agent,
from time to time, each Producer agrees to deliver to the Agent in respect of
one or more fiscal years (but no more than the three immediately prior fiscal
years) of such Producer or, where applicable, of any Person controlling such
Producer which reports its financial condition and results to the public, any
publicly available annual financial statements of such Producer or Person.
PART 2
REPRESENTATIONS AND WARRANTIES
Each Producer makes the following representations and
warranties to the Lenders solely with respect to itself; provided, however,
that (i) each representation and warranty with respect to any agreement that is
dated on, as of or prior to the date hereof is made as of the date hereof, (ii)
each representation and warranty with respect to any other agreement will be
made as of the date such agreement is entered into and solely with respect to
the agreement being entered into as of such date, (iii) each representation and
warranty with respect to any agreement is made only by those Producers that are
parties thereto and (iv) Pertamina is the only Producer making the
representation and warranty in Section 2.9 hereof:
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2.1 Due Incorporation; Power and Authority. Such
Producer is a corporation or partnership duly organized and validly existing
under the laws of the jurisdiction of its incorporation or formation. Such
Producer has, and upon the due execution and delivery of any such agreement
not heretofore executed and delivered will have, full power, authority and
legal right to execute, deliver, perform and observe the terms and provisions
of this Agreement, the Trust Agreement, each Production Sharing Contract, the
EPC Contract, the Transportation Agreement, any Other Transportation Agreement
and each Basic Agreement.
2.2 Legal Action. All necessary legal action has been
taken, and upon the due execution and delivery of any such agreement not
heretofore executed and delivered will have been taken, to authorize such
Producer to execute and deliver and to perform and observe the terms and
provisions of this Agreement, the Trust Agreement, each Production Sharing
Contract, the EPC Contract, the Transportation Agreement, any Other
Transportation Agreement and each Basic Agreement.
2.3 Restrictions. There is no Legal Requirement and no
contractual or other obligation binding on such Producer, and upon the due
execution and delivery of any such agreement not heretofore executed and
delivered there will be no Legal Requirement and no contractual or other
obligation binding on such Producer, including, without limitation, under any
of the Basic Agreements or the Production Sharing Contracts or the EPC
Contract, the Transportation Agreement or any Other Transportation Agreement,
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 or the performance or observance by such Producer of
any of the terms or provisions of this Agreement or the Trust Agreement.
2.4 Registrations and Approvals. No registrations,
declarations or filings with, or consents, licenses, approvals or
authorizations of, any legislative body, governmental department or government
authority are necessary or required under any applicable law for the due
execution and delivery by such Producer, or for the performance by such
Producer, of this Agreement or the Trust Agreement, or to assure the validity
or enforcement hereof or thereof with respect to such Producer, except such as
have been obtained, copies of which have been provided to the Agent in
connection with the execution and delivery of this Agreement and which remain
in full force and effect.
2.5 Agreement Binding; No Defaults. This Agreement, the
Trust Agreement, each Production Sharing Contract and each Basic Agreement
constitute, and when duly executed and delivered, the EPC Contract, the
Transportation Agreement and each Other Transportation Agreement will
constitute, the legal, valid and binding obligations of such Producer
enforceable against it in accordance with each
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of 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. No Default by such Producer has occurred and is
continuing and no event has occurred or failed to occur in each case pertaining
to such Producer, the occurrence or non-occurrence of which with the giving of
notice or lapse of time or both would constitute a Default. Such Producer is
not, and upon the due execution and delivery of each of the Transportation
Agreement and each Other Transportation Agreement will not be, in violation of
any of such Producer's obligations under (i) the Trust Agreement, (ii) any of
the Production Sharing Contracts, the Supply Agreements, or the LNG Sales
Contracts, except for violations which are not material and are not likely to
give rise to the assertion of a claim for breach, (iii) any of the Basic
Agreements (other than those referred to in the immediately preceding clause
(ii)) or the EPC Contract, in any material respect. Such Producer is not, and
upon execution and delivery of the EPC Contract will not be, in violation of
any of the Producer's obligations under (i) the Trust Agreement, (ii) any of
the Production Sharing Contracts, the Supply Agreements or the LNG Sales
Contracts, except for violations which are not material and are not likely to
give rise to the assertion of a claim for breach, (iii) any of the Basic
Agreements (other than those referred to in the immediately preceding clause
(ii)), in any material respect. Each of the Production Sharing Contracts, the
Plant Use Agreement and the Processing Agreement either does not by its terms
terminate, or is not by its terms scheduled to expire, prior to the time of
shipment of the last cargo giving rise to Source of Debt Service under either
of the LNG Sales Contracts (except in the case of those Production Sharing
Contracts that are scheduled so to expire as provided in the relevant portion
of the definition of Production Sharing Contracts set forth in the Trust
Agreement), the Transportation Agreement, when executed and delivered will not
by its terms terminate or will not by its terms be scheduled to expire prior to
the time of shipment of the last cargo giving rise to Source of Debt Service
under the CPC Sales Contract, and each Supply Agreement either does not by its
terms terminate, or is not by its terms scheduled to expire, prior to the time
of shipment of the last cargo giving rise to Source of Debt Service under the
LNG Sales Contract to which such Supply Agreement relates.
2.6 Litigation. There is no suit, action, proceeding or
investigation pending against such Producer or, to the best of such Producer's
knowledge, threatened against such Producer, which (a) questions the validity
of this Agreement, the Trust Agreement, the EPC Contract, any Production
Sharing Contract, the Transportation Agreement or any Basic Agreement, or any
material action taken or to be taken by such Producer pursuant hereto or
pursuant to any thereof, or (b) affects materially and adversely or is likely
materially and adversely to affect (i) the amounts of the Source of Debt
Service payable to the Trustee under either of the LNG Sales Contracts, or the
right of the Borrower to receive any such amounts under the Loan Agreement,
(ii) the
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Bontang Plant or Pertamina's interests therein or (iii) such Producer's ability
to perform its obligations under this Agreement, the Trust Agreement, the EPC
Contract, any Production Sharing Contract, the Transportation Agreement or any
Basic Agreement.
2.7 Compliance with Other Instruments, etc. Such
Producer is not, and upon the due execution and delivery of each of the EPC
Contract, the Transportation Agreement and any Other Transportation Agreement
will not be, in violation of any term of its charter or by-laws or, as
relevant, the partnership agreement under which such Producer is formed, or any
term of any agreement or any instrument to which it is a party or by which it
or any of its properties is bound or any Legal Requirement, which violation
would have a material adverse effect on such Producer's ability to perform its
obligations under this Agreement, the Trust Agreement, any Production Sharing
Contract, the EPC Contract, the Transportation Agreement, any Other
Transportation Agreement or any Basic Agreement.
2.8 Other Agreements. The Agent has been provided with
correct and complete copies of the Development Plan and the Basic Agreements,
in each case as amended and in effect on the date hereof. The copies of the
EPC Contract (excluding the materials referred to in Exhibit A of the agreement
referred to in clause (i) of the definition of the EPC Contract), the
Transportation Agreement and each Other Transportation Agreement provided to
the Agent upon execution and delivery thereof will be correct and complete
copies of such agreements, in each case as amended and in effect on the date
thereof. Each Producer represents and warrants that, to the best of its
knowledge, no party to any of such Production Sharing Contracts or the Basic
Agreements, other than any other Producer, is, and upon the due execution and
delivery of each of the EPC Contract, the Transportation Agreement and each
Other Transportation Agreement no party to each such agreement will be, in
breach of any material obligation thereunder.
2.9 Insurance. As of the Effective Date, insurance
coverage of the type required by Section 1.11 hereof will be in full force and
effect, no default or breach shall exist thereunder which would give rise to a
right to cancel the same, and no notice of default or breach or notice of
termination shall have been given to Pertamina with respect thereto. On or
prior to the Effective Date, correct and complete copies of such insurance
policies or other evidence of such insurance will be delivered to the Agent.
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2.10 No Encumbrance. There is no Encumbrance on the
Source of Debt Service prior to its deposit in the Bontang VI Payment Account
caused by such Producer, for which such Producer is responsible or which
relates to such Producer, except Encumbrances, if any, (i) arising pursuant to
statute or otherwise by operation of law, and not pursuant to any agreement,
which are not being enforced by attachment or levy and which will be discharged
in the ordinary course of business or (ii) permitted by Section 1.10 hereof.
2.11 No Material Adverse Change. With respect to each
Producer, there has been no material adverse change since the date of the
financial statements delivered by such Producer to the Lead Arranger on or
prior to the Effective Date in (i) the business, assets, financial position or
results of operation of such Producer 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 Contracts or (ii) the operation of the Bontang Plant.
PART 3
DEFAULTS
3.1 Default Defined. Each of the Producers agrees with
the Lenders that if any one or more of the following events shall occur it
shall be, so long as the same shall continue, a default hereunder (a
"Default"):
(a) a failure to comply with any of the
provisions of Section 1.1, 1.3, 1.4, 1.9, 1.10, 1.11, 1.17 (other than
1.17(b)), 1.19 or 6.3 hereof; or
(b) a failure to comply with any of the
provisions of Section 1.5, 1.6, 1.7, 1.14(f), 1.15(b), 1.16, 1.17(b), 1.18(a)
or 3.5 hereof for seven days after written notice of such failure shall have
been given to the Producers by the Agent; or
(c) a failure to comply with any of the
provisions of Part 1 hereof other than those referred to in Sections 3.1(a) and
(b) hereof for 30 days after written notice of such failure shall have been
given to the Producers by the Agent; or
(d) any representation or warranty made by any
Producer in this Agreement (including the representations contained in the
first paragraph following "Dear Sirs:" at the beginning of this Agreement)
shall prove to have been incorrect or misleading in any material respect as of
the date when made or deemed made; or
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(e) (i) failure by any of the Producers to
pay principal of, or premium or interest on, any of its Indebtedness in an
amount which is material in the context of this Agreement when due for payment,
whether by acceleration or otherwise, but after giving effect to all applicable
grace and waiver periods provided for in the agreement or instrument creating
or evidencing such Indebtedness; or
(ii) any of the Producers shall:
(1) make an assignment for the
benefit of creditors; or
(2) file a petition in bankruptcy,
petition or apply to any tribunal or applicable regulatory or
governmental authority for the appointment of a custodian, receiver,
trustee or official with similar powers for it or a substantial part
of its property or assets, or commence any case or proceeding under
any bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation or similar law or statute of any
jurisdiction, whether now or hereafter in effect; or
(3) if any such petition or
application shall have been filed, or any such case or proceeding
shall have been commenced against it, indicate its consent to,
approval of or acquiescence in any such petition, application, case or
proceeding or the appointment of a custodian, receiver, trustee or
official with similar powers or regulatory or other governmental
authority for it or any substantial part of its properties or assets,
or suffer to exist any such case or proceeding in which an order for
relief is entered, or suffer any such custodianship, receivership,
trusteeship or jurisdiction of such official or regulatory or
governmental authority to continue undischarged for a period of 60
days or more; or
(4) generally be unable to or
generally fail to pay its debts as such debts become due; or
(iii) a failure by P.T. Badak to comply
with a material term or provision of the Plant Use Agreement or the Processing
Agreement;
provided, however, that the effect of the occurrence of any of the events or
circumstances referred to in this clause (e) is to affect, materially and
adversely, the performance by Pertamina of its obligations under either of the
LNG Sales Contracts or the ability of Pertamina to perform such obligations; or
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(f) any statement furnished to the Agent under
any of Section 5.2(c) or 6.1 of the Loan Agreement with respect to the Debt
Coverage Ratio, the Gross Invoice Amount or the Source of Debt Service, as of
the date of such statement, (i) was not prepared based on information
concerning amounts outstanding under the Loan Agreement or the Notes which was
complete and accurate in all material respects or information concerning
amounts of the Gross Invoice Amount or the Source of Debt Service actually
invoiced or received which was complete and accurate in all material respects,
or (ii) was not prepared based on assumptions concerning future periods which
were established as provided in the Loan Agreement, or (iii) was delivered by
the Producers in bad faith or by the Borrower pursuant to a request or
authorization of the Producers given in bad faith.
3.2 Remedy for Default. If at any time during one or
more Interest Periods the effect of any one or more Defaults is to cause the
Source of Debt Service received by the Borrower and payable to the Lenders to
be insufficient to satisfy any payment obligation when due under the Loan
Agreement, any of the Notes or the Letter Agreement (the difference between the
amount of the Source of Debt Service received with respect to any Interest
Period by the Borrower and payable to the Lenders under the Loan Agreement, any
of the Notes or the Letter Agreement and the amount which would have been so
received and payable but for such Default or Defaults, the "Default
Shortfall"), then each of the Producers which caused or is responsible for such
Default or to which such Default relates shall be obligated to pay an aggregate
amount to the Agent for the account of the Lenders, on the dates when due
during or at the end of such Interest Period, in the manner and with the effect
of payments made by the Borrower as provided in the Loan Agreement, the
relevant Notes or the Letter Agreement, on account of its Liability Share of
the Default Shortfall, such that the net aggregate amount received from each
such Producer by the Agent for the account of the Lenders pursuant to this
Section 3.2, after deduction of all Taxes required to be deducted or withheld
from, or otherwise paid by the Lenders with respect to, such payment (but
excluding Excluded Taxes required to be so deducted, withheld or paid solely to
the extent that the amount of such Excluded Taxes does not exceed the amount of
Excluded Taxes that would have been deducted, withheld or otherwise paid by the
Lenders, if there had been no Default Shortfall, and the net amount were paid
to, and received by, the Lenders out of the Source of Debt Service), shall
equal such Producer's Liability Share of the Default Shortfall. The provisions
of this Section 3.2 shall apply to breaches of Section 1.17(b) as if such
breaches were a Default, whether or not notice of such breach is given to the
Producers by the Agent.
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3.3 Diversion and Remedy. In addition to the Defaults
provided for in Section 3.1 hereof, if the effect during one or more Interest
Periods of (i) any claim asserted by, on behalf of, or against any one or more
of the Producers or any of its or their property or any interest in any of its
or their property, or against the Source of Debt Service, including, without
limitation, claims asserted by any governmental or taxing authority, or by, or
on behalf of, any creditor, trustee in bankruptcy, custodian, receiver or
similar official or authority, or (ii) the imposition of any Taxes on amounts
payable under any of the Supply Agreements or either of the LNG Sales
Contracts, in any such case constituting Source of Debt Service, or on any
other payment or receipt of the Source of Debt Service (such a claim referred
to in clause (i) or imposition of such Tax referred to in clause (ii), a
"Diversion"), is to cause the Source of Debt Service received by the Borrower
and payable during or at the end of any Interest Period to the Lenders to be
insufficient to satisfy any payment obligation when due under the Loan
Agreement, any of the Notes or the Letter Agreement (the difference between the
amount of the Source of Debt Service received by the Borrower and payable to
the Lenders under the Loan Agreement, the relevant Notes or the Letter
Agreement and the amount which would have been so received and payable but for
such Diversion, the "Diversion Shortfall"), each of the Producers which has
caused or is responsible for such Diversion or to which such Diversion relates,
shall be obligated to pay an aggregate amount to the Agent for the account of
the Lenders, on the dates, in the manner and with the effect of payments made
by the Borrower as provided in the Loan Agreement, the relevant Notes or the
Letter Agreement, on account of its Liability Share of the Diversion Shortfall,
such that the net aggregate amount received from each such Producer by the
Agent for the account of the Lenders pursuant to this Section 3.3, after
deduction of all Taxes required to be deducted or withheld from, or otherwise
paid by the Lenders with respect to, such payment (but excluding Excluded Taxes
required to be so deducted, withheld or paid solely to the extent that the
amount of such Excluded Taxes does not exceed the amount of Excluded Taxes that
would have been deducted, withheld or otherwise paid by the Lenders if there
had been no Diversion Shortfall, and the net amount were paid to, and received
by, the Lenders), shall equal such Producer's Liability Share of the Diversion
Shortfall.
3.4 Liability Share Defined. The "Liability Share" of a
Producer which caused or is responsible for a Default or a Diversion or to
which such Default or Diversion relates which has given rise to a Default
Shortfall or a Diversion Shortfall, as the case may be, shall be with respect
to such Default Shortfall or Diversion Shortfall a percentage determined by
dividing the percentage interest of such Producer (as set forth in Schedule 1
hereto and as adjusted for changes in the Producers' Percentages as defined in
and pursuant to the Supply Agreements or the Production Sharing Percentages as
defined in the recitals thereof) by the aggregate percentage interest of all
Producers (as set forth in such Schedule 1 as so adjusted) which have caused or
which are responsible for such Default or Diversion or to which such Default
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or Diversion relates. With respect to the imposition of Taxes referred to in
Section 3.3 hereof, each Producer shall be deemed to have caused the
corresponding Diversion to the extent of its percentage interest as shown in
Schedule 1 hereto, adjusted as aforesaid. No adjustment to the Producers'
Percentages or the Production Sharing Percentages referred to in this Section
3.4 shall be effective for purposes of this Agreement until the Producers have
provided to the Agent a copy of an amended Schedule 1 which properly reflects
such adjustment. Any adjustment to the Producers' Percentages or the
Production Sharing Percentages or revision to Schedule 1 shall require the
mutual agreement of the Producers, but shall not require any consent, approval
or other action by the Agent, any Co-Agent, any Arranger, any Lender or the
Trustee.
3.5 Notices. Each Producer shall promptly, and in any
event not later than three Business Days after obtaining actual knowledge
thereof, give notice to the Agent of the occurrence of any Default or Diversion
caused by such Producer or for which it is responsible or to which it is
related or any event that, with the giving of notice or the passing of time, or
both, would constitute such a Default or Diversion.
PART 4
INSURED LOSS
4.1 Effect of Total Loss of Additional Plant or Other
Facilities Prior to Operational Acceptance. If any event occurs for which
insurance proceeds are payable by an insurance company under any insurance
policy referred to in Section 1.11(a) hereof relating to an actual total loss
or a constructive, compromised or arranged total loss (within the meaning of
such policy) of the Additional Plant or any of the Other Facilities or any
combination of the foregoing (the "Lost Facilities"), Pertamina agrees as
follows:
(a) Pertamina shall, as promptly as possible in
the circumstances following such event, notify the Agent of the occurrence of
such event and shall, within six months following such event, notify the Agent
in writing whether or not it intends to rebuild or reconstruct the Lost
Facilities.
(b) If Pertamina notifies the Agent that it does
not intend to rebuild or reconstruct the Lost Facilities, it shall promptly pay
to the Agent for the account of the Lenders such amounts as are instructed by
the Agent equal in the aggregate to the lesser of (x) the aggregate amounts
outstanding under the Loan
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Agreement, Notes and Letter Agreement and (y) the aggregate amount of such
insurance proceeds paid to Pertamina in respect of such event.
(c) If Pertamina notifies the Agent that it
intends to rebuild or reconstruct the Lost Facilities, then it shall proceed to
do so with the services of a reliable and reputable contractor, diligently and
in good faith, and shall provide the Agent with periodic written reports not
less frequently than quarterly in reasonable detail concerning the rebuilding
or reconstruction and including (i) the amount of insurance proceeds received
under such policy, (ii) the amount of funds expended to date on the rebuilding
or reconstruction, (iii) the proposed schedule for completion of the
construction work, and (iv) the progress of the construction work to date.
(d) If, at any time prior to completion,
Pertamina shall terminate the rebuilding or reconstruction of the Lost
Facilities or shall not be proceeding with such rebuilding or reconstruction
diligently and in good faith, then Pertamina shall be obligated promptly to pay
to the Agent for the account of the Lenders, such amounts as are instructed by
the Agent equal in the aggregate to the lesser of (x) the amounts outstanding
under the Loan Agreement, the Note and the Letter Agreement and (y) the
aggregate insurance proceeds which are paid to Pertamina under such policy in
respect of such event and not in good faith expended or committed to be
expended (pursuant to a commitment which cannot by its terms be avoided) on
such rebuilding or reconstruction.
4.2 Effect of Total Loss of Insured Bontang Plant. If
any event occurs for which insurance proceeds are payable by an insurance
company under any insurance policy referred to in Section 1.11(b) hereof
relating to an actual total loss or a constructive, compromised or arranged
total loss (within the meaning of such policy) of the Insured Bontang Plant,
Pertamina agrees as follows:
(a) Pertamina shall, as promptly as possible in
the circumstances following such event, notify the Agent of the occurrence of
such event and shall, within six months following such event, notify the Agent
in writing whether or not it intends to rebuild or reconstruct the Insured
Bontang Plant.
(b) If Pertamina so notifies the Agent that it
does not intend to rebuild or reconstruct the Insured Bontang Plant, it shall
promptly pay to the Agent for the account of the Lenders such amounts as are
instructed by the Agent in an aggregate amount equal to the lesser of (x) the
share referred to below of the total insurance proceeds that are paid to
Pertamina under such policy in respect of such event and (y) the aggregate
amount outstanding under the Loan Agreement, Notes and Letter Agreement after
giving effect to any payment made pursuant to Section 4.1(b) hereof.
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(c) If Pertamina notifies the Agent that it
intends to rebuild or reconstruct the Insured Bontang Plant, then it shall
proceed to do so with the services of a reliable and reputable contractor,
diligently and in good faith, applying amounts equal to the proceeds of the
insurance to the extent required, and shall provide the Agent with periodic
written reports not less frequently than quarterly in reasonable detail
concerning the rebuilding or reconstruction and including (i) the amount of
insurance proceeds received under such policy, (ii) the amount of funds
expended to date on the rebuilding or reconstruction, (iii) the proposed
schedule for completion of the construction work, and (iv) the progress of the
construction work to date.
(d) If, at any time prior to completion,
Pertamina shall terminate the rebuilding or reconstruction or shall not be
proceeding with such rebuilding or reconstruction diligently and in good faith,
then Pertamina shall be obligated promptly to pay to the Agent for the account
of the Lenders such amounts as are instructed by the Agent in an aggregate
amount equal to the lesser of (x) the share referred to below or the total
insurance proceeds that are paid to Pertamina under such policy in respect of
such event and not in good faith expended or committed to be expended (pursuant
to a commitment which cannot by its terms be avoided) on such rebuilding or
reconstruction and (y) the aggregate amounts outstanding under the Loan
Agreement, the Notes and the Letter Agreement after giving effect to any
payments made pursuant to Sections 4.1(b) and 4.2(b) hereof.
The share referred to in clauses (b) and (d) above of such
total insurance payments shall be (i) the total amount of such payments
multiplied by (ii) a fraction the numerator of which is the aggregate principal
amount of Indebtedness outstanding under the Loan Agreement, Notes and the
Letter Agreement at the time amounts are payable to the Lenders under this
Section 4.2 and the denominator of which is equal to the sum of the aggregate
principal amount of the Indebtedness outstanding under the Loan Agreement and
the aggregate principal amount of all Indebtedness of any Person outstanding at
such time, the holders of which, directly or indirectly, are entitled to share
in the Plant Insurance Proceeds prior to or on an equal and ratable basis with
the Lenders (as the Lenders' rights are determined under this Section 4.2).
4.3 Insurance Shortfall. If by reason of a failure of
Pertamina to comply with Section 1.11 hereof, the share of insurance payments
of the type referred to in Sections 4.1(b) and (d) and 4.2(b) and (d) hereof is
insufficient to pay in full all principal, interest and other amounts payable
under the Loan Agreement and the Notes and all amounts payable under the Letter
Agreement (the amount of such insufficiency, an "Insurance Shortfall"),
Pertamina shall be obligated to pay the amount of the Insurance Shortfall to
the Agent for the account of the Lenders in such amounts as are instructed by
the Agent on the dates, in the manner of and with the effect of payments made
by the Borrower as provided in the Loan Agreement, the Notes and the Letter
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Agreement, such that the net amount received by the Lenders, pursuant to this
Section 4.3, after deduction of all Taxes required to be deducted or withheld
from, or otherwise paid by the Lenders, with respect to, such payment (but
excluding Excluded Taxes required to be so deducted, withheld or otherwise paid
solely to the extent that the amount of such Excluded Taxes does not exceed the
amount of Excluded Taxes that would have been deducted, withheld or otherwise
paid by the Lenders if there had been no Insurance Shortfall, and the net
amount were paid to, and received by the Lenders out of an amount equal to such
share of insurance), shall equal the Insurance Shortfall.
4.4 Other Losses. Upon a partial loss of the Additional
Plant, any of the Other Facilities or the Insured Bontang Plant (the "Affected
Facilities"), as the case may be, or a total loss thereof with respect to which
Pertamina has not given notice pursuant to Section 4.1 or 4.2 hereof that it
intends not to rebuild and if Pertamina has not applied amounts equal to the
insurance proceeds paid to Pertamina to repayment of the Indebtedness
outstanding under the Loan Agreement, the Notes and the Letter Agreement in the
manner contemplated by Sections 4.1 and 4.2 hereof, Pertamina shall proceed to
rebuild or reconstruct the Affected Facilities with the services of a reliable
and reputable contractor, diligently and in good faith, applying amounts equal
to the proceeds of the insurance referred to in Section 1.11(a) or (b), as the
case may be, to the extent required and shall provide the Agent with the
periodic reports described in clause 4.l(c) or 4.2(c) hereof, as the case may
be, as provided in such clause.
PART 5
SCOPE OF PRODUCERS' LIABILITIES
Except as stated in Sections 3.2, 3.3, 3.4 and Part 4
hereof and then only to the limited extent specifically stated therein, 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 the Loan Agreement or the
Letter Agreement, or shall be had for any claim based on any provision of the
Notes, the Loan Agreement or the Letter Agreement, against any of the
Producers, or against any past, present or future stockholder, partner,
officer, director, employee, or agent of any of the Producers, either directly
or through the Borrower or any successor of the Borrower, or under the Trust
Agreement or under any constitution, statute or rule of law or by the
enforcement of any assessment, or otherwise, and, except as above provided, no
such Person shall have any personal obligation, liability or duty whatsoever to
any Arranger, the Agent, any Co-Agent or any of the Lenders or any holders of
the Notes or anyone else for or with respect to any such payment, the
performance of or compliance with any covenant or agreement contained in the
Loan Agreement, the Letter Agreement, the Trust
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Agreement or this Agreement or the truth, accuracy or completeness of any
statement or representation made in or pursuant to any such document.
Furthermore, the obligations of the Producers hereunder are several, and not
joint or joint and several, and there shall be no recourse to any Producer by
any Person party to the Loan Agreement or the Letter Agreement or by any holder
of a Note or otherwise for any liability of another of the Producers which may
have arisen hereunder, it being expressly agreed and understood, however, that
the failure of a Producer to perform its obligations under this Agreement shall
not relieve any other Producer of its obligations hereunder.
Each Arranger, the Agent, each Co-Agent, each Lender, each
holder of any of the Notes and each other Person relying on or purporting to
rely on the terms of this Agreement in adopting any course of action shall be
bound by the terms of this Part 5 of this Agreement to the same extent as if
its written acceptance of the terms hereof were subscribed hereto.
PART 6
MISCELLANEOUS
6.1 Notices. All notices, requests, demands or other
communications to or from the parties hereto shall be given or made by telex,
telecopier or by personal delivery in the manner provided in Section 10.1 of
the Loan Agreement. Any such notice, request, demand or communication shall be
sent in the case of each Producer to its address, telex number and answerback
or telecopier number set forth on the signature pages hereof or, where
applicable, to the designated representative of such Producer as set forth
below; or in each case with respect to any party to such other address, telex
or telecopier number as such party may designate for the purpose by written
notice to the party sending such notice, request, demand or communication.
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 at or before 5:00 p.m. on the date of delivery
in the time zone of the recipient (otherwise on the day immediately following
the date of delivery), (ii) following receipt if transmitted by mail, (iii) the
date of transmission if transmitted by telex with confirmed answerback received
at or before 5:00 p.m. on the date of transmission in the time zone of the
recipient (otherwise on the day immediately following the date of transmission)
or (iv) the date of receipt of a legible copy thereof if sent by telecopier
received at or before 5:00 p.m. on the date of transmission in the time zone of
the recipient (otherwise on the day immediately following the date of
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receipt), whichever shall first occur. Any party may change its address for
purposes hereof by notice to the other parties.
In the case of notices and other communications for members
of the VICO Group, such notices and communications shall be sent to Virginia
Indonesia Company, which is hereby designated the representative of the VICO
Group for such purpose. In the case of notices and other communications for
members of the Total Group, such notices and other communications shall be sent
to Total, which is hereby designated the representative of the Total Group for
such purpose. In the case of notices and other communications for members of
the Unocal Group, such notices and other communications shall be sent to
Unocal, which is hereby designated the representative of the Unocal Group for
such purpose; provided that once Inpex ceases to be a member of the Unocal
Group all notices and other communications shall be sent to Inpex directly. A
new or successor representative may be designated by notice to such effect
signed by all such appropriate Persons given to the Agent 10 days in advance of
any such change. Until receipt of any such notice, the Agent may rely on any
notice or other communication to the representative as being notice to each
such Person.
6.2 No Waiver; Remedies Cumulative. No failure to
exercise and no delay in exercising, on the part of any Person having rights
hereunder, 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 Part 5 hereof, the rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
6.3 Assignment; Successors and Assigns; Participations.
This Agreement shall be binding upon and inure to the benefit of the Arrangers,
the Lenders, the Agent, the Co-Agents and the holders from time to time of the
Notes and their respective successors and permitted assigns, in each case to
the extent that the provisions of the Loan Agreement and Letter Agreement inure
to the benefit of such Persons and their respective successors and permitted
assigns thereunder, and except as specifically set forth in this Section 6.3,
no Person shall have or acquire any right or benefit hereunder or in respect of
any obligation of any Producer herein contained. Except for the assignments
prior to the date hereof pursuant to the Supply Agreements by Pertamina to the
other Producers of the production sharing percentages of such Producers in
amounts payable by the Buyer under the LNG Sales Contracts and certain other
amounts as specified in the Supply Agreements, no Producer may assign any
rights or delegate any obligations hereunder or assign any rights in or to the
Source of Debt Service prior to deposit in the Bontang VI Payment Account,
without the written consent of the Majority Lenders, such consent not to be
unreasonably withheld;
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provided that if another corporation, or other entity, wholly owned by or an
agency of the Republic of Indonesia should succeed to all rights and
obligations of Pertamina under the Trust Agreement, the Transportation
Agreement, any Other Transportation Agreement and all of the Basic Agreements
to which it is a party, Pertamina may assign all of its rights and delegate all
of its obligations hereunder to such other corporation, entity or agency, such
assignment and delegation to become effective upon such Person's written
assumption (a copy of which shall be provided to the Agent and which shall
confirm the assignment of rights and the assumption of obligations by such
Person under the Trust Agreement, the LNG Sales Contracts, the Transportation
Agreement, any Other Transportation Agreement and all other Basic Agreements to
which the assignor is a party) of all of Pertamina's obligations hereunder
including, without limitation, the restrictions on assignments and delegations
contained in this Section 6.3 which shall apply to all assignees of the rights
and delegees of the obligations of Pertamina and its assignees and delegees;
and provided further that any Producer other than Pertamina may assign its
rights and delegate its obligations hereunder and assign its rights with
respect to the Source of Debt Service prior to deposit in the Bontang VI
Payment Account, to the extent of and in conjunction with the assignment of its
rights and the delegation of obligations under the Trust Agreement and the
Basic Agreements, in each case to which it is a party, such assignment and
delegation to become effective upon such Person's written assumption (a copy of
which assumption shall be provided to the Agent and which shall confirm to the
extent provided in such assignment and delegation the assignment of rights and
the assumption of obligations under the Trust Agreement and the Basic
Agreements, in each case to which the assignor is a party) of such Producer's
obligations hereunder including, without limitation, the restrictions on
assignments and delegations contained in this Section 6.3 which shall apply to
all assignees of the rights and delegees of the obligations of such Producer
and its assignees and delegees. The Producers may treat each Lender as the
holder of the Note or Notes drawn to its order and delivered to such Lender
until written notice of transfer shall have been received by them. All
agreements, representations and warranties made herein shall survive the making
of any such transfer hereunder by any Lender. Notwithstanding the foregoing,
each Lender may grant participations, in whole or in part, in its rights under
this Agreement to the extent that it may grant participations in its rights
under the Loan Agreement, Notes and Letter Agreement.
6.4 Amendments. Any provision of this Agreement 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 with appropriate
confirmed answerback, or telecopied version duly sent by the Person so amending
or waiving) by the Producers and the Majority Lenders; provided that any waiver
need only be signed by the party granting the waiver. Any such amendment or
waiver shall be signed by the Agent on behalf of the Majority Lenders if the
Agent has been so authorized in writing
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or by telex by the Majority Lenders. Any amendment or waiver or telecopied
version signed by the Agent in accordance with the preceding sentence shall be
binding upon the Lenders and any holder of a Note.
6.5 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
Pertamina.
6.6 Section Headings. The Section headings in this
Agreement are inserted for convenience of reference only and shall be ignored
in construing this Agreement.
6.7 Governing Law. This agreement shall be governed by
and construed in accordance with the laws of the State of New York, United
States of America applicable to agreements made and to be performed entirely
within such state.
6.8 Consent to Jurisdiction.
(a) Solely for purposes of this Agreement, each
Producer hereby irrevocably consents that any suit, legal action or proceeding
against it or any of its property with respect to any of the obligations
arising under this Agreement may be brought in any New York State court located
in the Borough of Manhattan, City and State of New York or any Federal Court of
the United States of America located in the Southern District of New York, as
any Lender or the Agent may elect, and by execution and delivery of this
Agreement, each Producer hereby irrevocably submits to and accepts, solely as
aforesaid, with regard to any such suit, legal action or proceeding, for itself
and in respect of its property, generally and unconditionally, the
non-exclusive personal jurisdiction of the aforesaid courts. Each Producer
hereby irrevocably designates, appoints and empowers CT Corporation System,
1633 Broadway, New York, New York 10019 as its agent to receive for and on its
behalf service of process in New York in any suit, legal action or proceeding
with respect to this Agreement. It is understood that a copy of any such
process served on such agent shall be promptly forwarded by airmail by the
person commencing such suit, legal action or proceeding to the relevant
Producer at its address set forth on the signature pages hereof, but the
failure of the relevant Producer to receive such copy shall not affect in any
way the service of such process as aforesaid. If service of process cannot be
effected in the foregoing manner, each Producer further, solely as aforesaid,
irrevocably consents to the service of process in any such suit, legal action
or proceeding by the mailing of copies thereof by registered or certified
airmail, postage prepaid, return receipt requested, to the respective Producer
at its address set forth on
33
37
the signature pages hereof. The foregoing, however, shall not limit the right
of the Lenders to serve process in any other manner permitted by law or to
bring any suit, legal action or proceeding or to obtain execution of judgment
in any other jurisdiction.
(b) Solely as aforesaid, each Producer hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any suit, legal action or proceeding arising out of or
relating to this Agreement in any court located in the Borough of Manhattan,
City and State of New York and hereby further irrevocably waives any claim it
may now or hereafter have that a court located in the Borough of Manhattan,
City and State of New York is not a convenient forum for any such suit, legal
action or proceeding. Pertamina represents and warrants that this Agreement
and its obligations made hereunder and the transactions contemplated hereby
constitute commercial rather than public or governmental acts. Each Producer
(other than Pertamina, which waives its immunity as provided below) represents
and warrants that it is not entitled to claim immunity from legal proceedings
with respect to itself or any of its property on the grounds of sovereignty or
otherwise under any law or in any jurisdiction where an action may be brought
for the enforcement of any of the obligations arising under this Agreement or
the Trust Agreement. To the extent that any Producer or any of its property or
the Source of Debt Service, prior to deposit in the Bontang VI Payment Account
has or hereafter may acquire any claim of right to immunity from set-off, legal
proceedings, attachment prior to judgment, other attachment, levy or execution
of judgments on the grounds of sovereignty or otherwise, each Producer on
behalf of itself and any successors, solely as aforesaid, hereby irrevocably
waives such claim of right to immunity for itself and its property in respect
of its obligations arising under this Agreement and the Trust Agreement and
each Producer agrees that it will not assert any such right to immunity in any
way which would impair the performance or ability of the Borrower to perform
its obligations under the Loan Agreement or any of the Notes.
6.9 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 be in any way affected or impaired.
6.10 Reinstatement. The obligations of the Producers to
make payments under this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if, at any time, a payment or any part thereof,
of any amount paid to a Lender in respect of which a Producer is obligated to
make payment hereunder is rescinded or must otherwise be restored or returned
by the Lender upon the insolvency, bankruptcy or reorganization of the Borrower
or for any other reason, all as though such payment had not been made.
34
38
6.11 Confidentiality. No copy of (a) this Agreement, the
Loan Agreement or the Trust Agreement or (b) any other agreement to which any
Producer or the Trustee is a party or any document signed or issued by or on
behalf of any such Producer, which agreement or document is identified by any
Producer to the Agent as confidential, shall, without Pertamina's consent for
the agreements referred to in clause (a), or the consent of the relevant
Producer for agreements or documents referred to in clause (b), be disclosed by
or on behalf of the Agent, any Co-Agent, any Arranger, or any Lender to any
third party, except, prior to the Effective Date, to any prospective lender in
connection with the transactions contemplated hereby pursuant to a
confidentiality undertaking in the form approved by the Producers pursuant to
that certain consent dated December 16, 1996. Notwithstanding the foregoing
and any provisions of any other confidentiality undertaking between any of the
Producers and any of the Arrangers or the Lenders to the contrary (each such
undertaking being hereby amended to the extent necessary to conform to this
Section 6.11), the agreements and documents referred to in the preceding
sentence and any information, including, without limitation, contracts,
agreements and financial data the disclosure of which is restricted by any such
other undertaking (collectively, "Information") may be disclosed (i) to any
prospective assignee of or participant in the rights of the Lenders under the
Loan Agreement, the Notes and this Agreement upon execution by such Person of a
confidentiality agreement in the form substantially similar to that approved by
the Producers pursuant to that certain consent, dated December 16, 1996 and
(ii) to the extent such Information is required to be disclosed by order or
direction of a court or tribunal of competent authority under applicable law or
by a governmental order, decree, regulation or rule and is required to be made
to any regulatory authority, bank examiner or auditor; provided that the
Arranger or the Lender gives as much prior notice as is practical in the
circumstances to allow the Producer the ability to seek a protective order or
similar remedy and, if the disclosure of the Information is required, furnishes
only such portion of the Information as it is legally compelled to disclose and
exercises reasonable efforts to obtain an order or other reliable assurance
that confidential treatment will be accorded to the disclosed Information. No
public announcement or statement or publication relating to any of the
foregoing shall be made or released by or on behalf of the Agent, any Co-Agent,
any Arranger or any Lender, without the prior written approval of the
Producers.
*****
35
39
The undersigned Producers have caused this Agreement to be
duly executed by their respective duly authorized signatories as of the date
hereof.
Jalan Medan Merdeka Timur 1A PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA
Jakarta 10110 (PERTAMINA)
Indonesia
Telex No.: 45018
Answerback: PTMJKT 1A By: /s/ F. ABADA'OE
Telecopier No.: 62-21-345-2958 ----------------------------------------------
Attention: Director of Finance Name: F. Abada'oe
Title: President, Director and
Chief Executive Officer
36
40
TOTAL INDONESIE
Plaza Kuningan Menara Utara
Lantai 9
Jl. H.R. Rasuna Said Kav. C11-14
Jakarta 12940 By: /s/ MICHEL SEGUIN
Indonesia -----------------------------------------------
Telex No.: 60980 Name: Michel Seguin
Answerback: TOTALJ IA Title: Vice-Chairman and
Telecopier No.: 62-21-252-0814 Chief Executive Officer
Attention: President and General Manager
One Houston Center VIRGINIA INDONESIA COMPANY
1221 McKinney - Suite 700
Houston, Texas 77010
U.S.A.
Telex No.: 713-166-100 By: /s/ CHARLES M. REIMER
Answerback: VICO HOU ----------------------------------------------
Telecopier No.: 713-754-6697 Name: Charles M. Reimer
Attention: Treasurer Title: Chairman and
Chief Executive Officer
c/o Union Texas International Corporation UNION TEXAS EAST KALIMANTAN LIMITED
P.O. Box 2120
Houston, Texas 77252-2120
U.S.A.
Telex No.: 775255 By: /s/ DEAN HENRY
Answerback: UNOTEX PET HOU ----------------------------------------------
Telecopier No.: 1-713-968-2771 Name: Dean Henry
Attention: President Title: Assistant Treasurer
37
41
100 Liverpool Street LASMO SANGA SANGA LIMITED
London EC2M 2BB
United Kingdom
Telex No.: 8812970
Answerback: LASMO G By: /s/ RICHARD L. SMERNOFF
Telecopier No.: 44-171-606-2893 -----------------------------------------------
Attention: Finance Director Name: Richard L. Smernoff
Title: Director and
Chief Financial Officer
100 Liverpool Street VIRGINIA INTERNATIONAL COMPANY
London EC2M 2BB
United Kingdom
Telex No.: 8812970
Answerback: LASMO G By: /s/ RICHARD L. SMERNOFF
Telecopier No.: 44-171-606-2893 -----------------------------------------------
Attention: Finance Director Name: Richard L. Smernoff
Title: Vice President
Virginia International Company
3040 Post Oak Blvd. - Suite 800 OPICOIL HOUSTON, INC.
Houston, Texas 77056
U.S.A.
Telex No.: N/A
Answerback: N/A By: /s/ ROY C.H. Chiu
Telecopier No.: 1-713-297-8108 -----------------------------------------------
Ext. 322 Name: Roy C.H. Chiu
Attention: Vice President of Finance Title: President
NYK Tennoz Building UNIVERSE GAS & OIL COMPANY, INC.
2-20, Higashi-Shinagawa 2-chome
Shinagawa-ku, Tokyo 140
Japan
Telex No.: J26268 By: /s/ TOSHIO NORIMATSU
Answerback: UGO TOK -----------------------------------------------
Telecopier No.: 81-3-5462-0679 Name: Toshio Norimatsu
Attention: General Manager of Title: General Manager of
Business Department Business Dept.
38
42
17th Floor, Ebisu Neonato, INDONESIA PETROLEUM, LTD.
No. 1-18, Ebisu 4-chome
Shibuya-ku, Tokyo 150, Japan
Telex No.: 2424210
Answerback: JAIPEX J By: /s/ YUSUKE SAWATARI
Telecopier No.: 81-3-5448-1244 ------------------------------------------------
Attention: General Manager of Gas Business Name: Yusuke Sawatari
Department Title: Managing Director and General
Manager of Accounting & Finance Dept.
Ratu Plaza Office Tower UNOCAL INDONESIA COMPANY
Jalan Jenderal Sudirman
Jakarta 10270
Indonesia
Telex No. 47335 By: /s/ TIMOTHY C. LAUER
Answerback: UNOCAL IA -----------------------------------------------
Telecopier No. 62-21-720-4499 Name: Timothy C. Lauer
Attention: President and Managing Director Title: President & Managing Director
39
43
As of the date first written above
accepted and agreed to:
Lead Arranger
-------------
BANK OF TAIWAN,
NEW YORK AGENCY
By /s/ K.C. WANG
---------------------------------
Name: K.C. WANG
Title: Senior Vice President &
General Manager
Co-Lead Arranger
----------------
BONTANG LNG TRAIN-H
INVESTMENT CO., LTD.
By /s/ YOSHIAKI KATAYAMA
---------------------------------
Name: Yoshiaki Katayama
Title: President
Agent
-----
THE CHASE MANHATTAN BANK
By /s/ DANIEL DE LANGE
---------------------------------
Name: Daniel De Lange
Title: Managing Director
40
44
Co-Agents and Co-Arrangers
--------------------------
BANQUE INDOSUEZ
By /s/ MARC L. TABOUIS
---------------------------------
Name: Marc L. Tabouis
Title: Managing Director Project
and International Finance
Department
THE CHASE MANHATTAN BANK
By /s/ DANIEL DE LANGE
----------------------------------
Name: Daniel De Lange
Title: Managing Director
THE FUJI BANK, LIMITED,
PROJECT FINANCE DIVISION FOR THE
AMERICAS
By /s/ HAJIME TANIMURA
----------------------------------
Name: Hajime Tanimura
Title: Attorney in fact
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED,
NEW YORK BRANCH
By /s/ TSUNEHIRO WATABE
---------------------------------
Name: Tsunehiro Watabe
Title: General Manager
41
45
Co-Arrangers
------------
CHANG HWA COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By /s/ WALTER W. T. YEH
---------------------------------
Name: Walter W. T. Yeh
Title: General Manager
FIRST COMMERCIAL BANK,
NEW YORK AGENCY
By /s/ VINCENT T. C. CHEN
----------------------------------
Name: Vincent T.C. Chen
Title: Vice President &
General Manager
HUA NAN COMMERCIAL BANK, LTD.,
LOS ANGELES BRANCH
By /s/ GEORGE F. K. LU
----------------------------------
Name: George F. K. Lu
Title: Vice President &
General Manager
THE TOKAI BANK, LTD.,
NEW YORK BRANCH
By /s/ SHINICHIRO MIZUNO
--------------------------------
Name: Shinichiro Mizuno
Title: General Manager,
International Finance
Division
42
46
Lenders
BANK OF TAIWAN,
NEW YORK AGENCY
By /s/ K. C. WANG
-------------------------------------
Name: K. C. Wang
Title: Senior Vice President &
General Manager
43
47
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By /s/ TETSUO SHIBATA
-------------------------------------
Name: Tetsuo Shibata
Title: Attorney In Fact
44
48
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR,
HONG KONG BRANCH
By /s/ PATRICE TENEUR
------------------------------------
Name: Patrice Teneur
Title:
45
49
BANQUE INDOSUEZ
By /s/ MARC L. TABOUIS
-------------------------------------
Name: Marc L. Tabouis
Title: Managing Director
Project and International
Finance Department
46
50
BANQUE NATIONALE DE PARIS,
SINGAPORE BRANCH
By /s/ JEAN-ALAIN ORSINI
-----------------------------
Name: Jean-Alain Orsini
Title: Attorney In Fact
47
51
BONTANG LNG TRAIN-H INVESTMENT
CO., LTD.
By /s/ YOSHIAKI KATAYAMA
-----------------------------
Name: Yoshiaki Katayama
Title: President
48
52
CHANG HWA COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By /s/ WALTER W. T. YEH
------------------------------
Name: Walter W. T. Yeh
Title: General Manager
49
53
THE CHASE MANHATTAN BANK
By /s/ MORGAN T. MCGRATH
-------------------------------------
Name: Morgan T. McGrath
Title: Managing Director
50
54
CHO HUNG BANK,
NEW YORK BRANCH
By /s/ MYONG HYUN KYONG
------------------------------------
Name: Myong Hyun Kyong
Title: Attorney In Fact
51
55
CHRISTIANIA BANK
By /s/ BJORN OSTROM
------------------------------------
Name: Bjorn Ostrom
Title: Branch Manager
Executive Vice President
By /s/ FINN AMUND NORBYE
------------------------------------
Name: Finn Amund Norbye
Title: First Vice President
52
56
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENE
By /s/ CORINNE LEGER-LICOINE
------------------------------------
Name: Corinne Leger-LiCoine
Title:
By /s/ J. SCHRIKE
------------------------------------
Name: J. SCHRIKE
Title: Vice President
53
57
THE DAI-ICHI KANGYO BANK, LIMITED,
NEW YORK BRANCH
By /s/ TAKESHI KURITA
----------------------------------
Name: Takeshi Kurita
Title: Vice President
54
58
THE FARMERS BANK OF CHINA,
LOS ANGELES BRANCH
By /s/ FRANK T. S. LIN
---------------------------------
Name: Frank T. S. Lin
Title: Vice President &
General Manager
55
59
FIRST COMMERCIAL BANK,
NEW YORK AGENCY
By /s/ VINCENT T. C. CHEN
-----------------------------------
Name: Vincent T. C. Chen
Title: Vice President &
General Manager
56
60
THE FUJI BANK, LIMITED,
PROJECT FINANCE DIVISION
FOR THE AMERICAS
By /s/ HAJIME TANIMURA
---------------------------------
Name: Hajime Tanimura
Title: Attorney In Fact
57
61
HUA NAN COMMERCIAL BANK, LTD.,
LOS ANGELES BRANCH
By /s/ GEORGE F. K. LU
------------------------------
Name: George F. K. Lu
Title: Vice President &
General Manager
58
62
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By /s/ KIYOSHI KATO
------------------------------
Name: Kiyoshi Kato
Title: Attorney In Fact
59
63
THE INTERNATIONAL COMMERCIAL
BANK OF CHINA,
NEW YORK AGENCY
By /s/ W. L. Lin
-------------------------------
Name: W. L. Lin
Title: Senior Vice President &
General Manager
60
64
KREDIETBANK N.V., NEW YORK BRANCH
By /s/ TOD R. ANGUS
-------------------------------------
Name: Tod R. Angus
Title:
By /s/ JEAN GLASGOW
-------------------------------------
Name: Jean Glasgow
Title: Assistant Vice President
61
65
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED,
NEW YORK BRANCH
By /s/ TSUNEHIRO WATABE
---------------------------------
Name: Tsunehiro Watabe
Title: General Manager
62
66
THE MITSUBISHI TRUST AND BANKING
CORPORATION, NEW YORK BRANCH
By /s/ TAKASHI MASUYAMA
----------------------------------
Name: Takashi Masuyama
Title: Attorney In Fact
63
67
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED,
NEW YORK BRANCH
By /s/ SHIGERO TSUJIMOTO
-------------------------------------
Name: Shigero Tsujimoto
Title: Senior Vice President
& Manager
64
68
THE NIPPON CREDIT BANK, LTD.
By /s/ NOBUO IMAMURA
-------------------------------------
Name: Nobuo Imamura
Title: Attorney In Fact
65
69
THE NORINCHUKIN BANK,
NEW YORK BRANCH
By /s/ TERUOKI SAKURAUCHI
-------------------------------------
Name: Teruoki Sakurauchi
Title: Attorney In Fact
66
70
PT. BANK NEGARA INDONESIA
(PERSERO) TBK.
By /s/ I. GDE DEWA SUTHAPA
-------------------------------------
Name: I. Gde Dewa Suthapa
Title: General Manager
67
71
THE SAKURA BANK, LIMITED,
NEW YORK BRANCH
By /s/ MAKIYO NARUSHIMA
-------------------------------------
Name: Makiyo Narushima
Title: Attorney In Fact
68
72
THE SANWA BANK LIMITED,
NEW YORK BRANCH
By /s/ JEAN HERVE CARIOU
-------------------------------------
Name: Jean Herve Cariou
Title: Attorney In Fact
69
73
TAIPEIBANK, NEW YORK AGENCY
By /s/ ROMAN C. J. LAI
-------------------------------------
Name: Roman C. J. Lai
Title: Senior Vice President &
General Manager
70
74
TAIWAN BUSINESS BANK,
LOS ANGELES BRANCH
By /s/ HENRY M. T. YEE
-------------------------------------
Name: Henry M. T. Yee
Title: Vice President &
General Manager
71
75
THE TOKAI BANK, LIMITED,
NEW YORK BRANCH
By /s/ SHINICHIRO MIZUNO
-------------------------------------
Name: Sinichiro Mizuno
Title: International Finance Division
72
76
THE TOYO TRUST AND BANKING COMPANY,
LIMITED, NEW YORK BRANCH
By /s/ AKIRA HANAZONO
-------------------------------------
Name: Akira Hanazono
Title: Attorney In Fact
73
77
UNITED WORLD CHINESE COMMERCIAL BANK,
LOS ANGELES AGENCY
By /s/ SHIHCHEN JOSEPH JO
-------------------------------------
Name: Shihchen Joseph Jo
Title: Vice President &
General Manager
74
78
Schedule 1
Liability Share Percentages
Pre Tax
Percentage
Interest (%)
------------
Pertamina 42.3077
Total Indonesie 21.3670
Virginia Indonesia Company 0.7157
Lasmo Sanga Sanga Limited 2.5048
Union Texas East Kalimantan 2.5048
Limited
OPICOIL Houston, Inc. 1.9085
Virginia International Company 1.4910
Universe Gas & Oil Company, Inc. 0.4174
Indonesia Petroleum, Ltd. 22.7409
Unocal Indonesia Company 4.0422
100.0000%
75