BONTANG VI
DISBURSEMENT TRUSTEE AND
PAYING AGENT AGREEMENT
(Series 97-1)
THIS AGREEMENT, made and entered into as of this 19th day of
March, 1997, by and between Bank of America National Trust and
Savings Association, not in its individual capacity but solely as
trustee and paying agent (in such capacity, the "Bontang VI
Trustee") under the Bontang VI Trustee and Paying Agent Agreement
dated as of March 4, 1997, as the same may be amended from time to
time (the "Bontang VI Trust Agreement"); and Bank of America
National Trust and Savings Association, not in its individual
capacity but solely as disbursement trustee and paying agent under
this Agreement:
W I T N E S S E T H:
WHEREAS, the Bontang VI Trustee has entered into a Loan
Agreement, dated as of March ___, 1997, among the Bontang VI
Trustee, as Borrower, Bank of Taiwan, New York Agency, as Lead
Arranger, Bontang LNG Train-H Investment Co., Ltd., as Co-Lead
Arranger, the Co-Arrangers, the Co-Agents, the Lenders named
therein and The Chase Manhattan Bank, as Agent (as amended or
modified from time to time, the "Bontang VI Loan Agreement"); and
WHEREAS, as a matter of convenience, certain loan proceeds to
be received by the Bontang VI Trustee under the Bontang VI Loan
Agreement may be maintained in a disbursement trust fund until such
time as they are to be disbursed in accordance with the terms
hereof and of the Bontang VI Trust Agreement;
NOW, THEREFORE, in consideration of the above premises and the
mutual promises hereinafter contained and other good and valuable
consideration, the parties hereto hereby agree as follows:
Article 1
Definitions
When used herein, the following terms shall have the meanings
set forth below:
"Bontang VI Loan Agreement" shall have the meaning specified
in the recitals to this Agreement.
"Bontang VI Trust Agreement" shall have the meaning specified
in the introduction to this Agreement.
"Bontang VI Trustee" shall have the meaning specified in the
introduction to this Agreement.
"Capital Project Creditors" shall mean those persons to whom
payments are to be made hereunder as specified in payment
instructions duly given in accordance with the terms hereof.
"Depositary" shall mean the United States headquarters or a
United States branch of the following institutions appointed
pursuant to Section 3.1 hereof as a depositary of funds, properties
and rights in the Disbursement Trust Fund:
(a) any branch or affiliate of Bank of America National
Trust and Savings Association, with the power to act as a
depositary, or
(b) any other bank, trust company or financial
institution (in each case with trust powers) which (i) has a
net worth in excess of $100,000,000.00 or (ii) has outstanding
debt securities rated A or better by Standard and Poor's
Rating Group or its equivalent by Xxxxx'x Investors Service or
another nationally recognized rating agency in the United
States and, in either case, has been approved in writing by
the Bontang VI Trustee.
"Disbursement Trust Account" shall mean the records of account
established and maintained by the Trustee pursuant to Section 2.4
hereof with respect to the Disbursement Trust Fund, which shall be
designated by the Trustee and referred to by the parties hereto as
the "Series 97-1 Disbursement Trust Account."
"Disbursement Trust Fund" shall mean the disbursement trust
fund established pursuant to Article 2 hereof, which shall be
designated as the "Series 97-1 Disbursement Trust Fund."
"Escrow Agent" shall have the meaning specified in Section 3.4
hereof.
"Lenders" shall mean the lenders advancing funds to the
Bontang VI Trustee under the Bontang VI Loan Agreement.
"Loan Proceeds" means funds advanced to the Bontang VI Trustee
under the Bontang VI Loan Agreement, and any Transferred Amounts
(as defined in Section 3.7(a) of the Bontang VI Trust Agreement).
"Producers" shall have the meaning specified in the Bontang VI
Trust Agreement.
"Trustee" shall mean Bank of America National Trust and
Savings Association, acting not in its individual capacity but
solely as disbursement trustee and paying agent under this
Agreement, and its successors.
Any capitalized terms used herein that are not defined herein
shall have the meanings ascribed to them in the Bontang VI Trust
Agreement.
Article 2
Appointment and Status of Trustee
2.1 Appointment. The Bontang VI Trustee hereby appoints Bank
of America National Trust and Savings Association, and Bank of
America National Trust and Savings Association hereby accepts
appointment as, and agrees to act as, the Trustee hereunder,
subject to the terms and conditions hereof. The appointment of the
Trustee is made hereunder pursuant to and for the implementation of
Section 3.7 of the Bontang VI Trust Agreement. The appointment
hereunder may be changed only by the agreement in writing of the
Bontang VI Trustee; provided, however, that the resignation of or
the appointment of a successor to the Bontang VI Trustee in
accordance with the Bontang VI Trust Agreement shall be deemed also
to be a resignation or, as the case may be, an appointment of a
successor to the Trustee hereunder.
2.2 Receipt of Loan Proceeds. The Trustee shall receive and
hold, or cause to be held as part of the Disbursement Trust Fund,
all disbursements of Loan Proceeds received by it from the Lenders
under the Bontang VI Loan Agreement.
2.3 Disbursement Trust Fund. All such amounts received
hereunder, including, without limitation, and together with any
security or securities acquired or other investments made for or
with such amounts, all appreciation and interest or dividends
thereon and other income or property received therefrom, shall
constitute and be part of the Disbursement Trust Fund to be held in
trust for the benefit of those having a right, to the extent
provided herein, to disbursements hereunder.
2.4 Disbursement Trust Account. The Trustee shall establish
and maintain at the Trustee's office, records of account in which
necessary entries shall be made with respect to all receipts into
and payments out of the Disbursement Trust Account, which shall be
consistent with the treatment of Bontang VI Trust Funds under
Section 9.3 (excluding the first sentence thereof) of the Bontang
VI Trust Agreement.
2.5 Recording of Entries. In the records of account of the
Disbursement Trust Account, the Trustee shall, after receipt of
payment instructions pursuant to Article 4 hereof, record and make
entries for each of the Capital Project Creditors and the Bontang
VI Trustee to reflect clearly the interest of each party in the
assets of the Disbursement Trust Fund that arise pursuant to such
instructions for payment to each respective party and the receipts
and payments therefrom.
2.6 Currencies. The Trustee shall hold or cause to be held
in the Disbursement Trust Fund all sums of money in the same
currencies as shall have been paid into it, unless otherwise
directed by the Bontang VI Trustee for effecting necessary
payments, and the Trustee may establish and maintain bank accounts
in such currencies as shall be necessary for the foregoing.
2.7 Reports. The Trustee shall furnish to the Bontang VI
Trustee:
(a) within 20 days after the close of each calendar
quarter, a statement prepared by the Trustee setting forth the
amount and source (by category) of funds received and
disbursed pursuant to this Agreement during such preceding
calendar quarter, and a statement of the cash and investments
held under this Agreement as of the end of such period; and
(b) within 45 days after the close of each calendar
year, a statement prepared by the Trustee setting forth the
amount and source (by category) of funds received and
disbursed pursuant to this Agreement during the previous
calendar year and the income earned on funds held in the
Disbursement Trust Fund during the previous calendar year, and
a statement of the cash and investments held under this
Agreement as of the end of such period.
Article 3
Depositary and Escrow Agent
3.1 Appointment. The Trustee may, upon the consent of the
Bontang VI Trustee, appoint and remove any Depositary for the
purposes of safekeeping, investment or disbursement of funds,
properties and rights in the Disbursement Trust Fund, and may
entrust the Depositary with the exclusive custody and possession of
such funds, properties and rights in the Disbursement Trust Fund.
3.2 Notification. If the Trustee shall have appointed a
Depositary, the Trustee shall notify the Bontang VI Trustee of the
appointment as soon as practicable.
3.3 Responsibilities of Trustee. If the Trustee shall have
appointed a Depositary, the Trustee's responsibilities with respect
to the funds, properties and rights held by the Depositary shall
only be to maintain and administer the accounting of the
Disbursement Trust Account, and the Depositary shall have the
exclusive custody, responsibility for and possession of the funds,
properties and rights held by it.
3.4 Escrow Agent. The Trustee may, upon the consent of the
Bontang VI Trustee, appoint and remove any bank, trust company or
financial institution that conforms to the definition of
"Depositary" as an escrow agent ("Escrow Agent"), and with respect
thereto, the provisions of Sections 3.2 and 3.3 above shall apply
mutatis mutandis.
3.5 Conditions of Appointment. It shall be a condition to
the appointment of any Depositary or Escrow Agent hereunder that
the bank, trust company or financial institution so appointed shall
agree to hold the funds, properties and rights held by it in trust
on the same basis, and subject to the same rights and obligations,
as are set forth in this Agreement with respect to the Trustee, and
upon such agreement, such rights and obligations shall be enjoyed
by and binding upon such Depositary or Escrow Agent. The terms of
appointment of any Depositary or Escrow Agent shall not be
inconsistent with the provisions of this Agreement, the Bontang VI
Trust Agreement or the Bontang VI Loan Agreement.
3.6 Required Consent. Without the consent of the Bontang VI
Trustee, no funds, properties or rights shall be transferred from
the custody and possession of the Trustee to the custody and
possession of a Depositary or Escrow Agent, nor shall any such
funds, properties or rights be transferred from a Depositary or
Escrow Agent to the Trustee without such consent, unless such
transfer shall be required for effecting necessary payments
hereunder.
Article 4
Payment Instructions and Interest
4.1 No Interest. Except as otherwise provided in Article 6
below, no party shall have any interest or any right of whatever
kind or nature in the Disbursement Trust Fund until payment
instructions shall have been duly provided pursuant hereto. Upon
receipt by the Trustee of payment instructions provided in
accordance with and meeting the requirements of Section 4.2 below,
the payee (including any Capital Project Creditor) named therein
shall acquire an interest in the funds and assets of the
Disbursement Trust Fund only to the extent set forth in said
payment instructions.
4.2 Payment Instructions. With respect to any particular
payment, payment instructions hereunder will be honored only upon
the receipt by the Trustee of payment instructions from the Bontang
VI Trustee. Each payment instruction from the Bontang VI Trustee
hereunder shall include the following information:
(i) the designation of this Agreement as that under
which payment is to be made;
(ii) the name of payee and the place and manner of
payment;
(iii)the amount of such payment and the currency to be
used; and
(iv) a brief description of the purpose of such payment,
together with the relevant invoice number or
designation of other relevant payment
documentation.
4.3 Incompleteness. If any payment instruction does not include
all of the information required by Section 4.2 above, the Trustee
shall promptly so notify the Bontang VI Trustee by telex or
telecopier transmission (with a copy to the Producers) and shall
not comply with such incomplete instructions.
4.4 Entitled to Rely. The Trustee and any Depositary or
Escrow Agent shall be entitled to rely upon payment instructions
provided in accordance with this Article 4 in making payments out
of the funds in the Disbursement Trust Fund.
4.5 Making of Payments. Each of the Trustee and any
Depositary or Escrow Agent shall honor each payment instruction
submitted to it in accordance with this Article 4 by making the
payments specified therein only to the extent and out of amounts
then held in the Disbursement Trust Fund. In honoring such payment
instruction, neither the Trustee nor any Depositary or Escrow Agent
shall have any responsibility for determining whether or not the
payment disbursed is being made in accordance with the Bontang VI
Loan Agreement, the Bontang VI Trust Agreement or any other
agreements or understandings, it being understood that the
Trustee's and any Depositary's or Escrow Agent's sole
responsibility with regard to any payment instructions shall be to
make disbursements in accordance therewith.
4.6 Sufficient Funds Required. Neither the Trustee nor any
Depositary or Escrow Agent shall be obligated to make a payment
unless and until it holds sufficient funds in the Disbursement
Trust Fund to make all payments referred to in the related payment
instruction, unless a partial payment is directed by the Bontang VI
Trustee, but the Trustee or Depositary or Escrow Agent shall honor
any subsequent payment instruction if there shall be sufficient
funds to do so in the Disbursement Trust Fund.
4.7 Currencies of Payments. All payments made by the Trustee
or any Depositary or Escrow Agent in currencies other than those
held in the Disbursement Trust Fund shall be effected by such
exchange transactions pursuant to procedures directed by the
Producers and advised to the Trustee or such Depositary or Escrow
Agent, and the honoring of a payment instruction may be delayed for
any period necessary to effect such transactions. Expenses and
risk of exchange shall be borne by the Disbursement Trust Fund.
4.8 Distribution of Annual Income. The Trustee shall invest
monies in the Disbursement Trust Account in the same type of
investments and in the same manner as provided for in Sections 10.1
and 10.2 of the Bontang VI Trust Agreement. Upon receipt of
payment instructions from the Bontang VI Trustee on or after
February 15 of each year, which payment instructions shall include
notification from the Accountants regarding the amount of
investment income earned during such previous calendar year, the
Trustee shall promptly pay to the Bontang VI Trustee the amount of
such investment income.
Article 5
Concerning the Trustee
5.1 Duties. In connection with its duties, rights and powers
under this Agreement (including in relation to transactions it may
enter into pursuant thereto), the Trustee shall be subject to the
following:
(a) The Trustee shall be entitled to act upon any
notice, certificate, request, direction, waiver, receipt or
other document that it in good faith believes to be genuine;
and it shall be entitled to rely upon the due execution,
validity and effectiveness, and the truth and acceptability of
any provisions contained therein.
(b) The Trustee shall not be liable for any error of
judgment or for any act done or omitted by it in good faith or
for any mistake of fact or law, or for anything which it may
do or refrain from doing, except for its own gross negligence
or willful misconduct, nor shall the Trustee be liable for
special, indirect or consequential loss or damage of any kind,
including, without limitation, lost profits, except such
losses or damages resulting from its willful misconduct.
(c) Neither the Trustee nor any Depositary or Escrow
Agent shall be required to furnish any bond or other security
for the faithful performance of its duties as such, in any
jurisdiction.
(d) The Trustee may consult with, and obtain advice
from, accounting and legal advisers, and it shall incur no
liability or loss and shall be fully protected in acting in
good faith in accordance with the opinion and advice of such
advisors.
(e) The Trustee shall have no duties other than those
specifically set forth or provided for in this Agreement. The
Trustee shall have no obligation to familiarize itself with
and shall have no responsibility with respect to any agreement
to which it is not a party relating to the transactions
contemplated by this Agreement nor any obligation to inquire
whether any notice, instruction, statement or calculation is
in conformity with the terms of any such agreement, except for
those irregularities, errors or mistakes apparent on the face
of such document or to the knowledge of the Trustee. If,
however, any remittance or communication received by the
Trustee appears erroneous or irregular on its face, the
Trustee shall be under a duty to make prompt inquiry to the
person or party originating such remittance or communication
in order to determine whether a clerical error or inadvertent
mistake has occurred.
5.2 Compensation. The Trustee shall be entitled to
reasonable compensation to be agreed upon from time to time between
the parties for the services to be performed by the Trustee
hereunder and to be reimbursed for all reasonable out-of-pocket
expenses incurred by the Trustee in connection therewith. The
Trustee may charge such agreed compensation and expenses to the
Disbursement Trust Fund, providing the Bontang VI Trustee with such
evidence as to the nature and amount of such expenses as the
Bontang VI Trustee may reasonably require. If the balance in the
Disbursement Trust Fund is insufficient therefor, then the Bontang
VI Trustee shall pay such compensation and expenses to the Trustee.
Article 6
Termination
This Agreement and the Disbursement Trust Fund shall continue
until the Trustee shall have received instructions from the Bontang
VI Trustee to terminate the Disbursement Trust Fund. Upon receipt
of such instructions, the Trustee shall forthwith convert to cash
any investments then held by it and promptly pay over to the
parties specified in such instructions such cash proceeds plus any
other amounts then held in the Disbursement Trust Fund, less any
amounts payable to the Trustee under Sections 5.2 and 7.3 hereof.
Article 7
General Provisions
7.1 Amendment. This Agreement may not be revoked, amended,
modified, varied or supplemented except by a written instrument
duly executed by the Trustee and the Bontang VI Trustee.
7.2 Enforcement. Enforcement of any provision of this
Agreement shall not be affected by any previous waiver or course of
dealing.
7.3 Indemnification. The Bontang VI Trustee shall indemnify
the Trustee and all Depositaries and Escrow Agents for, and hold
each of them harmless against, any loss, liability, claim,
judgment, settlement, compromise or reasonable expense incurred or
suffered without gross negligence or willful misconduct on the part
of the Trustee or any Depositary or Escrow Agent, arising out of or
in connection with its entering into this Agreement and carrying
out its duties or exercising its rights hereunder.
7.4 Claims against Trustee. If either party shall claim
compensation for any damage sustained by reason of the failure to
perform, or the breach of, any provision of this Agreement, such
person shall, within 30 days after sustaining such damage or
acquiring knowledge of such event or failure or breach of
performance, make a written statement to the breaching person of
the nature of the damage sustained and the details and amount
thereof. Should such person fail to make the statements required
hereunder within the 30-day period, its claim for such compensation
shall be deemed to be forfeited and waived and upon expiration of
the 30-day period such claim for damages shall be invalidated.
7.5 Incumbency Certificates. The Bontang VI Trustee shall
furnish the Trustee and all Depositaries and Escrow Agents from
time to time with duly executed incumbency certificates showing the
names, titles and specimen signatures of the persons authorized on
behalf of the Bontang VI Trustee to take the actions and give the
notifications, approvals and instructions required by this
Agreement.
7.6 Notices. All notices, approvals, instructions, and other
communications for purposes of this Agreement shall be in writing,
which shall include transmission by telex or telecopier. All
communications given by telex or telecopier shall be directed as
set forth below, provided that, if any communication is received by
the Trustee from a telex or telecopy number other than those set
forth below, its responses thereto may be directed to the number
from which such communication was received:
A. To the Bontang VI Trustee at the following mail,
telex and telecopier addresses:
Bank of America National Trust and Savings
Association
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Vice President-Manager
Telex: 62 944
Answerback: BOA UW
Telecopier No.: (000) 000-0000
B. To the Trustee at the following mail, telex and
telecopier addresses:
Bank of America National Trust and Savings
Association
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President-Manager
Telex: 62 944
Answerback: BOA UW
Telecopier No.: (000) 000-0000
Any party hereto may designate additional addresses for
particular communications as required from time to time, and may
change any address, by notice given 10 days in advance of such
additions or changes. Immediately upon receiving communications by
telex or telecopier, a party may request a repeat transmittal of
the entire communication or confirmation of particular matters.
7.7 DISPUTES. ALL DISPUTES ARISING BETWEEN THE PARTIES
RELATING TO THIS AGREEMENT OR THE INTERPRETATION OR PERFORMANCE
HEREOF, SHALL BE FINALLY SETTLED BY ARBITRATION CONDUCTED IN THE
ENGLISH LANGUAGE IN PARIS, FRANCE, BY THREE ARBITRATORS UNDER THE
RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE.
JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION, OR APPLICATION BE MADE TO SUCH COURT FOR A JUDICIAL
ACCEPTANCE OF THE AWARD AND AN ORDER OF ENFORCEMENT AS THE CASE MAY
BE. ANY AWARD MADE UNDER THIS SECTION 7.7 SHALL BE BINDING UPON
ALL PARTIES CONCERNED.
7.8 Governing Law. This agreement shall be governed by and
construed in accordance with the law of the State of New York,
United States of America, applicable to agreements made and to be
performed entirely within such state.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized signatories as of
the date first above written.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Trustee and Paying Agent under
the Bontang VI Trustee and Paying
Agent Agreement dated as of March
4, 1997
By: /s/
Name: Hanafi Gan Bin Abdullah
Title: a/k/a/ Gan Kah Chai
Senior Vice President and
Country Manager
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Disbursement Trustee and
Paying Agent hereunder
By: /s/
Name: Hanafi Gan Bin Abdullah
Title: a/k/a/ Gan Kah Chai
Senior Vice President and
Country Manager
