EXHIBIT 1
GUARANTEED TRADE TRUST 1997-A
US$147,882,628
6.104% Guaranteed Trade Certificates
Series 1997-A
UNDERWRITING AGREEMENT
November 21, 1997
Citicorp Securities, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Citicorp North America, Inc. (the "Depositor") proposes to
sell and assign a Promissory Note in the outstanding principal amount of
US$147,882,628.79 (the "Promissory Note") to be issued by Empresa
Colombiana de Petroleos, a wholly-owned industrial and commercial
enterprise of the State of National Order created under the laws of the
Republic of Colombia (the "Borrower"), having the guarantee legend (the
"Guarantee Legend") evidencing the guarantee (the "Guarantee") of the
Export- Import Bank of the United States ("Eximbank") endorsed thereon,
to Guaranteed Trade Trust 1997-A (the "Trust") and to deliver to you (the
"Underwriter") US$147,882,628 aggregate principal amount of 6.104%
Guaranteed Trade Certificates, Series 1997-A (the "Certificates") evidenc
ing interests in the Trust.
The Promissory Note will be delivered to Citibank, N.A.,
acting through its Nassau Branch (the "Lender") pursuant to a Credit
Agreement, dated as of April 1, 1996, as it shall be amended prior to or
on the Closing Date (the "Credit Agreement"), among the Borrow er,
Eximbank and the Lender. The Guarantee Legend will be endorsed on the
Promissory Note pursuant to a Guaran tee Agreement, dated as of April 1,
1996, as it shall be amended prior to or on the Closing Date (the
"Eximbank Guarantee Agreement"), between Eximbank and the Lender. The
Promissory Note, together with the related rights under the Credit
Agreement and the Eximbank Guarantee Agreement but less all rights to
receive penalty interest thereon, will be purchased by the Depositor from
the Lender pursuant to a Transfer Agreement, to be dated November 26,
1997 (the "Transfer Agreement") and in turn sold and assigned to the
Trust by the Depositor pursuant to a Declaration of Trust (the
"Declaration"), comprised of the Master Terms of Trust dated as of
November 26, 1997 and the Supplement to the Declaration of Trust, to be
dated as of November 26, 1997 (the "Supplement"), each between the
Depositor and Citibank, N.A., as trustee (the "Trustee").
Simultaneously with the sale and assignment of the Promissory
Note, pursuant to the Declaration (i) the Trust will be established by
the Trustee and the Depositor and (ii) the Certificates will be issued
to the Depositor. The Certificates will represent undivided interests in
the assets of the Trust and will be sold pursuant to this Agreement.
In order to provide for the timely payment of principal of
and interest on the Certificates, the Depositor will deliver to the
Trust a Liquidity Reimbursement Agreement dated as of November 26, 1997
(the "Liquidity Reimbursement Agreement"), between Citibank, N.A., acting
through its Nassau Branch (the "Provider") and the Trustee, pursuant to
which the Provider will agree to make liquidity advances to the Trust. In
order to evidence the obligation of the Borrower to repay any advances
made by the Provider under the Liquidity Reimbursement Agreement, the
Borrower will enter into a Letter Agreement, dated November 26, 1997 (the
"Letter Agreement") with the Provider and deliver to the Provider a
Reimbursement Promissory Note dated November 26, 1997 (the "Reimburse
ment Promissory Note") pursuant to the Letter Agreement.
Capitalized terms used herein without definition shall have
the meanings set forth in the Prospectus (as hereinafter defined).
SECTION 1. Representations and Warranties of
the Depositor and the Borrower. (a) The Depositor
represents and warrants to, and agrees with, the Under
writer that:
(i) A registration statement on Form S-3 (No.
333-28935) including a prospectus and such amendments thereto as
may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as
amended (the "Act"), has been filed with the Securities and
Exchange Commission (the "Commission") and such registration
statement as amended has become effective. No stop order suspending
the effectiveness of such registration statement has been issued,
and no proceeding for that purpose has been initiat ed or
threatened by the Commission. Such regis tration statement as
amended and any preliminary prospectus relating to the Certificates
included in such registration statement or filed with the Com
mission pursuant to Rule 424(a) under the Act and the prospectus
relating to the sale of Certificates by the Depositor constituting
a part thereof as from time to time amended or supplemented
(including any prospectus filed with the Commission pursuant to
Rule 424(b) or (c) of the rules and regulations of the Commission
under the Act (the "Rules and Regula tions") or any prospectus
which pursuant to Rule 429 of the Rules and Regulations relates to
Certificates registered under more than one registration statement
including the Registration Statement), includ ing all documents
incorporated therein by reference, are respectively referred to
herein as the "Registration Statement", the "Preliminary
Prospectus" and the "Prospectus"; provided, however, only the
supplement to the Prospectus prepared pursuant to Sec tion 5(i)
hereof shall be deemed to have supplemented the Prospectus. The
conditions to the use of a registration statement on Form S-3 under
the Act, as set forth in the General Instructions to Form S-3
(subject to satisfaction of the security rating requirement set
forth in Transaction Requirement B.2 thereof), and the conditions
to Rule 415 under the Act, have been satisfied with respect to the
Deposi tor and the Registration Statement.
(ii) On the effective date of the Registration
Statement, the Registration Statement and the Prospectus conformed
in all respects to the requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and on the Closing Date, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the
Act and the Rules and Regul tions, and neither of such documents
will include any untrue statement of a material fact or omit to
state any material fact required to be stated there in or necessary
to make the statements therein not misleading. Each of the
documents incorporated into the Registration Statement or the
Prospectus by reference to such document as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
at the time it was or will be filed with the Commission under the
Exchange Act, complied and will comply in all material respects
with the provisions of the Exchange Act and, when read together
with the other information in the Registration Statement and the
Prospectus, does not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. The foregoing provisions of this paragraph (ii) do not
apply to statements or omissions made in the Registration Statement
or any amendment thereto or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written
information furnished to the Depositor by or on behalf of the
Borrower or the Underwriter specifically for use therein.
(iii) The Depositor is a corporation duly organized and
validly existing and in good standing under the laws of the State
of Delaware, and has all requisite corporate power and authority to
own its properties and conduct its business as presently conducted
and to execute, deliver and perform this Agreement, the Declaration
and the Transfer Agree ment, to purchase the Promissory Note from
the Lender, to deposit the Promissory Note with the Guarantee
Legend endorsed thereon in the Trust, to assign all its rights in
the Promissory Note, the Credit Agreement and the Eximbank
Guarantee Agreement to the Trust, and to consummate the
transactions contemplated hereby and thereby.
(iv) The execution, delivery and performance by the
Depositor of this Agreement, the Transfer Agreement and the
Declaration and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by all
necessary corporate action or proceedings.
(v) This Agreement has been and, as of the Closing
Date, the Declaration and the Transfer Agreement will have been,
duly executed and delivered by the Depositor. On the Closing Date
the Declaration and the Transfer Agreement will constitute valid
and binding obligations of the Depositor, enforceable against the
Depositor in accordance with their respective terms.
(vi) The Depositor has authorized the sale of the
Promissory Note with the Guarantee Legend endorsed thereon to the
Trust, and, on the Closing Date, the Promissory Note with the
Guarantee Legend endorsed thereon and all the Depositor's rights in
the Credit Agreement, the Guarantee and the Eximbank Guarantee
Agreement will have been conveyed to the Trust.
(vii) On the Closing Date, the Trust will have good
title to the Promissory Note with the Guarantee Legend endorsed
thereon, and will have ac quired all the Depositor's rights in the
Credit Agreement, the Guarantee and the Eximbank Guarantee
Agreement, in each case free and clear of all prior liens, charges
and encumbrances.
(viii) Any taxes, fees and other governmental charges
in connection with the execution, delivery and performance of this
Agreement, the Declaration and the Transfer Agreement by the
Depositor shall have been paid or will be paid by the Depositor on
or prior to the Closing Date to the extent then due.
(ix) On the Closing Date, the Certificates will
conform in all material respects to the description thereof
contained in the Prospectus.
(x) The Depositor has received no notice from Eximbank
to the effect that the guarantee of Eximbank has been or will be
revoked, rescinded, modified or suspended.
(xi) Neither the execution, delivery or performance by
the Depositor of this Agreement, the Declaration or the Transfer
Agreement, nor the ful fillment by the Depositor of the terms
hereof or thereof, violates any provision of the federal laws of
the United States or violates any order of any court of the United
States which violation would reasonably be likely to have a
material adverse effect on the Depositor's ability to perform its
obligations hereunder or thereunder.
(xii) There is no action, suit or pro ceeding pending,
or, to the knowledge of the Deposi tor, threatened against the
Depositor, and no other action, suit, or proceeding known to the
Depositor is pending before any court or administrative xxxx xx,
challenging the validity or enforceability of this Agreement, the
Declaration, the Transfer Agree ment, the Credit Agreement, the
Guarantee or the Eximbank Guarantee Agreement, or the transactions
contemplated hereby or thereby, or which would reasonably be likely
to have a material adverse effect on the Depositor's ability to
perform its obligations hereunder or thereunder.
(b) The Borrower represents and warrants to, and agrees with,
the Underwriter that:
(i) The Borrower is duly organized and existing in good
standing under the laws of the Republic of Colombia with all
requisite power and authority to execute, deliver and perform this
Agreement, the Credit Agreement and the Letter Agreement, to
deliver the Promissory Note to the Lender and the Reimbursement
Promissory Note to the Provider, and to consummate the transactions
contem plated hereby and thereby.
(ii) The execution, delivery and performance by the
Borrower of this Agreement, the Promissory Note, the Credit
Agreement, the Letter Agreement and the Reimbursement Promissory
Note and the consummation of the transactions contemplated hereby
and thereby have been duly and validly authorized by all necessary
action or proceedings.
(iii) This Agreement has been duly executed and
delivered by the Borrower.
(iv) The Credit Agreement has been duly executed and
delivered by the Borrower and constitutes a valid and binding
obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
(v) On the Closing Date, the Letter Agreement will have
been duly executed and delivered by the Borrower and will
constitute a valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.
(vi) On the Closing Date, the Promissory Note will have
been duly executed and delivered by the Borrower and will
constitute a valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms and
the Prom issory Note will be entitled to the benefits of the Credit
Agreement.
(vii) On the Closing Date, the Reimburse ment
Promissory Note will have been duly executed and delivered by the
Borrower and will constitute a valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its
terms and the Reimbursement Promissory Note will be entitled to the
benefits of the Letter Agreement.
(viii) Any taxes, fees and other governmental charges
in connection with the execution, delivery and performance of this
Agreement, the Promissory Note, the Credit Agreement, the Letter
Agreement and the Reimbursement Promissory Note by the Borrower
shall have been paid or will be paid by the Borrower at or prior to
the Closing Date to the extent then due.
(ix) On the Closing Date, when validly executed, issued
and delivered in accordance with the Credit Agreement and conveyed
to the Lender and when the Guarantee Legend is endorsed thereon by
Eximbank, the Promissory Note will conform in all material respects
to the description thereof contained in the Prospectus.
(x) The Credit Agreement and the Letter Agreement
conform in all material respects to the descriptions thereof
contained in the Prospectus.
(xi) The Borrower has received no notice from Eximbank
to the effect that the Guarantee, the Eximbank Guarantee Agreement
or the Guarantee Legend on the Promissory Note has been or will be
revoked, rescinded, modified or suspended.
(xii) On the date when the Prospectus or any amendment
or supplement thereto is filed with the Commission pursuant to Rule
424(b), on the date when the Prospectus is otherwise amended or
supplemented and on the Closing Date, the Prospectus, as amended
or supplemented at any such time, (A) contained or will contain
all statements with respect to the Borrower required to be stated
therein in accordance with the Act and the respective rules and
regulations of the Commission thereunder and (B) did not or will
not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein with respect to the Borrower, in the light of the
circumstances under which they were made, not misleading.
(xiii) Neither the execution, delivery or performance
by the Borrower of this Agreement, the Promissory Note, the Credit
Agreement, the Letter Agreement or the Reimbursement Promissory
Note, nor the fulfillment by the Borrower of the terms hereof or
thereof, violates any provision of the laws of the United States or
the Republic of Colombia or violates any order of any court of the
United States or the Republic of Colombia which violation would
reasonably be likely to have a material adverse effect on the
Borrower's ability to perform its obligations hereunder or
thereunder.
(xiv) There is no action, suit or proceeding pending,
or, to the knowledge of the Borrow er, threatened against the
Borrower, and no other action, suit, or proceeding known to the
Borrower is pending before any court or administrative agency,
challenging the validity or enforceability of this Agreement, the
Promissory Note, the Credit Agree ment, the Letter Agreement or the
Reimbursement Promissory Note, or the transactions contemplated
hereby or thereby, or which action, suit or proceed ing would
reasonably be likely to have a material adverse effect on the
Borrower's ability to perform its obligations hereunder or
thereunder.
SECTION 2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties of
the Depositor and the Borrower herein set forth, the Depositor agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the
Depositor, at a purchase price of 100% of the aggregate initial
Principal Amount of the Certificates, all of the Certificates.
SECTION 3. Delivery and Payment. Delivery of and payment for
the Certificates shall be made at 10:00 a.m., New York City time, on
November 26, 1997, or at such later date and time as the Underwriter
shall establish in consultation with the Depositor and the Borrower and
counsel to the Borrower (such date and time of delivery and payment for
the Certificates being herein called the "Closing Date"). Delivery of one
or more global certificates representing the Certificates shall be made
to the Underwriter against payment by the Underwriter of the purchase
price therefor, to or upon the order of the Depositor by one or more wire
transfers or certified or official bank check or checks payable in
immediately available (same day) funds. Delivery of the global cer
tificate(s) representing the Certificates shall be made at such location
as the Underwriter shall reasonably designate at least two business days
in advance of the Closing Date. Payment for the Certificates shall be
made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. The global certificate(s) representing
the Certificates shall be registered in the name of Cede & Co., as
nominee for the Depository Trust Company ("DTC").
The global certificate(s) shall be available for inspection
and checking by the Underwriter in New York, New York, not later than
1:00 P.M. on the business day prior to the Closing Date.
Simultaneously with the receipt by the Depositor of the
purchase price for the Certificates from the Underwriter, the Depositor
shall, against receipt of the Promissory Note from the Borrower pursuant
to the Credit Agreement, by one or more wire transfers or certified or
official bank check or checks payable in immediately available (same day)
funds pay to the Underwriter its underwriting commission of
US$443,648.00.
SECTION 4. Offering by Underwriter. It is understood that the
Underwriter proposes to offer the Certificates for sale to the public as
set forth in the Prospectus.
SECTION 5. Covenants of the Depositor. The Depositor
covenants and agrees with the Underwriter and the Borrower that:
(i) Immediately following the execution of this
Agreement, the Depositor will prepare a prospectus supplement
setting forth the principal amount of Certificates covered thereby,
the interest rate to be borne by the Certificates, the identity of
the Borrower, and such other terms not otherwise specified in the
base prospectus included in the Registration Statement as in effect
with respect to the Certificates, the price at which the
Certificates are to be purchased by the Underwriter from the
Depositor, either the initial public offering price or the method
by which will be determined the price at which the Certificates are
to be sold, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other infor mation as the
Underwriter, the Borrower and the Depositor deem appropriate in
connection with the offering of the Certificates, but the Depositor
will not file any amendments to the Registration State ment as in
effect with respect to the Certificates, or any amendments or
supplements to the Prospectus, of which the Borrower and the
Underwriter shall not previously have been advised and furnished
with a copy for a reasonable period of time prior to the proposed
filing and as to which filing the Borrower and the Underwriter
shall not have given their consent (which consent shall not
unreasonably be withheld). The Depositor will notify the Borrower
and the Underwriter and their respective counsel immediately (and
confirm such notice in writing) (i) when notice is received from
the Commission that any post-effective amendment to the
Registration Statement has become or will become effective, (ii) of
the receipt of any comments (whether written or oral) from the
Commission, and (iii) of any order or communication suspending or
preventing, or threaten ing to suspend or prevent, the offer and
sale of the Certificates, or of any proceedings or examinations
that may lead to such an order or communication, whether by or of
the Commission or any authority administering any state securities
or Blue Sky law, as soon as the Depositor is advised thereof, and
will use its best efforts to prevent the issuance of any such order
or communication and to obtain as soon as possible its lifting, if
issued. At least five days in advance of their filing, the
Depositor will deliver to you copies of any documents which will be
incorporated into the Registration Statement or Prospectus by
reference.
(ii) The Depositor will advise the Under writer, the
Borrower and their respective counsel promptly after receiving
notice, or obtaining knowl edge thereof (and if requested by the
Underwriter or the Borrower will confirm such advice in writing),
of (A) when the Prospectus, and any supplement thereto, shall have
been filed with the Commission pursuant to Rule 424(b), (B) the
issuance by the Commission of any stop order suspending the effec
tiveness of the Registration Statement or any post-effective
amendment thereto or any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or the institution, threatening or contem
plation of any proceedings for any such purpose, (C) the suspension
of the qualification or exemption from qualification of the
Certificates for offering or sale in any jurisdiction or the
institution, threatening or contemplation of any proceedings for
any such purpose, or (D) any request made by the Commission for
amending the Registration Statement, for amending or supplementing
any Preliminary Prospectus or the Prospectus or for additional
informa tion. The Depositor will use its reasonable efforts to
prevent the issuance of any such stop order and, if any such stop
order is issued, to obtain the withdrawal thereof as promptly as
possible.
(iii) The Depositor will arrange for the registration
or qualification of the Certificates for offering and sale and the
determination of their eligibility for investment under the
securities or blue sky laws of such jurisdictions as the
Underwriter may designate and will continue such qualifications in
effect for as long as may be necessary to complete the distribution
of the Certificates, provided, however, that in connection
therewith the Depositor shall not be required to qualify to do
business as a foreign corporation or as a broker-dealer or to
execute a general consent to service of process in any
jurisdiction.
(iv) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event
occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Prospectus to
comply with the Act or the rules or regulations of the Commission
thereun der or any other law, the Depositor, on behalf of the
Trust, subject to Section 5(i) hereof, will prepare and file with
the Commission an amendment to the Registration Statement or an
amendment or supplement to the Prospectus that corrects such statement
or omission or effects such compliance; provided that the
Depositor shall not file any such amend ment or supplement of which
the Borrower, the Underwriter and their respective counsel shall
not previously have been advised and furnished with a copy for a
reasonable time prior to the proposed filing and as to which filing
the Borrower or the Underwri ter shall not have given their consent
(which con sent shall not unreasonably be withheld).
(v) The Depositor will provide to the Borrower, to the
Underwriter and their respective counsel, without charge, a
conformed copy of the registration statement originally filed with
respect to the Certificates and each amendment thereto, including
any post-effective amendment thereto (in each case including any
financial statements and schedules and exhibits thereto and
documents incor porated by reference therein (including exhibits
incorporated therein by reference to the extent not previously
furnished to the Underwriter)).
(vi) So long as a prospectus relating to the
Certificates is required to be delivered under the Act, the
Depositor will provide, or cause to be provided, as many copies of
each Preliminary Pro spectus or the Prospectus or any amendment or
sup plement thereto as the Underwriter may reasonably request. The
Depositor consents to the use of the Preliminary Prospectus and the
Prospectus and any amendment or supplement thereto by the
Underwriter and by all dealers to whom the Certificates may be
sold, both in connection with the offering or sale of the
Certificates contemplated herein and for such period of time
thereafter as delivery of a prospec tus relating to the
Certificates is required under the Act. The Depositor will provide
or cause to be provided to the Underwriter, the Borrower and their
respective counsel, a copy of any Report on Form SR filed by the
Depositor as required by Rule 463 under the Act.
(vii) The Depositor will cause the Trust, as soon as
practicable, to make generally available to its Certificateholders
and to the Underwriter a statement or statements of the Trust that
satisfies the provisions of Section 11(a) of the Act and Rule 158
promulgated thereunder.
(viii) The Depositor will cause the Trust to apply the
net proceeds from the sale of the Certificates as set forth under
"Use of Proceeds" in the Prospectus.
SECTION 6. Expenses.
(a) Subject to the limitations set forth in the letter
agreement dated April 16, 1997 (the "Commit ment Letter"), between the
Borrower and the Underwriter, the Depositor will pay all costs and
expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 10
hereof, including, but not limited to, all costs and expenses of (i) the
printing or other produc tion of documents (including word processing and
duplication) with respect to such transactions, including any costs of
printing any amendment to the Registration Statement filed with respect
to the Certificates and any amendment thereto, any Preliminary Prospectus
and the Prospectus and any amendment or supplement thereto, the
Declaration, this Agreement, any dealer agreement and such other
agreements related to the distribution of the Certificates and any Blue
Sky or legal investment memorandum (which shall include the reasonable
disbursements of counsel for the Underwriter in respect thereof), (ii)
all arrangements relating to the delivery to the Underwriter and to the
dealers to whom the Certificates may be sold of copies of the foregoing
documents, (iii) the fees and disbursements of the counsel and any other
experts or advisers retained by the Depositor, (iv) preparation, issuance
and delivery to the Underwriter of any certifi xxxxx evidencing the
Certificates, (v) the qualification of the Certificates and determination
of their eligibility for investment under state securities and Blue Sky
laws, including filing fees, and fees and disbursements of counsel for
the Underwriter relating thereto, (vi) the fees and, if required by the
Trustee, disbursements of the Trustee, (vii) the filing fees of the
Commission relating to the Certificates, (viii) any fees charged by
investment rating agencies for the rating of the Certificates, (ix) the
fees and expenses of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP or other
counsel for the Under writer.
(b) If the sale of the Certificates provided for herein is
not consummated because any condition to the obligations of the
Underwriter set forth in Section 7 hereof is not satisfied, because this
Agreement is terminated pursuant to Section 10 hereof or because of any
failure, refusal or inability on the part of the Borrower to perform all
obligations and satisfy all conditions on its part to be performed or
satisfied hereunder other than by reason of a default by the Underwriter,
subject to the limitations set forth in the Commitment Letter, the
Borrower will reimburse the Underwriter promptly upon demand for all
out-of-pocket expenses (including reason able fees and disbursements of
counsel) that shall have been incurred by it in connection with the
proposed purchase and sale of the Certificates. The Borrower shall not in
any event be liable to the Underwriter for the loss of anticipated
profits from the transactions covered by this Agreement.
SECTION 7. Conditions of Underwriter's Obligation. The
obligations of the Underwriter to purchase and pay for the Certificates
shall be subject, in the Under writer's sole discretion, to the accuracy
of the representations and warranties of the Depositor and the Borrower
contained herein as of the date hereof and as of the Closing Date, to the
accuracy of the statements of the Depositor and the Borrower made in any
certificates delivered pursuant to the provisions hereof, to the
performance by the Depositor and the Borrower of their obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment thereto
filed prior to the Closing Date has not been declared effective as of the
time of execution hereof, the Registration Statement or such amendment
shall have been declared effective not later than 11 A.M., New York City
time, on the date on which the amendment to the registration statement
originally filed with respect to the Certificates or to the Registration
Statement, as the case may be, containing information regard ing the
initial public offering price of the Certificates has been filed with the
Commission, or such later time and date as shall have been consented to
by the Underwriter; if required, the Prospectus and any amendment or
supplement thereto shall have been filed with the Commis sion in the
manner and within the time period required by Rule 424(b) under the Act;
no stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened
or, to the knowledge of the Depositor or the Underwriter, shall be
contemplated by the Commission; and the Depositor shall have complied
with any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise).
(b) The Underwriter shall have received an opinion dated the
Closing Date of Xxxxxx Xxxxxxxx, Colombian counsel to the Borrower, to
the effect that:
(i) The Borrower is duly organized and existing in good
standing under the laws of the Republic of Colombia and has full
power, authority and legal right to incur the indebtedness and
obligations provided for in the Credit Agreement, the Promissory
Note, this Agreement, the Letter Agree ment and the Reimbursement
Promissory Note, and has taken all legal and other action necessary
to autho rize it to execute and deliver this Agreement, the
Promissory Note, the Credit Agreement, the Letter Agreement and the
Reimbursement Promissory Note and perform and observe the terms and
conditions of this Agreement, the Promissory Note, the Credit
Agreement, the Letter Agreement and the Reimbursement Promissory
Note.
(ii) All authorizations, registrations and approvals
(including any foreign exchange ap proval with respect to the
availability and transfer of Dollars necessary to make all required
payments under the Promissory Note, the Credit Agreement, the
Letter Agreement and the Reimbursement Promissory Note) of, or
filings or registrations with the Republic of Colombia, or of any
governmental agency thereof or therein, together with any
third-party consents, which are necessary or advisable for the
execution, delivery and performance of this Agreement, the
Promissory Note, the Credit Agreement, the Letter Agreement and the
Reimbursement Promissory Note or for the validity, binding effect
and enforceability hereof or thereof have been obtained and are
binding and enforceable and in full force and effect.
(iii) No constitutional provision, law, ordinance,
decree or regulation of the Government of Colombia, or any agency,
department or instrumental ity thereof, no provision of any
charter, by-law or similar instrument of the Borrower and no
provision of any agreement or other instrument binding on the
Borrower or to which it or its properties or revenues may be
subject is or will be contravened by its execution and delivery of
this Agreement, the Promissory Note, the Credit Agreement, the
Letter Agree ment or the Reimbursement Promissory Note or its
performance and observance of terms and conditions of this
Agreement, the Promissory Note, the Credit Agreement, the Letter
Agreement or the Reimbursement Promissory Note.
(iv) There is no pending or, to the best of the
knowledge of such counsel, threatened action or proceeding
affecting the Borrower before any court, governmental agency,
international organiza tion or arbitrator, which (i) questions or
could affect the legality, validity, binding effect or
enforceability of this Agreement, the Promissory Note, the Credit
Agreement, the Letter Agreement or the Reimbursement Promissory
Note, (ii) might re strain or enjoin or have the effect of
restraining or enjoining its performance or observance of the terms
and the conditions of this Agreement, the Promissory Note, the
Credit Agreement, the Letter Agreement or the Reimbursement
Promissory Note or (iii) may individually or in the aggregate
material ly and adversely affect the financial condition or
operations of the Borrower.
(v) The submission to jurisdiction and waiver of
sovereign immunity by the Borrower set forth in Sections 14 and 15
of this Agreement, respectively, are both effective and
irrevocably binding on the Borrower.
(vi) No consent, license, approval or authorization of,
or registration, recording or filing with, the Government of
Colombia or any court, agency, department or other administrative
authority or instrumentality of the Government of Colombia or any
local or other governmental authority within Colombia is required
for the execution, delivery or performance of this Agreement, the
Promissory Note, the Credit Agreement, the Letter Agreement or the
Reimbursement Promissory Note by the Borrower or for the validity,
enforceability, priority or admissibility hereof and thereof.
(vii) The waiver of immunity by the Borrower, the
appointment of the Process Agent for service of process, the
consent by the Borrower to the jurisdiction of the courts specified
and the provision that the law of the State of New York shall
govern this Agreement, the Promissory Note, the Credit Agreement,
the Letter Agreement and the Reimbursement Promissory Note, all as
provided in this Agreement, the Credit Agreement and the Letter
Agreement, are irrevocably binding on the Borrower and are valid
under the laws of the Republic of Colombia.
(viii) This Agreement, the Credit Agreement and the
Letter Agreement are, and the Promissory Note and the
Reimbursement Promissory Note, when delivered by the Borrower under
the Credit Agreement and the Letter Agreement, respectively, will
be, in proper legal form under the laws of the Republic of Colombia
for the most expeditious enforcement there of against the Borrower
in the courts of the Republic of Colombia and any judgment
obtained in the courts of New York will be recognized and enforced.
(ix) The Depositor and the Underwriter are not
prevented from entering into this Agreement by reason of any of the
prohibitions and incompatibilities mentioned in Law 80 of 1993 of
the Republic of Colombia.
In rendering the opinions set forth above, such counsel may
assume and state that he has not independently verified (i) the
authenticity of all documents submitted to him as originals and the
conformity to the origi nals of all documents submitted to him as copies,
(ii) that the execution and delivery of the Credit Agreement and the
Letter Agreement have been duly authorized by each of the parties thereto
(other than the Borrower) and that each of the parties thereto (other
than the Borrower) has full power, authority and legal right to enter
into each such agreement and to perform its obligations thereunder, and
(iii) that the Credit Agreement and the Letter Agreement have been duly
executed and delivered by each of the parties thereto (other than the
Borrower). Such counsel may also assume that the Credit Agreement, the
Promissory Note, the Letter Agreement and the Reimbursement Promissory
Note are legal, valid, binding and enforceable under New York law.
In rendering such opinions, such counsel may limit his
opinions to matters governed by the laws of the Republic of Colombia.
(c) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, special New York
counsel to the Borrow er, to the effect that:
(i) The Credit Agreement, the Promissory Note, the
Letter Agreement and the Reimbursement Promissory Note are the
valid and binding obliga tions of the Borrower, enforceable against
the Borrower in accordance with their respective terms, the
Promissory Note is entitled to the benefits of the Credit Agreement
and the Reimbursement Promisso ry Note is entitled to the benefits
of the Letter Agreement.
(ii) The execution and delivery of the Credit
Agreement, this Agreement, the Promissory Note, the Letter
Agreement and the Reimbursement Promissory Note by the Borrower and
the performance by the Borrower of its obligations therein and
herein contemplated do not require the consent, approval,
authorization, registration or qualifica tion of or with any
federal or New York State governmental authority, except such as
have been obtained or effected (except as to any consent, ap
proval, authorization, registration or qualification that may be
required under United States securities laws and state securities
or Blue Sky laws, as to which such counsel need express no
opinion).
In addition, such counsel shall state that, based on inquiry
of lawyers currently with such law firm who, according to the records of
such law firm, have performed legal services for the Borrower since
January 1, 1997, such counsel know of no legal or governmental
proceedings pending to which the Borrower is a party or threatened
against the Borrower, (A) asserting the inval idity of this Agreement,
the Promissory Note, the Credit Agreement, the Letter Agreement or the
Reimbursement Promissory Note or (B) seeking to prevent the performance
of any of the transactions contemplated by this Agreement, the
Promissory Note, the Credit Agreement, the Letter Agreement or the
Reimbursement Promissory Note; provided that such counsel may regard any
legal or governmental proceedings not to be threatened unless the
potential litigant or governmental authority has manifested to such
counsel a present intention to initiate such proceedings.
In rendering the opinions expressed above, such counsel may
assume (i) the authenticity of all documents submitted to them as
originals and the conformity to originals of all documents submitted to
them as copies, (ii) that the signatures on all documents that they have
examined are genuine, (iii) each party (including the Borrower) to this
Agreement, the Credit Agreement, the Promissory Note, the Letter
Agreement and the Reimburse ment Promissory Note has satisfied those
legal require ments that are applicable to it to the extent necessary to
make such agreement or obligation enforceable against it (except that no
such assumption is made as to the Borrower regarding matters of the
federal law of the United States of America or the law of the State of
New York), and (iv) the accuracy as to factual matters of each document
we have reviewed (including, without limitation, the accuracy of the
representations and warranties of Ecopetrol in the Credit Agreement,
this Agreement and the Letter Agreement.
In addition, such counsel may state that (i) the opinion
expressed in paragraph (i) above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, to general principles of
equity and to judicial application of foreign laws or governmental
actions affecting creditors' rights, (ii) the enforceability of the
obligations of the Borrower under the Credit Agreement, the Promissory
Note, the Letter Agreement and the Reimbursement Promissory Note are
subject to general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law), (iii) the
enforceability in the United States of the waiver by the Company of its
immunities from court jurisdiction and from legal process, as set forth
in the Letter Agreement and the Credit Agreement, is subject to the
limitations imposed by the United States Foreign Sovereign Immunities Act
of 1976 and (iv) the enforceability of the indemnification provisions set
forth in the Letter Agreement may be subject to considerations of public
policy.
In rendering such opinions, such counsel may state that they
(i) express on opinion as to Section 14 of this Agreement as to the
subject matter jurisdiction base of any United States federal court to
adjudicate any action relating to such agreement where jurisdiction based
on diversity of citizenship under 20 U.S.C. ss. 1332 does not exist, (ii)
note that the designation in such Section 14 of the federal courts of the
United States for the Southern District of New York as one of the venues
for legal actions or proceedings relating to this Agreement is
(notwithstanding the waiver in Section 14 of this Agreement) subject to
the power of such courts to trans fer actions pursuant to U.S.C.
ss.1404(a) or to dismiss such actions or proceedings on the grounds that
such a federal court is an inconvenient forum for such action or
proceeding, and (iii) express no opinion as to Section 9.11 of the Credit
Agreement relating to the continuing validity and enforceability of
provisions in the Credit Agreement notwithstanding the ineffectiveness of
other provisions.
In rendering such opinions, such counsel may limit their
opinions to the federal law of the United States of America and the law
of the State of New York.
(d) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel to the Trust and the Depositor, to the effect that:
(i) The Depositor is a corporation duly incorporated
and validly existing under the laws of the State of Delaware with
all requisite corporate power and authority to execute, deliver and
perform its obligations under the Transfer Agreement, this
Agreement and the Declaration.
(ii) The Declaration is a valid and binding agreement
of the Depositor, enforceable against the Depositor in accordance
with its terms, except to the extent that enforcement thereof may
be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights gener ally, and (b) general
principles of equity (regard less of whether enforceability is
considered in a proceeding at law or in equity).
(iii) The Certificates, when duly and validly executed
and authenticated by the Trustee in the manner contemplated by the
Declaration and delivered to and paid for by the Underwriter pursuant
to this Agreement, will be validly issued and outstanding and
entitled to the benefits of the Declaration.
(iv) The statements contained in the Prospectus under
the captions "The Eximbank Guaran tees", "The Promissory Note",
"The Promissory Notes", "The Credit Agreements", "Description of
the Certificates", "The Liquidity Facility" and "The Liquidity
Facilities", insofar as such statements constitute a summary of the
documents referred to therein, fairly present the information
called for with respect to such documents.
(v) The Registration Statement, as of its effective
date, and the Prospectus, as of its date, appeared on their face to
be appropriately responsive in all material respects to the
requirements of the Act and the rules and regulations thereunder,
except that in each case such counsel need express no opinion as to
financial statements, schedules and other financial data included
therein or excluded therefrom or the exhibits to the Registration
Statement, and such counsel need assume no responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus except to the extent
set forth in Sections 7(d)(iv) and (viii) hereof.
(vi) The Declaration is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
(vii) The Trust is not an "investment company" or under
the "control" of an "investment company" as such terms are defined
under the Invest ment Company Act of 1940, as amended.
(viii) The statements contained in the Prospectus under
the captions "The Eximbank Guaran tees", "Certain United States
Federal Tax Consequences" and "ERISA Considerations," to the
extent that they constitute matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
(ix) Assuming the due authorization, execution and
delivery thereof by Eximbank, the Eximbank Guarantee Agreement and
the Guarantee Legend endorsed on the Promissory Note are enforce
able against Eximbank in the United States Court of Claims, subject
as to enforceability to general principles of equity (regardless of
whether such en forcement is sought in a proceeding in equity or at
law).
Such counsel shall state that they are advised by the
Commission that the Registration Statement was declared effective under
the Act (specifying the time and date of such declaration), and, to the
best of the knowledge of such counsel, no stop order suspending its
effectiveness has been issued and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
In addition, such counsel shall state that they have
participated in conferences with officers and other representatives of
the Depositor, the Borrower, Eximbank and the Underwriter at which the
contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel need not pass upon or
assume responsibility for, the accuracy, com pleteness or fairness of the
statements contained in the Registration Statement and the Prospectus and
need not have made an independent check or verification thereof except
for those made under the captions "The Eximbank Guarantees", "The
Promissory Note", "The Promissory Notes", "The Credit Agreements",
"Description of the Certificates", "The Liquidity Facility" and "The
Liquidi ty Facilities" in the Prospectus insofar as they relate to
provisions of the documents therein described and under the captions "The
Eximbank Guarantees", "Certain United States Federal Tax Consequences"
and "ERISA Considerations" in the Prospectus to the extent that they
constitute matters of law or legal conclusions with respect thereto, such
counsel shall state that, on the basis of the foregoing, no facts have
come to the atten tion of such counsel that have led such counsel to be
lieve that the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading or that the Prospectus, as of its
date, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Such counsel need express no opinion or belief with respect to the
financial statements, schedules and other financial information included
in or excluded from the Registration Statement or the Prospectus or the
exhibits to the Registration Statement.
In rendering the opinions expressed above, such counsel may
assume (i) the authenticity of all documents submitted to them as
originals and the conformity to originals of all documents submitted to
them as copies, (ii) that the signatures on all documents that they have
examined are genuine, (iii) that the Declaration and the Credit Agreement
constitute the legal, valid, binding and enforceable obligations of each
party thereto other than the Depositor, and (iv) that the Eximbank
Guarantee Agreement constitutes the legal, valid, binding and en
forceable obligation of each party thereto other than Eximbank.
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the States of New
York and the General Corporation Law of the State of Delaware and the
United States of America to the extent specifically referred to there in.
(e) The General Counsel of Eximbank, shall have delivered to
the Trustee and the Underwriter an opinion, dated the Closing Date, to
the effect that:
(i) Eximbank is a validly organized body corporate and
agency of the United States of America for the purposes of this
transaction with power and authority set forth in the Export-Import
Bank Act of 1945, as amended, to enter into the Eximbank Guarantee
Agreement in its capacity as guarantor of the principal of and
interest on the Promissory Note, to endorse the Guarantee Legend on
the Promissory Note and to issue Eximbank Payment Certificates with
respect to the Promissory Note;
(ii) The Eximbank Guarantee Agreement has been duly and
validly authorized, executed and delivered by Eximbank and
constitutes a legal, valid and binding agreement of Eximbank;
(iii) The endorsement of the Guarantee Legend on the
Promissory Note has been duly and validly authorized by Eximbank
and such Guarantee Legend has been endorsed on the Promissory Note
issued by the Borrower and Eximbank's Guarantee of payment of the
principal of and interest on such Promissory Note will be a legal,
valid and binding undertaking of Eximbank in accordance with the
terms of the Eximbank Guarantee Agreement, and such Guarantee will
be backed by the full faith and credit of the United States of
America; and
(iv) The issuance of an Eximbank Payment Certificate
with respect to the Promissory Note has been duly and validly
authorized by Eximbank and, when such Eximbank Payment Certificate
is issued by Eximbank pursuant to the terms of the Eximbank
Guarantee Agreement, Eximbank's payment obligation on such Eximbank
Payment Certificate will be a legal, valid and binding undertaking
of Eximbank in accordance with its terms, and such payment obligation
will be backed by the full faith and credit of the United
States of America.
(f) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxxx & Xxxxxx, special counsel for the Trustee, to the
effect that:
(i) The Trustee is a national banking association
validly existing under the laws of the United States, and has the
requisite power and authority to deliver, and to perform all of
its obli gations under, the Declaration and the Liquidity
Reimbursement Agreement.
(ii) The Declaration has been duly authorized,
executed and delivered by the Trustee and constitutes a legal,
valid and binding agreement of the Trustee, enforceable against the
Trustee in accordance with its terms, except as such enforce ability
may be limited by bankruptcy, insolvency, receivership, conservatorship,
liquidation, reorganization, moratorium or other similar laws
affecting the enforcement of rights of creditors of national
banking associations generally, and the application of general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iii) The Liquidity Reimbursement Agree ment has been
duly authorized, executed and deliv ered by the Trustee and
constitutes a legal, valid and binding agreement of the Trustee,
enforceable against the Trustee in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, receivership, conservator ship, liquidation,
reorganization, moratorium or other similar laws affecting the
enforcement of rights of creditors of national banking associations
generally, and the application of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) The Certificates have been duly executed,
authenticated and delivered by the Trust ee.
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the States of New
York and the United States of America.
(g) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special United
States counsel for the Lender, to the effect that:
(i) The Lender is validly existing as a banking
association organized under the laws of the United States, and has
the power and authority (cor porate and other) to enter into, and
to take all action required of it under the Transfer Agreement.
(ii) The Transfer Agreement has been duly authorized,
executed and delivered by the Lender and constitute a valid and
binding agreement of the Lender, enforceable against the Lender in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, receivership, conservatorship,
liquidation, reorganization, xxxx torium or other similar laws
affecting the enforcement of rights of creditors of national banking
associations generally, and the application of general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the States of New
York and the United States of America to the extent specifically referred
to there in.
(h) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special United
States counsel for the Liquidity Provider, to the effect that:
(i) The Liquidity Provider is validly existing as a
national banking association organized under the laws of the United
States, and has the power and authority (corporate and other) to
enter into, and to take all action required of it under, the Letter
Agreement and the Liquidity Reimbursement Agreement.
(ii) The Liquidity Reimbursement Agree ment has been
duly authorized, executed and delivered by the Liquidity Provider
and constitutes a valid and binding agreement of the Liquidity
Provid er, enforceable against the Liquidity Provider in accordance
with its terms, except to the extent that enforcement thereof may
be limited by (a) bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium or other similar laws
now or hereafter in effect relating to rights of credi tors' of
national banking associations generally, and (b) general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
(iii) The execution, delivery and performance by the
Liquidity Provider of the Liquidity Reimbursement Agreement do not
contravene the articles of association or by-laws of the Liquidity
Provider.
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the States of New
York and the United States of America to the extent specifically referred
to there in.
(i) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxx & Xxxxxxx, spe cial Bahamas counsel for the
Liquidity Provider, to the effect that:
(i) Citibank, N.A. (the "Bank") is duly li censed by the
appropriate governmental authority of the Bahamas to maintain a
branch office in Nassau, Bahamas and is validly existing as a
foreign banking organization under the laws of the Bahamas and has
all the powers of a foreign branch as specified under the
applicable banking law of the Bahamas (including, without
limitation, the power to enter into and perform under liquidity
facilities such as the Liquidity Reimbursement Agreement), and is
autho rized to transact business in the Bahamas.
(ii) To the best of the knowledge of such counsel, no
authorization, consent or approval of or by Bahamian governmental
authority is necessary for the execution, delivery and performance
by the Bank of the Liquidity Reimbursement Agreement, except such
authorizations, consents and approvals as are in full force and
effect.
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the Bahamas.
(j) The Underwriter shall have received an opinion, dated the
Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel for the Underwriter, with respect to the issuance and sale of the
Certificates, the Registration Statement, the Prospectus, the
Declaration, the Eximbank Guarantee Agreement and such other related
matters as the Underwriter may reasonably require, and the Depositor
shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass on such
matters.
(k) If any counsel specified above are re quired to deliver
an opinion to Moody's Investors Ser vice, Inc. ("Moodys") or Standard &
Poor's Ratings Group ("S&P") in connection with their rating of the
Certificates, the Underwriter shall have received letters, dated the
Closing Date, from such counsel stating that the Underwriter and the
Borrower are authorized to rely on such opinions as though they were
addressed to the Under writer and the Borrower.
(l) The Certificates shall be rated "Aaa" by Moody's and
"AAA" by S&P, and neither Moody's nor S&P shall have placed the
Certificates under review with possible negative implications.
(m) Subsequent to the date hereof or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive
of any amendment thereto) and the Prospectus (exclusive of any supplement
thereto), there shall not have been any change, or any development
involving a prospective change, in or affect ing the business or
properties of the Trust or the Bor rower the effect of which, in any case
referred to above, is, in the sole judgment of the Underwriter, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or the delivery of the Certificates as contemplated by
the Registration Statement (exclusive of any amendment thereto) and the
Prospectus (exclusive of any supplement thereto).
(n) The Depositor shall have furnished to the Underwriter a
certificate of the Depositor, signed by its principal executive,
financial or accounting officer, dated the Closing Date, to the effect
that the signer of such certificate has carefully examined the
Registration Statement, the Prospectus, any supplement to the Prospec tus
and this Agreement and that:
(i) the representations and warranties of the Depositor
in this Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date (except to
the extent they expressly relate to an earlier date) and the
Depositor has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior
to the Closing Date; and
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of the Depositor's
knowledge, threatened.
(o) The Borrower shall have furnished to the Underwriter and
the Depositor a certificate signed by its principal executive, financial
or accounting officer, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined this Agreement and the
representations and warranties of the Borrower in this Agreement are true
and correct on and as of the Closing Date with the same effect as if made
on the Closing Date (except to the extent they expressly relate to an
earlier date) and the Borrower has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at
or prior to the Closing Date.
(p) On or before the Closing Date, the Under writer and the
special counsel for the Underwriter shall have received such further
certificates, documents or other information as they may have reasonably
requested from the Borrower.
If any of the conditions specified in this Section 7 shall
not have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions or certificates mentioned above
or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Underwriter and
special counsel for the Underwriter, this Agreement and all obligations
of the Underwriter hereunder may be canceled at, or at any time prior to,
the Closing Date by the Underwriter. Notice of such can cellation shall
be given to the Trust, the Depositor and the Borrower in writing or by
telephone, facsimile trans mission or telegraph confirmed in writing. The
Depositor shall furnish to the Underwriter such conformed copies of such
opinions, certificates, letters and documents in such quantities as the
Underwriter and special counsel for the Underwriter shall reasonably
request.
SECTION 8. Indemnification and Contribution.
(a) The Borrower agrees to indemnify and hold harmless the
Underwriter, the Depositor, each of the directors of the Depositor, each
of the officers of the Depositor who signed the Registration Statement
and each person, if any, who controls the Underwriter or the Depositor
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter, the Depositor, such director, officer or such
controlling person may become subject under the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or otherwise,
insofar as such losses, claims, damages or liabilities (or actions, suits
or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any registration statement filed with the Commission with
respect to the Certificates or any amendment thereto or any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto or
the omission or alleged omission to state in such registration statement
or any amendment thereto, any Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse, as incurred, the Underwriter, the
Depositor, each such director and officer and each such controlling
person for any legal or other expenses reasonably incurred by the
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection
with any such loss, claim, damage, liability or action in respect
thereof, provided, however, that the Borrower will be liable in any such
case to the extent, and only to the extent, that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto (a)
under the captions entitled "The Promissory Note", the second paragraph
of "Use of Proceeds", "The Liquidity Facility", "The Borrower", "Certain
Foreign Taxes", "The Promissory Notes", "The Credit Agreements" or
"The Liquidity Facilities", or the corre sponding portions of any
prospectus summary, or (b) in reliance upon and in conformity with
written information furnished to the Depositor or the Underwriter by the
Borrower specifically for use therein, and provided, fur ther, that the
Borrower will not be liable to the Underwriter, any director, officer,
employee or agent of the Underwriter or any person controlling the
Underwriter with respect to any such untrue statement or omission made in
any Preliminary Prospectus if the person asserting any such loss, claim,
damage or liability purchased Certificates from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented),
other than the documents incorporated by reference therein, at or prior
to the written confirmation of the sale of such Certificates to such
person in any case where such delivery of the Prospectus (as amended or
supplemented) is required by the Act and the untrue statement or alleged
untrue statement of a material fact, or the omission or alleged omission
to state a material fact, that is found to be or is alleged to be the
basis of liability in such Preliminary Prospectus was corrected in the
Prospectus as amended or supplemented. This indemnity agreement will be
in addition to any liability which the Borrower may otherwise have. The
Borrower will not, without the prior written consent of the Underwriter
and the Depositor, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or
not such Underwriter, the Depositor, any director, officer of the
Depositor or any person who controls such Underwriter or the Depositor
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of
such Underwriter, the Depositor, each such director, officer, employee
and agent of such Underwriter and the Depositor, and each such
controlling person from all liability arising from such claim, action,
suit or proceeding.
(b) The Underwriter will indemnify and hold harmless the
Depositor, each of its directors and each of its officers who signed the
Registration Statement, the Borrower and each person, if any, who
controls the Depositor or the Borrower within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities to which either of the Depositor or the Borrower
or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions, suits or proceedings in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue state ment of any material fact contained in any
registration statement filed with the Commission with respect to the
Certificates or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supple ment thereto, or the omission or
the alleged omission to state therein a material fact required to be
stated in such registration statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or necessary to make the state ments therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information
furnished to the Depositor or the Borrower by the Underwriter
specifically for use therein; and, sub ject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Depositor or the Borrower or
any such director, officer or controlling person in connection with
investigating or defending or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or any action in
respect thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party (i) will
not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or
(b) above. In case any such action is brought against any indemnified
party, and it notifies the indem nifying party of the commencement
thereof, the indemnify ing party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be one or more legal defenses available to it
and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such action on behalf
of such indemnified party or par ties and such indemnified party or
parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. After notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of
counsel ap pointed to defend such action, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or
other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such
action the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) in any one
action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or
circumstances, designated by the Underwriter in the case of paragraph (a)
of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such
notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the
consent of the indemnifying party (which consent shall not, in light of
such action and the defenses available to the indemnified party, be
unreasonably withheld), unless such indemnified party waived its rights
under this Section 8 in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 8 is unavailable
or insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party
on the other from the offering of the Certificates or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative
fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in con nection with the statements or
omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof).
The relative benefits received by the Borrower on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion as
the total proceeds from the offering (net of underwriting commissions but
before deducting expenses) received by the Borrower in the form of the
loan evidenced by the Promissory Note bear to the total underwriting
discounts and commissions received by the Underwriter. There shall be no
deemed benefits received by the Depositor. The relative fault of the
parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omis sion to state a material fact relates to
information supplied by the Borrower or the Underwriter, the parties'
relative intents, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. Each of the Borrower
and the Underwriter agrees that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to in the first sentence of this
paragraph (d). Notwithstanding any other provision of this paragraph (d),
the Underwriter shall not be obligated to make contributions hereunder
that in the aggregate exceed the total offering price of the Certificates
purchased by the Underwriter under this Agreement, less the aggregate
amount of any damages that the Underwriter has otherwise been required to
pay in respect of the same or any substantially similar claim, and no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudu lent misrepresentation. For
purposes of this paragraph (d), each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the
Underwriter.
SECTION 9. Survival. The respective representations,
warranties, agreements, covenants, indemnities and other statements of
the Depositor, the directors and officers of the Depositor, the Borrower,
and the Underwriter set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on
behalf of either of the Depositor, the Borrower, the Underwriter, any of
direc tors or officers of the Depositor or any controlling person
referred to in Section 8 hereof, and (ii) delivery of and payment for the
Certificates. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full
force and effect, regardless of any termination or can cellation of this
Agreement.
SECTION 10. Termination.
(a) This Agreement may be terminated in the sole discretion
of the Underwriter by notice to the Depositor and the Borrower given
prior to the delivery and payment for the Certificates, if at or prior to
the delivery and payment for the Certificates:
(i) trading in securities generally on the New York
Stock Exchange shall have been suspended or minimum or maximum
prices shall have been established on such exchange;
(ii) a general banking moratorium shall have been
declared by New York or United States authorities; or
(iii) there shall have been an outbreak or escalation
of hostilities or any other calamity or crisis having an effect on
the financial markets or the market for the Certificates and other
similar securities that, in the sole judgment of the Under writer,
makes it impracticable to proceed with the offering or the delivery
of the Certificates as contemplated by the Registration Statement,
as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as
provided in Section 9 here of.
SECTION 11. Information Supplied By Underwriter. The
statements set forth in the last paragraph on the front cover page, the
second paragraph on the inside cover page and the second, third and
fourth sentences of the first paragraph, the second sentence of the
second paragraph and the third, fifth and sixth paragraphs under the
heading "Underwriting" in any Preliminary Prospectus or the Prospectus
(to the extent such statements relate to the Underwriter) constitute the
only information fur nished by the Underwriter to the Depositor or the
Borrower for the purposes of Sections 1(a)(ii) and 8 hereof. The
Underwriter confirms that such statements under the heading
"Underwriting" in the Prospectus (to such extent) are correct.
SECTION 12. Notices. Notice given pursuant to any of the
provisions of this Agreement shall be in writing and shall be mailed or
delivered (a) to the Depositor at:
Citicorp North America, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X. Xxxxxx Xxxxxx, Esq.
or (b) to the Borrower at:
Empresa Colombiana de Petroleos
Santa Fe de Bogota, Colombia
Attention: Xxxxx Xxxxxxxxxx Xxxxx
with a copy to:
Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
or (c) to the Underwriter at:
Citicorp Securities, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Securitization Unit
with a copy to:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
Vice President
Any notice given hereunder may be made by telecopier,
telephone or telegraph, but if so made shall be subsequently confirmed in
writing.
SECTION 13. Successors. This Agreement shall inure to the
benefit of and shall be binding upon the Underwriter, the Depositor, the
Borrower and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the
indemnities of the Borrower contained in Section 8 of this Agreement
shall also be for the benefit of the directors of the Depositor and the
officers of the Depositor who have signed the Registration Statement and
any person or persons who control the Depositor or the Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and (ii) the indemnities of the Underwriter contained in Section 8 of
this Agreement shall also be for the benefit of the directors of the
Depositor and the officers of the Depositor who have signed the
Registration Statement and any person or persons who control the
Depositor or the Borrower within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of Certificates from the
Underwriter shall be deemed a successor because of such purchase.
SECTION 14. Submission to Jurisdiction and Service of
Process. The Borrower irrevocably agrees that any legal action or
proceeding arising out of or relating to this Agreement, may be
instituted in the United States of America in any federal or State court
sitting in the State of New York and the Borrower, in respect of itself
and its properties and revenues, irrevocably submits to the non-exclusive
jurisdiction of these courts in any such action or proceeding. The
Borrower irrevocably waives any objection it may have now or hereafter to
the laying of venue of any such legal action or proceeding in any federal
or State court sitting in the Borough of Manhattan of The City and State
of New York and any claim that such legal action or proceeding has been
brought in an inconvenient forum. The Borrower irrevocably appoints CT
Corporation System,whose office is currently at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Xxxxxx Xxxxxx xx Xxxxxxx, as its agent to receive on
behalf of itself and its properties and revenues service of process in
these jurisdictions in any such action or proceeding. The Borrower also
irrevocably consents to such service upon it by the mailing of copies
thereof by U.S. air mail or courier to the Borrower at its address set
forth in Section 12 hereof. The foregoing provisions shall not limit the
rights of the Underwriter to bring any such action or proceedings or to
obtain execution on any judgment rendered in any such action or
proceeding in any other appropriate jurisdiction or in any other manner
provided by law. The Borrower agrees that final judgment against it in
any legal action or proceeding arising out of or relating to this
Agreement, the Promissory Note or the Credit Agreement shall be
conclusive and may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified or
exemplified copy of which judgment shall be conclusive evidence thereof
and of the amount of its indebtedness, or by such other means provided by
law. The Borrower represents and warrants that the courts of the Republic
of Colombia would give effect to and enforce a judgment obtained outside
the Republic of Colombia through a procedural system provied for under
Colombian law known as "exequator" subject to the provisions of Article
693 of the Colombian Civil Procedure Code.
SECTION 15. Waiver of Sovereign Immunity. The Borrower
acknowledges and agrees that the activities contemplated by the
provisions of this Agreement are commercial in nature rather than
governmental or public, and therefore acknowledges and agrees that it is
not entitled to any right of immunity on the grounds of sovereignty or
otherwise with respect to such activities or in any legal action or
proceeding arising out of or relating to this Agreement, in respect of
itself and its properties and revenued, expressly and irrevocably waives
any such right of immunity which may now or hereafter exist (including
any immunity from any legal process, from the jurisdiction of any court
or from any execution or attachment in aid of execution prior to judgment
or otherwise) or claim thereto which may now or hereafter exist, and
agrees not to assert any such right or claim in any such action or
proceeding, whether in the United States of America or otherwise.
SECTION 16. APPLICABLE LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION
OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS
OF LAWS, EXCEPT THAT ALL MATTERS CONCERNING THE EXECUTION AND DELIVERY BY
THE BORROWER OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF COLOMBIA.
SECTION 17. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Depositor and the Borrower a
counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriter, the
Depositor and the Borrower in accordance with its terms.
Very truly yours,
CITICORP NORTH AMERICA, INC.,
as Depositor
By:------------------------------------
Name:
Title:
EMPRESA COLOMBIANA DE PETROLEOS
By:------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
CITICORP SECURITIES, INC.
By: _________________________________
Name:
Title:
