1
EXHIBIT 10.71
Form 234 KGT 12-85 (Second Revised) NS
OPIC Contract of Insurance No. E578
OVERSEAS PRIVATE INVESTMENT CORPORATION
CONTRACT OF INSURANCE
Against
Inconvertibility
Expropriation
Political Violence
as defined below,
between the Overseas Private Investment Corporation ("OPIC") and
Pioneer Omega, Inc.
c/o The Pioneer Group, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
a corporation organized and existing under the laws of the State
of Delaware, investing through one or more of its wholly-
owned U.S. subsidiaries
(the "Investor").
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TABLE OF CONTENTS
Title Page
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Article I - Subject of Insurance and Exchange of Promises
1.01 Subject .......................................................I-1
1.02 Promises ......................................................I-2
1.03 Maximum Aggregate Compensation ................................I-2
1.04 Full Faith and Credit .........................................I-2
1.05 Term ..........................................................I-2
1.06 Premiums and Active Amount Elections ..........................I-2
1.07 Administrative Fee ............................................I-3
Article II - Inconvertibility - Scope of Coverage*
2.01 Inconvertibility of Local Currency ...........................II-1
2.02 Exclusions ...................................................II-1
Article III- Inconvertibility- Amount of Compensation*
3.01 Rate of Compensation for Inconvertibility ...................III-1
3.02 Limitation ..................................................III-1
Article IV - Expropriation - Scope of Coverage*
4.01 Total Expropriation ..........................................IV-1
4.02 Expropriation of Funds .......................................IV-1
4.03 Provocation Exclusion ........................................IV-1
Article V - Expropriation - Amount of Compensation*
5.01 Total Expropriation ...........................................V-1
5.02 Expropriation of Funds ........................................V-1
5.03 Adjustments ...................................................X-x
5.04 Limitations ...................................................V-2
Article VI - Political Violence - Scope of Coverage*
6.01 Loss Due to Political Violence ...............................VI-1
6.02 Exclusions ...................................................VI-1
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* This Table of Contents applies to all coverages offered by OPIC whether or
not all of those coverages are provided in this contract.
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Title Page
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Article VII - Political Violence - Amount of Compensation*
7.01 Basis of Compensation .......................................VII-1
7.02 Limitations .................................................VII-1
7.03 Investor's Share ............................................VII-2
7.04 Book Value of Insured Investment ............................VII-2
7.05 Appraisal ...................................................VII-3
7.06 Estimated Compensation ......................................VII-3
Article VIII - Procedures
8.01 Application for Compensation ...............................VIII-1
8.02 Assignment to OPIC .........................................VIII-1
8.03 Security ...................................................VIII-2
8.04 Excess Salvage Value .......................................VIII-2
8.05 Arbitration ................................................VIII-2
8.06 Election of Active Amounts and Coverage Ceilings ...........VIII-3
8.07 Termination ................................................VIII-3
8.08 Legal and Miscellaneous ....................................VIII-3
8.09 Notices ....................................................VIII-3
8.10 Refund of Premiums .........................................VIII-3
Article IX - Investor's Duties
9.01 Duties .......................................................IX-1
9.02 Default ......................................................IX-3
9.03 Non-Waiver ...................................................IX-3
9.04 Cure .........................................................IX-3
Article X - Amendments ...................................................X-1
-ii-
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I-1
Article I - Subject of Insurance and Exchange of Promises.
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1.01 SUBJECT.
1. INVESTMENT. The Investor promises that the Investor contributed
or will contribute
(a) $3,921,569 in United States dollars through its wholly-owned
U.S. subsidiary Luscinia, Inc.; and
(b) $6,078,431 in United States dollars through its wholly-owned
U.S. subsidiary Theta Enterprises, Inc.,
to
Open Joint Stock Company
Specialized Closed Check Investment Privatization Fund
"First Investment Voucher Fund"
Trubnikovsky Xxxxxxxx 00/0
Xxxxxx, Xxxxxx
an open joint stock company organized under the laws of Russia
(the "foreign enterprise")
for which the Investor has acquired or will acquire
(c) with respect to the investment component described in (a)
above, 10,980,000 common registered shares, each such share
consisting of 10 shares representing a 20 percent ownership
interest in the foreign enterprise; and
(d) with respect to the investment component described in (b)
above, 17,020,000 common registered shares, each such share
consisting of l0 shares, representing a 31 percent ownership
interest in the foreign enterprise
(together, "the investment").
Ninety percent of each of these interests acquired by the Investor is insured
under this contract (the "insured investment").
2. PROJECT. The investment will be applied to a voucher investment
fund in Moscow, Russia
(the "project").
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I-2
3. "Foreign governing" authority means the governmental authority(ies) in
effective control in all or part of Russia.
1.02 PROMISES.
OPIC promises that if acts occur during the term of this contact which
satisfy the requirements for coverage in Article II, IV or VI, OPIC will pay the
Investor the amount of compensation provided in Article III, V or VII, in
accordance with the procedures in Article VIII.
The Investor promises to comply with the duties in Article IX. If the
Investor violates any of those duties, the Investor may lose rights, including
the right to compensation.
Amendments to Articles I through IX may be contained in Article X.
1.03 MAXIMUM AGGREGATE COMPENSATION.
OPIC will not pay compensation under this contract in an aggregate
amount that exceeds $54,000,000.
1.04 FULL FAITH AND CREDIT.
The full faith and credit of the United States of America is pledged to
secure the full payment by OPIC of its obligations under this contract.
1.05 TERM.
This contract shall enter into force on the date it has been signed by
OPIC and the Investor and shall terminate 20 years afterward unless terminated
earlier (sec.8.07; sec.9.02).
1.06 PREMIUMS AND ACTIVE AMOUNT ELECTIONS.
The Investor shall elect amounts of coverage (sec.8.06) and pay premiums
on or before each annual anniversary of the effective date of the contract.
The coverages and premiums for the first period shall be as follows:
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I-3
Inconvertibility Expropriation Political Violence
---------------- ------------- ------------------
Coverage Ceiling $4,000,000 $54,000,000 $15,000,000
Active Amount $4,000,000 $18,200,000 $15,000,000
Premium Rate is x 0.40000% x 0.74000% x 0.63000%
----------- ------------ ------------
Total premium is: $16,000.00 + $134,680.00 + $94,500.00 = $245,180.00
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1.07 ADMINISTRATIVE FEE. The Investor will pay an annual fee for contract
administration of 0.25% of the Investment amount (sec.1.01.1) on or before the
contract effective date and on or before each annual anniversary of the contract
effective date, but only if the administrative fee exceeds the premium due for
the contract for that period. If the administrative fee exceeds the premium due
for that period, the premium will be waived.
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II-1
Article II - Inconvertibility - Scope of Coverage.
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2.01 INCONVERTIBILITY OF LOCAL CURRENCY. Local currency shall be deemed
inconvertible and compensation shall be payable, subject to the exclusions
(sec.2.02) and limitation (sec.3.02), if neither the Investor nor the foreign
enterprise is able legally
(a) to convert earnings from or returns of the insured investment into
United States dollars through any channel during the 180 days immediately
prior to a claim to OPIC, except at an exchange rate that is less
favorable than the then-prevailing exchange rate described under
sec.3.01.2, or
(b) to transfer such converted earnings to the United States during such
period.
2.02 EXCLUSIONS. No compensation for inconvertibility shall be payable if
(a) PRE-EXISTING RESTRICTIONS.
(1) An investor in comparable circumstances would have been unable
legally (a) to convert local currency into United States dollars
on the date of this contract or (b) to transfer such dollars to
the United States on the date of this contract; and
(2) The Investor knew or should have known about the restriction;
or
(b) INVESTOR DILIGENCE. The Investor has not made all reasonable
efforts to convert the local currency into United States dollars or to
transfer such dollars to the United States through all direct and
indirect legal mechanisms reasonably available; or
(c) RECONVERSIONS. The local currency represents funds which were
previously converted into another currency; or
(d) PROVOCATION. The preponderant cause is unreasonable action
attributable to the Investor, including corrupt practices.
(e) USE RESTRICTED BY EXPROPRIATION. The use of such local currency is
restricted by an expropriatory action (sec.4.02).
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III-1
Article III - Inconvertibility - Amount of Compensation.
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3.01 RATE OF COMPENSATION FOR INCONVERTIBILITY.
1. DATE. If the requirements of inconvertibility are satisfied (Article
II), subject to the limitation (sec.3.02), OPIC shall pay compensation
(a) against prior delivery of the inconvertible local currency, or
(b) if the Investor is unable legally to deliver the local currency or
if OPIC so requests, against prior assignment of the Investor's right
to receive the payment that is the subject of the claim.
If the Investor delivers local currency or an assignment of rights denominated
in local currency, compensation shall be the United States dollar equivalent of
the local currency at the exchange rate in effect 0 days before OPIC receives
the completed application for compensation.
If the Investor delivers an assignment of rights denominated in United States
dollars, compensation shall be the United States dollar amount of the rights so
assigned.
2. EXCHANGE RATE.
(a) The exchange rate shall be the official exchange rate applicable
to the type of remittance involved.
(b) If, however,
(1) United States dollars were not generally available at the
applicable official exchange rate; and
(2) exchanges of local currency for United States dollars were
effected legally and customarily through another channel;
then the exchange rate shall be the effective rate obtained through
that channel.
(c) In either case, the exchange rate shall be net of all deductions
for governmentally imposed charges, such as taxes and commissions.
3.02 LIMITATION. Compensation shall not exceed the Active Amount (sec.8.06) in
effect 180 days before OPIC receives xxx application for compensation.
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IV-1
Article IV - Expropriation - Scope of Coverage.
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4.01 TOTAL EXPROPRIATION. Compensation is payable for total expropriation
(sec.5.01), subject to the exclusions (sec.4.03) and limitations (sec.5.04), if
an act or series of acts satisfies all of the following requirements:
(a) the acts are attributable to a foreign governing authority which is
in DE FACTO control of the part of the country in which the project is
located;
(b) the acts are violations of international law (without regard to the
availability of local remedies) or material breaches of local law;
(c) the acts directly deprive the Investor of fundamental rights in the
insured investment (Rights are "fundamental" if without them the Investor
is substantially deprived of the benefits of the investment.); and
(d) the violations of law are not remedied (sec.9.01.9) and the
expropriatory effect continues for six months.
4.02 EXPROPRIATION OF FUNDS. Compensation is payable for an expropriation of
funds that constitute a return of the insured investment or earnings on the
insured investment (sec.5.02) if an act or series of acts
(a) satisfies the governmental action, illegality and duration
requirements (sec.4.01(a), (b) and (d)); and
(b) directly results in preventing the Investor from
(1) repatriating the funds; and
(2) effectively controlling the funds in the country in which the
project is located.
4.03 EXCLUSIONS. Nocompensation for expropriation shall be payable it
(a) PROVOCATION. The preponderant cause is unreasonable action
attributable to the Investor, including corrupt practices.
(b) GOVERNMENT ACTION. The action is taken by the foreign governing
authority in its capacity or through its powers as a purchaser,
supplier, creditor, shareholder, director or manager of the foreign
enterprise.
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V-1
Article V - Expropriation - Amount of Compensation.
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5.01 TOTAL EXPROPRIATION. For total expropriation (sec.4.01), OPIC shall pay
compensation in United States dollars in the amount of the book value of the
insured investment, subject to adjustments (sec.5.03) and limitations
(sec.5.04).
Compensation is computed as of the date the expropriatory effect
commences (sec.4.01(c)) and is based on financial statements maintained in
accordance with sec.9.01.6 for the foreign enterprise. However, OPIC may
(1) conform the financial statements to principles of accounting
generally accepted in the United States; and
(2) make adjustments ((sec.)5.03).
OPIC shall be bound by the Investor's choice among generally accepted accounting
principles, if the choice is consistent with the Investor's own accounting,
unless such choice results in a substantial overstatement of the fair market
value of the insured investment or the foreign enterprise as an independent
entity.
5.02 EXPROPRIATION OF FUNDS. For expropriation of funds (sec.4.02), OPIC shall
pay compensation in the amount of the United States dollar equivalent of the
expropriated funds at the exchange rate determined in accordance with
sec.3.01.2, computed as of the date the expropriation begins. Compensation for
expropriation of funds shall be subject to the adjustments and limitations
(sec.5.03 and sec.5.04).
5.03 ADJUSTMENTS.
1. INVESTMENTS OF PROPERTY. Non-cash items contributed as part of the
investment shall be adjusted if necessary to reflect the fair market value of
the items furnished at the time of contribution to the project, plus freight,
installation and other reasonable direct costs incurred in furnishing the items
to the project.
2. NON-INSURED CONTRIBUTION. Any direct or indirect contribution (and
retained earnings thereon) by the Investor after the insured investment is made
shall be deducted from the book value of the foreign enterprise.
3. SPECIAL ACCOUNTING RULES. Dealings among related parties shall be
adjusted if necessary to reflect transactions as they would have occurred had
they been at arm's length, and forgiveness of obligations shall be disregarded.
Each entity shall be accounted for as if it were a separate person for income
tax purposes, and the effect of tax shifting arrangements shall be disregarded.
Obsolescence or
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V-2
permanent reduction in recoverable values shall be recognized by adjusting the
book value of assets to realizable value. OPIC may adjust financial statements
to reflect the effect of events that occur before the expropriatory effect
commences, such as events of loss which are later confirmed.
4. OTHER COMPENSATION AND RETAINED PROPERTY. OPIC may reduce compensation
by the amount of
(a) compensation received from other sources on account of the loss
(excluding compensation payable under other insurance policies, except to
the extent necessary to prevent the Investor from recovering more than
the amount of the loss as recognized under any of the policies under
which compensation is due, without regard to policy limits); and
(b) the book value of commercially viable property which remains subject
to the Investor's effective disposition and control after the
expropriatory effect commences (unless OPIC requires the Investor to
assign the property (sec.8.02)); and
(c) any obligation the Investor is relieved of by the expropriation.
The reduction shall be proportionate to the extent that these items are
attributable to the insured investment.
5. START-UP EXPENSES. If the book value of the insured investment of a
new foreign enterprise in the development stage is less than the insured amount
originally contributed, the accumulated loss will be disregarded if
(a) the foreign enterprise is newly formed for the principal purpose of
undertaking the project,
(b) the foreign enterprise is a going concern as of the date the
expropriatory effect commences,
(c) that date is within three years of the date this contract is issued,
and
(d) it is clear that no adjustment to book value is necessary by reason
obsolescence or permanent reduction in recoverable values of productive
facilities or assets.
5.04 LIMITATIONS. Compensation shall not exceed any of the following
limitations:
(a) ACTIVE AMOUNT. The Active Amount (sec.8.06) on the date the
expropriatory effect commences;
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(b) INSOLVENCY. If the liabilities of the foreign enterprise exceed its
assets as of the date the expropriatory effect commences, the amount that
the Investor would have been entitled to receive in insolvency
proceedings with respect to the insured investment if assets had been
liquidated at book value on that date;
(c) SELF-INSURANCE. The maximum amount which could be received by the
Investor from OPIC without breaching sec.9.01.3.
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VI-1
Article VI - Political Violence - Scope of Coverage.
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6.01 LOSS DUE TO POLITICAL VIOLENCE. Compensation is payable, subject to the
exclusions (sec.6.02) and limitations (sec.7.02), if political violence is the
direct and immediate cause of the permanent loss (including loss of value by
damage or destruction) of tangible property of the foreign enterprise used for
the project.
"Political violence" means a violent act undertaken with the primary
intent of achieving a political objective, such as declared or undeclared
war, hostile action by national or international armed forces, civil war,
revolution, insurrection, civil strife, terrorism or sabotage. However.
acts undertaken primarily to achieve labor or student objectives are not
covered.
6.02 EXCLUSIONS. No compensation for political violence shall be payable
(a) EXCLUDED PROPERTY. For loss of precious metals, gems, works of art,
money or documents;
(b) MINIMUM LOSS. If the amount of compensation payable would be less
than $5,000;
(c) REASONABLE PROTECTIVE MEASURES. If the loss results from the failure
to take reasonable measures to protect or preserve the property; or
(d) PROVOCATION. If the preponderant cause of the loss is unreasonable
action attributable to the Investor, including corrupt practices.
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VII-1
Article VII - Political Violence - Amount of Compensation.
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7.01 BASIS OF COMPENSATION. If the requirements of Article VI are satisfied,
and subject to the limitations (sec.7.02), OPIC shall pay compensation for a
loss in United States dollars in the amount of
(a) ADJUSTED COST. Adjusted cost is the Investor's share (sec.7.03) of
the lowest of
(1) the original cost;
(2) fair market value; or
(3) the reasonable cost of repair;
less anything of value received by the Investor on account of the
property lost and less the Investor's share of any such receipts by the
foreign enterprise; or
(b) REPLACEMENT COST. If the Investor so elects, OPIC will pay the
reasonable cost to repair any item of lost property or to replace it with
equivalent new property, less anything of value received by the Investor
or the foreign enterprise on account of the property lost. Such
compensation shall not exceed 200% of the original cost of the item. To
receive such compensation, the Investor must repair or replace the lost
property to the project within three years of the loss.
OPIC shall not reduce the compensation payable under subsections (a) or (b)
above by the amount of compensation payable under other insurance policies on
account of the property lost, except to the extent necessary to prevent the
Investor from recovering more than the amount of the loss as recognized under
any of the policies under which compensation is due, without regard to policy
limits.
7.02 LIMITATIONS. Compensation shall not exceed any of the following
limitations:
(a) ACTIVE AMOUNT. The Active Amount (sec.8.06) on the date of the loss.
(b) SELF-INSURANCE. The maximum amount which could be recovered by the
Investor from OPIC without breaching sec.9.01.3.
(c) AGGREGATE ADJUSTED COST COMPENSATION. Aggregate compensation for
property compensated at adjusted cost shall not exceed the book value of
the insured investment (sec.7.04) at the time of loss.
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7.03 INVESTOR'S SHARE. "Investor's share" means the ratio that the equity
owned by the Investor bears to the total equity of the foreign enterprise.
7.04 BOOK VALUE OF INSURED INVESTMENT.
(a) BOOK VALUE. Book value is based on financial statements maintained by
the Investor in accordance with sec.9.01.6 for the foreign enterprise.
However, OPIC may
(1) conform the financial statements to principles of accounting
generally accepted in the United States; and
(2) make adjustments (sec.7.04(b)).
OPIC shall be bound by the Investor's choice among generally accepted accounting
principles, if the choice is consistent with the Investor's own accounting,
unless such choice results in a substantial overstatement of the fair market
value of the insured investment or the foreign enterprise as an independent
entity.
(b) ADJUSTMENTS.
(1) INVESTMENTS OF PROPERTY. Non-cash items contributed to the
investment shall be adjusted if necessary to reflect the fair market
value of the items furnished at the time of contribution to the
project, plus freight, installation and other reasonable direct costs
incurred in furnishing the items to the project.
(2) NON-INSURED CONTRIBUTION. Any direct or indirect contribution
(and retained earnings thereon) by the Investor after the insured
investment is made shall be deducted from book value of the foreign
enterprise.
(3) SPECIAL ACCOUNTING RULES. Dealings among related parties shall be
adjusted if necessary to reflect transactions as they would have
occurred had they been at arm's length and forgiveness of
obligations shall be disregarded. Each entity shall be accounted for
as if it were a separate person for income tax purposes, and the
effect of tax shifting arrangements shall be disregarded.
Obsolescence or permanent reduction in recoverable values shall be
recognized by adjusting the book value of assets to realizable value.
OPIC may adjust financial statements to reflect the effect of events
that occur before the loss of property, such as events of loss which
are later confirmed.
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VII-3
(4) START-UP EXPENSES. If the book value of the insured investment of
a new foreign enterprise in the development stage is less than the
insured amount originally contributed, the accumulated loss will be
disregarded if
(a) the foreign enterprise is newly formed for the principal
purpose of undertaking the project,
(b) the foreign enterprise is a going concern as of the date of
the loss,
(c) that date is within three years of the date this contract is
issued, and
(d) it is clear that no adjustment to book value is necessary by
reason of obsolescence or permanent reduction in recoverable
values of productive facilities or assets.
(c) INSOLVENCY. If the liabilities of the enterprise exceed its assets as
of the date of the loss, book value of the insured investment shall not
exceed the amount that the Investor would have been entitled to receive
in insolvency proceedings with respect to the insured investment if
assets had been liquidated at book value on the day prior to the loss.
7.05 APPRAISAL. If OPIC determines that compensation is payable but OPIC and
the Investor are unable to agree on a question of valuation, either may demand
the appointment of an impartial appraiser. If the parties are unable to agree on
the appraiser, the appointment shall be made by the American Arbitration
Association. The appraiser's itemized appraisal shall be binding. Appraisal
costs shall be borne equally by OPIC and the Investor.
7.06 ESTIMATED COMPENSATION. If OPIC determines that compensation is payable
but conditions in the project country preclude reasonable efforts by OPIC to
determine the precise amount due, OPIC may pay estimated compensation based on
the information then available. OPIC may revise its estimate and recover any
excess or pay any additional amount due upon receipt of additional information.
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VIII-1
Article VIII - Procedures.
--------------------------
8.01 APPLICATION FOR COMPENSATION. An application for compensation shall
demonstrate the Investor's right to compensation in the amount claimed. The
Investor shall provide such additional information as OPIC may reasonably
require to evaluate the application. The Investor may amend or withdraw an
application for compensation at any time, but the right to recover compensation
will be lost for any acts covered by a withdrawn application.
(a) There is no time limit on application for inconvertibility
compensation (Article III); however, compensation shall not exceed the
Active Amount applicable in accordance with sec.3.02.
(b) An application for expropriation compensation (Article V) must be
filed within six months after the Investor has reason to believe that all
requirements of Article IV have been satisfied.
(c) A notice demonstrating the Investor's entitlement to political
violence compensation for loss of assets (Article VI) must be filed
within six months of the loss. The notice together with proof of the
amount of compensation due will be considered a completed application,
which must be filed within three years of the loss. The Investor may
request adjusted cost compensation (sec.7.0l(a)) and later amend the
application within three years of the loss to elect replacement cost
compensation (sec.7.0 l(b)).
(d) OPIC shall have a reasonable time in which to complete processing of
any application for compensation.
8.02 ASSIGNMENT TO OPIC. Within sixty days after OPIC notifies the Investor of
the amount of compensation OPIC will pay under expropriation or political
violence coverage, and concurrent with payment, the Investor shall transfer to
OPIC (a) for expropriation, all interests attributable to the insured investment
(sec.4.0l) or funds (sec.4.02) as of the date the expropriatory effect
commences, including claims arising out of the expropriation, or (b) for
political violence, claims arising out of the loss due to political violence
sec.6.01). The Investor shall transfer the interests and claims free and clear
of, and shall agree to indemnify OPIC against, claims, defenses, counterclaims,
rights of setoff and other encumbrances (except defenses relating to the
expropriation).
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VIII-2
In connection with an inconvertibility claim, immediately upon receipt of
instructions from OPIC together with notification that it intends to pay such
claim, the Investor shall deliver the local currency to OPIC by draft subject to
collection (or, at OPIC's option, in cash), or, if the Investor is unable
legally to deliver the local currency or if OPIC so requests, shall instead
deliver an assignment of the Investor's rights with respect to the payment that
is the subject of the claim.
OPIC may decline all or any portion of the Investor's interests or
claims; if so, the Investor's right to compensation shall be affected only as
provided in sec.5.03.4(b).
8.03 SECURITY. As a condition for paying compensation (including estimated
compensation (sec.7.06)) prior to a final determination of its liability, OPIC
may require the Investor to provide security, satisfactory to OPIC in its
reasonable judgment, for repayment pursuant to sec.9.02(b).
8.04 EXCESS SALVAGE VALUE. With respect to compensated expropriation and
political violence claims, OPIC shall pay to the Investor any amounts OPIC
realizes in United States dollars from the rights transferred (sec.8.02) in
excess of
(a) the compensation paid by OPIC; plus
(b) reasonable interest; plus
(c) OPIC's out-of-pocket expenses in maintaining and realizing funds from
the transferred property.
However, this provision shall not in any way restrict OPIC's discretion to deal
with the rights transferred. OPIC shall have no obligation to take action with
respect to the rights transferred and shall incur no liability to the Investor
for any actions taken or not taken after the transfer.
8.05 ARBITRATION. Any controversy relating to this contract shall be settled
by arbitration in Washington, D.C. according to the then prevailing Commercial
Arbitration Rules of the American Arbitration Association. Unless the Investor
initiates arbitration, OPIC's liability shall expire one year after OPIC
notifies the Investor of its determination concerning an application for
compensation. A decision by arbitrators shall be final and binding, and any
court having jurisdiction may enter judgment on it.
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VIII-3
8.06 ELECTION OF ACTIVE AMOUNTS AND COVERAGE CEILINGS. By prior notice to OPIC
effective as of the next due date for premiums (sec.1.06), the Investor may
increase or decrease the Active Amount for any coverage for the remainder of the
contract term, subject to the following limitations;
(a) Active Amount shall not exceed the Coverage Ceiling (sec.1.06);
(b) The Coverage Ceiling shall be reduced automatically by compensation
paid by OPIC; Active Amount shall also be reduced for the remainder of
the annual election period to which the claim relates (sec.3.02,
sec.5.04(a), or sec.7.02(a));
(c) For inconvertibility, expropriation, and political violence
coverages, Active Amount shall not be less than the lesser of book value
(sec.5.01) or the Coverage Ceiling for that coverage.
8.07 TERMINATION. The Investor may terminate this contract effective as of any
premium due date unless the premium is already paid. However, termination shall
not affect any rights or obligations of either party relating to prior periods.
8.08 LEGAL AND MISCELLANEOUS. This contract shall be governed by the law of
the District of Columbia, its conflict of law rules excepted. This contract
constitutes the complete agreement between the parties, superseding any prior
understandings. This contract may be modified, or its terms waived, only in
writing.
8.09 NOTICES. Notices must be in writing and shall be effective when received.
Notices may be given to the Investor at the address on the title page (unless
changed in writing), and to OPIC at
Overseas Private Investment Corporation
Washington, D.C. 20527
ATTENTION: Vice-President, Insurance.
8.10 REFUND OF PREMIUMS. Upon timely written request, OPIC will refund
premiums PRO RATA if
(a) excess coverage is elected while a valid claim for compensation is
pending; or
(b) the Investor becomes ineligible for coverage or ceases to hold all or
a portion of the insured investment, in which case any refund shall be
calculated from the later of (i) the date the Investor becomes ineligible
or ceases to hold the insured investment, or (ii) the date OPiC receives
such written request.
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IX-1
Article IX - Investor's Duties.
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9.01 DUTIES.
1. REPRESENTATIONS AND PROJECT EXECUTION. The Investor understands that
OPIC has issued this contract based on statutory policy goals (22 U.S.C.
sec.2191) as well as underwriting considerations. All statements made by the
Investor to OPIC in connection with this contract are true and complete, and
the investment and the project shall be carried out as described.
2. OWNERSHIP AND ELIGIBILITY. The Investor shall at all times remain the
beneficial owner of the insured investment and shall remain eligible for OPIC
insurance as
(a) a citizen of the United States; or
(b) a corporation or other association created under the laws of the
United States, its states or territories, of which more than 50% of both
the total interest and of each class of shares is beneficially owned by
citizens of the United States; or
(c) an entity created under foreign law in which a 95% interest is owned
by entities eligible under (a) or (b).
3. SELF-INSURANCE. The Investor shall continue to bear the risk of loss
of at least 10% of the book value of its interest in the foreign enterprise.
4. ASSIGNMENMENT. The Investor shall not assign this contract, or any of
its rights, without OPIC's written consent, which will not be withheld
unreasonably.
5. PREMIUMS. The Investor shall pay the premiums for this contract in
accordance with Article I. In the event that premiums are not paid when due, the
Investor shall be in default but may cure this default within sixty days by
paying the premiums plus interest at a rate of 12% per annum.
6. ACCOUNTING RECORDS.
(a) The Investor shall maintain in the United States true and complete
copies of the records, books of account and current financial statements
for the foreign enterprise necessary to compute and substantiate
compensation, including
(1) records documenting the investment;
(2) annual balance sheets;
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(3) annual statements of income, retained earnings, cash flow and
related footnotes.
(b) Accounting records shall be maintained and financial statements
prepared in United States dollars in accordance with principles of
accounting generally accepted in the United States (including principles
of currency translation), as modified by the special accounting rules
(sec.5.03.3 and sec.7.04(b)(3)).
(c) Subject to the obligations of the investor under sec.9.01.6, the
investor or the foreign enterprise shall retain all accounting records
until
(1) the deadline for filing an application for compensation has
expired sec.8.01); or
(2) final action has been taken on an application for compensation
(including arbitration and judicial appeals).
However, if compensation has been paid, the accounting records shall be
retained for three years after the Investor receives the compensation.
7. REPORTS AND ACCESS TO INFORMATION. In order that OPIC may perform
its statutory duties, including settling claims and reporting to the Congress
(22 U.S.C. sec.2200a), the Investor shall furnish OPIC with such information as
OPIC may reasonably request, including
(a) making available for interviews any persons subject to the Investor's
practical control (including employees of the project and independent
accountants);
(b) making available for inspection and copying all documents and
accounting records relating to the project (including workpapers of
independent accountants if available);
(c) permitting OPIC to inspect the project; and
(d) furnishing available information concerning the effects of the
project on the economy of the United States, the environment, and the
economic and social development of the country in which the project is
located.
The Investor's duties under this paragraph shall continue for the periods
specified for retention of accounting records (sec.9.01.6(c)).
8. COMPULSORY NOTICE. The Investor shall notify OPIC promptly if it
has reason to believe that the Investor or the foreign enterprise will not be
able to convert or transfer local currency, during the waiting period
(Article II). The Investor shall notify OPIC promptly of any acts or threats to
act in a manner which may come within the scope of the expropriation or
political violence coverage (Articles IV and VI and shall keep OPIC informed as
to all relevant developments
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9. PRESERVATION, TRANSFER AND CONTINUING COOPERATION. At OPIC's
request, the Investor shall promptly assign rights with respect to the
investment, as required by sec.8.02. Prior to the assignment of rights required
by sec.8.02, the Investor shall, in consultation with OPIC, take all reasonable
measures to preserve property, to pursue available administrative and judicial
remedies, and to negotiate in good faith with the governing authority of the
country in which the project is located and other potential sources of
compensation. After a transfer of rights or delivery of local currency, in
exchange for reimbursement of reasonable out-of-pocket expenses, the Investor
shall take all actions reasonably requested by OPIC to assist OPIC in preserving
the property and rights transferred to OPIC and in prosecuting related claims.
10. OTHER AGREEMENTS. The Investor shall not enter into any agreement
with any foreign governing authority with respect to compensation for any acts
within the scope of coverage (Article II, IV or VI) without OPIC's prior
written consent.
9.02 DEFAULT. Material breach or misrepresentation by the Investor shall
constitute default, and OPIC
(a) refuse to make payments to the Investor;
(b) recover payments made; and
(c) terminate this contract effective as of the date of the breach by
giving notice to the Investor.
9.03 NON-WAIVER. Neither OPIC's failure to invoke its rights, nor its
acceptance of premiums, shall constitute waiver of any of its rights, even
though OPIC knows of the Investor's breach.
9.04 CURE. OPIC may permit the investor to cure a breach in a manner
satisfactory too OPIC but shall have no obligation to allow breaches to be
cured.
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ARTICLE X - AMENDMENTS
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The following amendments are hereby incorporated as part of this Contract of
Insurance No. E578:
10.01 Subsection 1.01.3 is amended by inserting at the end thereof the
following:
"The term 'foreign governing authority' includes not only the federal
government of Russia and its agencies and instrumentalities exercising
governmental (as distinguished from commercial) functions but also
subordinate levels of government, local and municipal government, and
agencies and instrumentalities through which they exercise such
governmental functions. The term 'foreign governing authority' does not
include any entity in which the foreign governing authority has an
ownership interest if the entity performs commercial functions directly
related to the project."
10.02 Subsection 3.01.1, "DATE", is amended by deleting the words "0 days
before" from the ninth line thereof and substituting the words "on the day (or
if such day is not a business day in the Russian Federation, the first following
business day in the Russian Federation)".
10.03 Notwithstanding any other provision of this contract, the Investor shall
not file applications for compensation under, and OPIC shall have no liability
for claims under, inconvertibility coverage (Articles II and III) in excess of
$250,000 in any 91-day period.
10.04 Subsection 4.01(b) is amended by deleting the words "or material breaches
of local law".
10.05 Notwithstanding any other provision of this contract (including Section
4.01 (b) and (c)), any regulatory actions taken by Russian government
authorities pursuant to their reasonable exercise of regulatory oversight of the
securities sector that may impact the profitability of the project shall not
constitute compensable acts under Article IV of this contract.
10.06 Section 9.01.2, "OWNERSHIP AND ELIBILITY", is amended by deleting
paragraphs (a), (b) and (c) and inserting the following new paragraphs (a), (b),
(c) and (d) therefor:
"(a) a citizen of the United States; or
(b) a corporation or other association created under the laws of the
United States, its states, territories or the District of Columbia, of
which more than 50% of both the total interest and of each class of
shares is beneficially owned by citizens of the United States; or
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(c) a corporation created under foreign law in which more than a 95%
interest is owned by entities eligible under (a) or (b); or
(d) an entity created under foreign law which is wholly owned by entities
eligible under (a) or (b)."
10.07 Section 9.01, "DUTIES", shall be amended by adding the following new
subsections "11. WORKER RIGHTS" and "12. LEGALITY", at the end thereof:
"11. WORKER RIGHTS. The Investor agrees not to take actions to prevent
employees of the foreign enterprise from lawfully exercising their right
of free association and their right to organize and bargain collectively.
The Investor agrees not to interfere with or coerce an employee of the
foreign enterprise on the basis of trade union activities or membership.
The Investor further agrees not to take any action on the basis of such
activities or membership which may result in the termination, suspension,
demotion, or transfer of said employee by the foreign enterprise, or by
an officer, agent or other representative thereof. The Investor further
agrees to observe applicable laws relating to a minimum age for
employment of children, acceptable conditions of work with respect to
minimum wages, hours of work, and occupational health and safety, and not
to use forced labor. The Investor is not responsible under this paragraph
for the actions of a foreign government.
"12. LEGALITY. The Investor has implemented and shall implement the
investment and the project in compliance in all material respects with
all applicable and publicly available laws, decrees, regulations,
administrative determinations and procedures of the foreign governing
authority."
10.08 The issuance by OPIC of this contract shall not constitute an
acknowledgment or assurance by OPIC of the validity of any agreement or
arrangement constituting or relating to the investment under the laws of Russia.
10.09 The Investor hereby acknowledges that no individual investment made by
the foreign enterprise shall be covered by this contract.
PIONEER OMEGA, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Treasurer Date: Aug. 19, 96
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Xxxxxxx X. Xxxxxx, Treasurer
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Print Name and Title
OVERSEAS PRIVATE INVESTMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxx Date: 8/22/96
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Xxxxx X. Xxxxxx, Deputy Vice President for Insurance
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Print Name and Title
