EXHIBIT 10.5
BANK LOAN AGREEMENT BETWEEN
BANCO MERCANTIL, C.A. AND ▇▇▇▇▇▇-VINCCLER, C.A.
EXECUTED OCTOBER 1, 2002
BANCO MERCANTIL, C.A. (BANCO UNIVERSAL), domiciled in Caracas, originally
registered with the Commercial Registry kept by the former Commercial Court of
the Federal District, on April 3, 1925, under No. 123, the Articles of
Incorporation of which were amended and merged into one single text as evidenced
by the entry made in the First Commercial Registry of the Judicial Circuit of
the Capital District and State of Miranda on March 4, 2002, under No. 77, Volume
32-A First, referred to as the "BANK", represented in this proceeding by its
Attorney-in-fact ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Venezuelan, of legal age, an attorney,
domiciled in the city of Caracas, bearer of Identity Card NO. [ ], her
capacity being evidenced by a power of attorney registered with the Subaltern
Office of the First Public Registry Circuit of Baruta Municipality, State of
Miranda, on September 11, 2000, under No. 18, Volume 4, Third Protocol,
sufficiently authorized to execute this document, as party of the first part;
and, as party of the second part, ▇▇▇▇▇▇-VINCCLER, C.A., a corporation domiciled
in Caracas, originally registered with the Second Commercial Registry of the
Judicial Circuit of the Federal District and State of Miranda, on June 29, 1993,
under No. 13, Volume 146-A Second, referred to as the "BORROWER", represented
herein by ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, a United States citizen, of legal age, domiciled
in Caracas, bearer of Identity Card NO. [ ] and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Venezuelan,
of legal age, domiciled in Caracas, bearer of Identity Card No. [ ],
sufficiently authorized by the Special Shareholders' Meeting of their principal,
held on September 5, 2002, the minutes of which were registered with the Second
Commercial Registry of the Judicial Circuit of
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the Capital District and State of Miranda, on September 16, 2002, under No. 27,
Volume 143, have agreed to enter into this agreement to be governed by the
following clauses: FIRST: The BANK grants hereby the BORROWER an interest
bearing loan of FIFTEEN MILLION FIVE HUNDRED THOUSAND UNITED STATES DOLLARS
(US$15,500,000.00). SECOND: The BORROWER agrees to use the monies received as an
interest bearing loan for the construction of a gas pipeline and related
facilities from Uracoa to Macapaima located in the State of Monagas, Bolivarian
Republic of Venezuela. THIRD: The BORROWER agrees to return the monies received
as a loan within a term of FOUR (4) years including one year grace period for
the principal, as of the date of authentication of this document, by paying
TWELVE (12) equal and consecutive quarterly installments, evidencing only the
principal amount owed, of ONE MILLION TWO HUNDRED NINETY-ONE THOUSAND SIX
HUNDRED SIXTY-SIX UNITED STATES DOLLARS AND SIXTY-SEVEN CENTS (US$1,291,666.67)
each, the first of which must be paid on January 2, 2004 and the remaining
installments on the following dates: April 1, 2004; July 1, 2004; October 1,
2004; January 3, 2005; April 1, 2005; July 1, 2005; October 3, 2005; January 2,
2006; April 3, 2006; July 3, 2006 and October 2, 2006. FOURTH: The monies
received as an interest bearing loan will bear conventional interest on the
outstanding balance, under the variable rate system equivalent to LIBOR plus SIX
(6) PERCENTAGE POINTS, which will be revised, fixed and adjusted on the last
business day of each calendar quarter or the date of payment of the quarterly
installments containing the principal owed and is payable at the end of each
month. For the purpose of this document, LIBOR, THE "LONDON INTERBANK OFFERED
RATE", is understood to be the arithmetical average of the interest rates
offered in the interbank market in London, England, by the principal Banks of
that city, for three (3) month term deposits, determined at 11:00 a.m., London
time, as published by REUTERS. On the dates and opportunities of each adjustment
or variation,
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the interest rate will be automatically varied or adjusted accordingly and
applied as provided for in this document without requiring a special act, advice
or notice to the BORROWER, which undertakes to obtain information from the BANK
about the interest rate applicable to the obligations assumed through this
document. The BORROWER agrees to pay the BANK the amount of the obligations
contracted herein, as well as the interest and any other related expense, in
United States dollars, exclusive of any other currency. As of the date this
document was written, that is October 1, 2002, the LIBOR rate is one point eight
zero six two five percent (1.80625%) PER ANNUM. FIFTH: If the BORROWER becomes
delinquent, the applicable variable interest rate will be that resulting from
adding THREE (3) PERCENTAGE POINTS to the interest rate in force during the
default period, calculated as indicated above. SIXTH: The BORROWER expressly and
irrevocably authorizes the BANK to charge or debit any account or deposit it
maintains with that Banking Institution or the BORROWER's account with
COMMERCEBANK, N.A., identified as No. [ ], all matured amounts owed in
relation to the granting of this INTEREST BEARING LOAN, extinguishing BORROWER's
payment obligation for the amounts due up to the amount charged or debited by
the BANK either from the BANK or from the COMMERCEBANK, N.A., without it being
understood that these charges give rise to novation of its obligations. SEVENTH:
The BORROWER may make special repayments of the principal due, and the total
prepayment of the entire INTEREST BEARING LOAN referred to herein, only at the
times when quarterly principal installments must be paid and provided it gives
notice thereof to the BANK at least THIRTY (30) consecutive days in advance of
the date on which such repayment or total prepayment referred to above is to be
made. EIGHTH: The BANK may consider any and all of the obligations which have
been assumed by the BORROWER by virtue of this document due and, therefore,
payment in full shall be forthwith due and payable in any of the following
events: 1) Failure to pay when due any
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one (1) of the principal installments or any one (1) of the interest
installments which BORROWER must pay provided that BORROWER and the GUARANTOR,
identified below, is given notice of the failure to pay by the BANK and is
allowed to have THREE (3) Business Days upon receipt of the notice to remedy the
default by making payment of the amount due to the BANK; 2) If the BORROWER
assigns or delegates the rights or obligations assumed under this agreement to
any individual or legal entity; 3) If the BORROWER assigns or delegates to any
individual or legal entity, except the assignment or delegation to an Affiliate
("Affiliate" means a subsidiary of ▇▇▇▇▇▇ Vinccler, C.A. or any other company in
which Harvest Natural Resources Inc. holds at least 51% of the capital stock and
administrative control of the company), the Unidad Monagas Sur Operating
Services Agreement (for Uracoa, Bombal, Tucupita), entered into between Lagoven,
S.A., a Subsidiary of Petroleos de Venezuela (currently PDVSA), ▇▇▇▇▇▇ Oil and
Gas Company (CURRENTLY Harvest Natural Resources Inc.) and Venezolana de
Inversiones y Construcciones ▇▇▇▇▇▇▇, C.A. (VINCCLER, C.A.), on July 31, 1992 or
any addendum to this operating services agreement of the Monagas Sur Unit
(Uracoa, Bombal Tucupita) or the credit rights derived from said Agreement; 4)
If the BORROWER fails to deliver annual Financial Statements to the BANK during
the term of the credit facility within FOUR (4) MONTHS of the end of each fiscal
year, duly certified by a firm of Independent Auditors approved by the BANK (the
BANK hereby approves the BORROWER's current audit firm ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ y
Asociados - member of Price-Waterhouse-Coopers) or its monthly Balance Sheets
within thirty (30) days after they have been requested; 5) If the BORROWER
revokes the instructions given to PDVSA EXPLORACION Y PRODUCCION, C.A.,
evidenced by a document authenticated before the Seventh Notary Public of Chacao
Municipality, State of Miranda, Caracas Metropolitan District, on October 11,
2000, under No. 35, Volume 48 of the Books of Authentication kept by that Notary
Public, such payments arising from
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the Agreement mentioned in subparagraph 3 of this same clause shall be deposited
only in the account that the BORROWER maintains with COMMERCEBANK, N.A., account
number NO. [ ]; 6) If the BORROWER uses the monies received as an interest
bearing loan for purposes other than those established in this document; 7) If
there is a judicial declaration of moratorium, bankruptcy or the judicial
liquidation of the BORROWER'S assets or if ; 8) If precautionary or executive
measures prohibiting the sale or encumbrance, attachment, seizure or other type
of measure are declared on the assets owned by the BORROWER and such measures
are not stayed within a period of THIRTY (30) consecutive days after the date
the decision to adopt these measures was issued; 9) If substantial changes are
made to the current shareholding structure of the BORROWER that results in
HARVEST NATURAL RESOURCES, INC. having less THAN FIFTY-ONE PERCENT (51%) of the
capital stock and administrative control of the BORROWER; 10) If the BORROWER
declares cash dividends to be distributed among its shareholders while there is
a principal installment or interest payment due and not paid under this
document. Also, the BANK must be notified of any payment of dividends in cash
fifteen (15) consecutive days in advance of the date of payment; 11) If during
the term of this interest bearing loan, the BORROWER incurs a patent default on
monetary obligations assumed vis-a-vis any third party or any other type of
obligation that results in the accelerated maturity of the obligations set forth
in the contracts governing its relationships with such parties; 12) If at any
time during the term of this interest bearing loan, it is proven that the
BORROWER does not maintain appropriate insurance for the facilities where it
operates or carries out its day-to-day commercial activities, according to the
demands of the individual or company that owns such facilities; 13) If during
the term of this INTEREST BEARING LOAN, the BORROWER suspends the production
(extraction) of oil and gas for a term of more than thirty (30) consecutive
days; 14) If the GUARANTOR, identified below, incurs any of the events of
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default set forth in the indenture dated November 3, 1997 signed with First
Trust of New York, National Association, Trustee. Also, if the GUARANTOR" and
the BORROWER" do not provide to the "BANK" ninety (90) days after the fiscal
year end a brief certification issued by the principal executive of Finances or
Accounting confirming that the "GUARANTOR" has complied with the conditions and
covenants of Indenture, and also if the GUARANTOR does not deliver to the BANK,
as soon as possible within a period of not more than ten (10) days of the date
on which the GUARANTOR is made aware of the occurrence of an event of default or
of a default, a certification explaining the details of the event of default or
default and the actions the GUARANTOR proposes for this purpose. On the other
hand, if the GUARANTOR should prepay all the financing referred to in such
indenture dated November 3, 1997, the BORROWER undertakes to renegotiate with
the BANK the terms and conditions that will govern this interest bearing loan
from then on. If the BORROWER and the BANK fail to reach an agreement on this
matter within a maximum term of THIRTY (30) CONSECUTIVE DAYS after the
occurrence of such event, the INTEREST BEARING LOAN shall be deemed due and
payable and therefore the BANK may demand full and immediate payment of all
monies owed by virtue of this agreement; and 15) Default on any of the
conditions mentioned above, the BORROWER will have a maximum term of 30 days to
correct or request a waiver for the default of those conditions. After this term
expires all of the obligations assumed by the BORROWER with the BANK will become
due and payable; and 16) Default on any other obligations assume by the BORROWER
herein. NINTH: The BORROWER agrees to pay the BANK a annual flat commission of
ZERO POINT TWO FIVE PERCENT (0.25%) for the administration of this interest
bearing loan, the first of which is payable on the date of execution of this
interest bearing loan and annually thereafter calculated on the outstanding
principal balance at the time of payment of the respective administration
commission. TENTH: The BANK will send all account
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statements, as well as any other type of correspondence or notice regarding this
agreement by mail or by any other written means to the address of the BORROWER:
at Centro Comercial Fiorca, Piso 2, Oficina ▇▇-▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ Monagas. The BORROWER undertakes to give written notice or any other type
of notice to the BANK agreed to by the BANK and the BORROWER, of any change of
address that the BORROWER may have in the future. Notices or communications will
be considered duly made FIVE (5) CONSECUTIVE DAYS after the BANK sends the
notice or communication to the BORROWER'S address as registered with the BANK.
If the notice, communication, account statement or any other kind of
correspondence is sent by fax or e-mail, this period will be reduced to ONE (1)
DAY. The BORROWER expressly releases the BANK from any liability, directly or
indirectly, derived from any notice or communication sent to an address that is
not the current address, when this is due to failure to notify in a timely
manner a change of address referred to in this clause. In any event, the
BORROWER undertakes to examine each statement or communication that the BANK
sends, and to send written notice to the BANK of any disagreement or objection,
within FIVE (5) days of the periods indicated above, except if otherwise
provided for by Law. The BORROWER expressly accepts that failure to notify its
disagreement or objection, within such periods, implies acceptance by the
BORROWER of the contents of the pertinent statement, notice or communication.
All communications or notices that the BORROWER must send to the BANK may be
sent by certified mail with acknowledgement of receipt, telex or fax, and be
sent to the following address: Final Avenida ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ con ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Caracas. ELEVENTH: The BORROWER
expressly declares that this interest bearing loan is guaranteed by its parent
company, HARVEST NATURAL RESOURCES, INC. referred to herein as the "GUARANTOR",
for up to FIFTEEN MILLION FIVE HUNDRED THOUSAND UNITED STATES DOLLARS
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(US$15,500,000.00) or its equivalent in local currency, thus in Bolivars.
TWELFTH: To the sole effect of compliance with Article 95 of the Law of the
Central Bank of Venezuela, the amount of Fifteen Million Five Hundred Thousand
United States Dollars is equivalent to the amount of 22,839,250,000 Bolivars.
For all purposes of this agreement, the city of Caracas is elected as special
and exclusive domicile, and the parties declare their willingness to be subject
to the jurisdiction of its courts.
