Exhibit 10(rr)
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TRINIDAD PROJECT LOAN AGREEMENT
among
YORK EX INTERNATIONAL SRL,
as borrower
and
YORK POWER FUNDING (CAYMAN) LIMITED,
as lender
Dated as of August 4, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS; CONSTRUCTION
Section 1.1 DEFINITIONS............................................................................2
Section 1.2 PRINCIPLES OF CONSTRUCTION.............................................................2
ARTICLE 2
DESCRIPTION OF THE TRINIDAD PROJECT LOAN
Section 2.1 ACKNOWLEDGMENTS OF THE TRINIDAD PROJECT BORROWER; TRINIDAD PROJECT
LOAN..............................................................................2
Section 2.2 TERM OF THIS AGREEMENT.................................................................2
Section 2.3 INTEREST................................................................................2
Section 2.4 PRINCIPAL..............................................................................3
Section 2.5 OBLIGATIONS OF THE TRINIDAD PROJECT BORROWER HEREUNDER
UNCONDITIONAL.....................................................................3
Section 2.6 GENERAL TERMS OF PAYMENT...............................................................4
Section 2.7 SECURITY...............................................................................4
Section 2.8 PLEDGE OF TRINIDAD PROJECT NOTE........................................................4
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 ORGANIZATION, POWER AND STATUS OF THE TRINIDAD PROJECT BORROWER........................5
Section 3.2 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND DELIVERY..................................5
Section 3.3 NO CONFLICT............................................................................5
Section 3.4 COMPLIANCE WITH APPLICABLE LAW.........................................................6
Section 3.5 LITIGATION.............................................................................6
Section 3.6 ENVIRONMENTAL MATTERS..................................................................6
Section 3.7 BUSINESS OF THE TRINIDAD PROJECT BORROWER. ...........................................6
Section 3.8 VALID TITLE............................................................................6
Section 3.9 SECURITY INTERESTS.....................................................................6
Section 3.10 UTILITY REGULATION....................................................................7
Section 3.11 INVESTMENT COMPANY ACT................................................................7
Section 3.12 NO DEFAULTS...........................................................................7
Section 3.13 GOVERNMENTAL APPROVALS................................................................7
Section 3.14 MARGIN STOCK..........................................................................8
Section 3.15 TAXES.................................................................................8
Section 3.16 OWNERSHIP OF THE TRINIDAD PROJECT BORROWER............................................8
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PAGE
Section 3.17 DISCLOSURE............................................................................8
Section 3.18 REPRESENTATIONS AND WARRANTIES........................................................8
Section 3.19 USE OF PROCEEDS.......................................................................8
Section 3.20 TRINIDAD PROJECT DOCUMENTS............................................................8
ARTICLE 4
COVENANTS AND AGREEMENTS OF THE TRINIDAD PROJECT BORROWER
Section 4.1 PAYMENT OF PRINCIPAL OF AND INTEREST ON THE TRINIDAD PROJECT LOAN......................9
Section 4.2 REPORTING REQUIREMENTS.................................................................9
Section 4.3 MAINTENANCE OF EXISTENCE..............................................................10
Section 4.4 COMPLIANCE WITH LAWS..................................................................10
Section 4.5 GOVERNMENTAL APPROVALS; TITLE.........................................................10
Section 4.6 EXERCISE OF RIGHTS AND PERFORMANCE UNDER TRANSACTION
DOCUMENTS..................................................................................11
Section 4.7 ADDITIONAL DOCUMENTS; FILINGS AND RECORDINGS..........................................11
Section 4.8 PAYMENT OF TAXES AND CLAIMS...........................................................12
Section 4.9 BOOKS AND RECORDS.....................................................................12
Section 4.10 [Intentionally Omitted]..............................................................12
Section 4.11 AUDITORS..............................................................................12
Section 4.12 TRINIDAD REVENUE ACCOUNT..............................................................12
Section 4.13 PROJECT IMPLEMENTATION................................................................12
Section 4.14 PERMITTED INDEBTEDNESS................................................................13
Section 4.15 PERMITTED LIENS.......................................................................14
Section 4.16 CONTINGENT LIABILITIES................................................................14
Section 4.17 NATURE OF BUSINESS....................................................................15
Section 4.18 PROHIBITION ON FUNDAMENTAL CHANGES....................................................15
Section 4.19 SALE OF ASSETS........................................................................15
Section 4.20 SUBSIDIARIES; ADVANCES, INVESTMENTS AND LOANS.........................................15
Section 4.21 TRANSACTIONS WITH AFFILIATES..........................................................15
Section 4.22 RESTRICTED PAYMENTS...................................................................15
Section 4.23 AMENDMENTS TO TRINIDAD PROJECT DOCUMENTS..............................................16
Section 4.24 ASSIGNMENT OF OBLIGATIONS; ADDITIONAL AGREEMENTS......................................16
Section 4.25 MODIFICATIONS OF FORMATION DOCUMENTS..................................................16
Section 4.26 TAXATION..............................................................................17
PAGE
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1 EVENTS OF DEFAULT DEFINED.............................................................17
Section 5.2 REMEDIES UPON A TRINIDAD EVENT OF DEFAULT.............................................20
Section 5.3 CONTINUING LIEN.......................................................................21
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Section 5.4 DEFENSE OF ACTIONS....................................................................22
ARTICLE 6
GENERAL TERMS AND CONDITIONS
Section 6.1 NOTICES...............................................................................22
Section 6.2 AMENDMENTS AND WAIVERS................................................................22
Section 6.3 NO WAIVER; REMEDIES CUMULATIVE........................................................22
Section 6.4 SEVERABILITY..........................................................................23
Section 6.5 THIRD PARTY BENEFICIARIES.............................................................23
Section 6.6 TRINIDAD PROJECT BORROWER IN CONTROL..................................................23
Section 6.7 NUMBER AND GENDER.....................................................................23
Section 6.8 SECTION HEADINGS......................................................................23
Section 6.9 GOVERNING LAW; SUBMISSION TO JURISDICTION.............................................23
Section 6.10 LIMITATION OF LIABILITY..............................................................24
Section 6.11 COUNTERPARTS.........................................................................25
Section 6.12 SUCCESSORS AND ASSIGNS...............................................................25
Section 6.13 MAXIMUM INTEREST RATE................................................................25
Section 6.14 ENGLISH LANGUAGE.....................................................................25
Section 6.15 ENTIRE AGREEMENT.....................................................................25
Section 6.16 SURVIVAL.............................................................................26
Schedule I: Amortization Schedule
Exhibit A: Form of Trinidad Project Note
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TRINIDAD PROJECT LOAN AGREEMENT
This TRINIDAD PROJECT LOAN AGREEMENT, dated as of August 4, 1998 (this
"AGREEMENT") is by and among YORK EX INTERNATIONAL SRL, a Barbados exempt
society with restricted liability (the "TRINIDAD PROJECT BORROWER") and YORK
POWER FUNDING (CAYMAN) LIMITED, a limited liability company incorporated and
existing under the laws of the Cayman Islands ("FUNDING COMPANY"), as lender.
RECITALS
WHEREAS, Funding Company is a limited liability company established for
the sole purpose of issuing the Securities in its individual capacity as
principal and as agent acting on behalf of the U.S. Guarantors pursuant to the
Indenture and to make loans to the Project Borrowers pursuant to the Project
Loan Agreements;
WHEREAS, Funding Company has simultaneously with the execution and
delivery of this Agreement issued and sold the Initial Securities pursuant to
the Indenture;
WHEREAS, pursuant to this Agreement, Funding Company intends to use a
portion of the proceeds from the issuance and sale of the Initial Securities to
make the Trinidad Project Loan to the Trinidad Project Borrower in the aggregate
principal amount of U.S.$100,000,000;
WHEREAS, payments of the principal of, premium (if any), interest on
and any other amounts due with respect to the Initial Securities will be
partially serviced by repayment of the Trinidad Project Loan; and
WHEREAS, payments of the principal of and interest on and any other
amounts due with respect to the Trinidad Project Loan will be guaranteed by the
Trinidad Guarantor.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto formally covenant, agree and
bind themselves as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
Section 1.1 DEFINITIONS. Except as otherwise expressly provided herein
or unless the context otherwise clearly requires, capitalized terms used in this
Agreement shall have the meanings ascribed thereto in APPENDIX A of the
Indenture and APPENDIX A is incorporated by reference herein as if set forth in
full herein.
Section 1.2 PRINCIPLES OF CONSTRUCTION. Except as otherwise expressly
provided herein or unless the context otherwise clearly requires, the principles
of construction set forth in SECTION 1.1 (Definitions; Construction) of the
Indenture shall apply to this Agreement.
ARTICLE 2
DESCRIPTION OF THE TRINIDAD PROJECT LOAN
Section 2.1 ACKNOWLEDGMENTS OF THE TRINIDAD PROJECT BORROWER; TRINIDAD
PROJECT LOAN. The Trinidad Project Borrower and Funding Company hereby
acknowledges and agrees that:
(a) pursuant to this Agreement, Funding Company does hereby lend to the
Trinidad Project Borrower and the Trinidad Project Borrower does hereby borrow
from Funding Company funds in the aggregate principal amount of One Hundred
Million United States Dollars (U.S. $100,000,000) (the "TRINIDAD PROJECT LOAN")
to be evidenced by a promissory note or notes substantially in the form of
EXHIBIT A issued by the Trinidad Project Borrower in favor of Funding Company
(each such note, including any note issued pursuant to clause (b) of this
SECTION 2.1, a "TRINIDAD PROJECT NOTE"); and
(b) if proceeds from the issuance and sale of any Additional Securities
the proceeds of which must be loaned to the Trinidad Project Borrower by Funding
Company, the outstanding principal balance of the Trinidad Project Loan shall be
increased by the amount of such proceeds and the Trinidad Project Loan shall
include the loan to the Trinidad Project Borrower of such proceeds, as evidenced
by a promissory note or notes substantially in the form of EXHIBIT A to be
issued by the Trinidad Project Borrower in favor of Funding Company.
Section 2.2 TERM OF THIS AGREEMENT. This Agreement shall remain in full
force and effect from the date hereof until the payment in full of all amounts
due under this Agreement.
Section 2.3 INTEREST. Interest hereunder shall be paid in arrears on
each April 30 and October 30, commencing October 30, 1998, until all principal
hereunder is paid in full.
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Interest hereunder shall be computed (a) on the basis of a three hundred sixty
(360) day year, consisting of twelve (12) thirty (30) day months, and (b) at the
applicable rates PER ANNUM specified on SCHEDULE I.
Section 2.4 PRINCIPAL.
(a) REGULAR REPAYMENT. (i) The Trinidad Project Borrower shall repay
the Trinidad Project Loan in installments to Funding Company on the dates, at
the times and in the amounts set forth on SCHEDULE I (as the same may be
modified (a) pursuant to SECTION 7.3 (Amendment of Project Loan Agreements or
Project Notes) of the Indenture and (b) to reflect any prepayments made pursuant
to clause (b) of this SECTION 2.4).
(ii) If proceeds from the issuance of any
Additional Securities are loaned to the Trinidad Project Borrower by Funding
Company, principal payments on the additional promissory note or notes issued by
the Trinidad Project Borrower pursuant to SECTION 2.1(B) (Acknowledgments of
Trinidad Project Borrower; Trinidad Project Loan) shall be payable in scheduled
installments which correspond to the repayment of such Additional Securities.
(b) PREPAYMENT. The Trinidad Project Borrower shall prepay the Trinidad
Project Loan pursuant to SECTION 3.4 (Prepayment of Project Loans) of the
Indenture in such amounts and at such times as may be appropriate to permit
Funding Company to redeem the Securities pursuant to SECTION 3.1 (Redemption at
the Option of Funding Company or the Holders) or SECTION 3.2 (Mandatory
Redemption) of the Indenture; PROVIDED that simultaneously there with, if
required to provide for the prepayment of the Trinidad Project Loan, the
Trinidad Project Borrower shall, through its ownership of the Trinidad
Guarantor, cause the Trinidad Obligor to prepay the Trinidad Loan pursuant to
SECTION 2.4(b) (Prepayment) of the Trinidad Loan Agreement. Following such
prepayment, the Trinidad Project Borrower shall furnish the Bond Trustee, on
behalf of Funding Company, an Officer's Certificate setting forth the
amortization schedule for the remaining Securities after giving effect to such
prepayment and corresponding redemption under the Indenture.
(c) The Trinidad Project Borrower shall prepay the Trinidad Project
Loan in such amounts and at such times as may be appropriate to permit Funding
Company to defease the Securities pursuant to SECTION 8.2 (Defeasance) of the
Indenture; PROVIDED that simulta neously therewith, if required to provide for
the prepayment of the Trinidad Project Loan, the Trinidad Project Borrower
shall, through its ownership of the Trinidad Guarantor, cause the Trinidad
Obligor to prepay the Trinidad Loan pursuant to SECTION 2.4(b) (Prepayment) of
the Trinidad Loan Agreement.
Section 2.5 OBLIGATIONS OF THE TRINIDAD PROJECT BORROWER HEREUNDER
UNCONDITIONAL. The obligation of the Trinidad Project Borrower to make the
payments required in SECTION 2.3 (Interest), SECTION 2.4 (Principal) and SECTION
4.26 (Taxation) shall be absolute and
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unconditional and the Trinidad Project Borrower shall not discontinue such
payments for any reason, including, without limitation, any acts or
circumstances that may constitute failure of consideration, eviction or
constructive eviction from the Trinidad Project, including commer cial
frustration of purpose, or change in Applicable Law. The Trinidad Project
Borrower may, however, at its own cost and expense and in its own name or, with
the consent of Funding Company and subject to the provision of certain
indemnities as Funding Company may require, in the name of Funding Company,
prosecute or defend any action or proceeding or take any other action involving
third Persons which the Trinidad Project Borrower deems reasonably necessary in
order to secure or protect its right of possession, occupancy and use of the
Trinidad Project.
Section 2.6 GENERAL TERMS OF PAYMENT. (a) All sums payable to Funding
Company hereunder shall be deemed paid to the extent the Collateral Agent shall
apply amounts held by the Depositary Bank to the payment of the principal of,
interest on or any other amounts due in respect of the Trinidad Project Loan and
the principal of, premium (if any), interest on or any other amounts due in
respect of the Securities, each in accordance with the Trinidad Depositary
Agreement.
(b) Whenever any payment hereunder shall be due, or any calculation
shall be made, on a day which is not a Business Day, the date for payment or
calculation, as the case may be, shall be extended to the next Business Day, and
any interest on any payment shall be payable for such extended time at the rate
set forth therefor.
(c) If no due date is specified for the payment of any amount payable
by the Trinidad Project Borrower hereunder, such amount shall be due and payable
not later than ten (10) days after receipt by the Trinidad Project Borrower of a
written demand from Funding Company for payment thereof.
Section 2.7 SECURITY. The obligations of the Trinidad Project Borrower
hereunder shall be secured as set forth herein and under the Security Documents.
Notwithstanding anything to the contrary herein or in any Security Document, the
Trinidad Collateral, or any portion thereof, shall in no event be used to secure
the Securities or any obligation of any U.S. Guarantor.
Section 2.8 PLEDGE OF TRINIDAD PROJECT NOTE. Funding Company shall
pledge each Trinidad Project Note to the Collateral Agent, acting on behalf of
the Secured Parties pursuant to the Trinidad Project Note Pledge Agreement. The
Trinidad Project Borrower hereby acknowledges and consents to the granting of
such pledge and this SECTION 2.8 shall constitute notice thereof given as of the
date of this Agreement.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Trinidad Project Borrower make the following representations and
warranties to Funding Company, which representations and warranties shall
survive the execution and delivery of this Agreement:
Section 3.1 ORGANIZATION, POWER AND STATUS OF THE TRINIDAD PROJECT
BORROWER. The Trinidad Project Borrower (i) is an exempt society with restricted
liability duly organized and validly existing under the laws of Barbados, and
(ii) has all requisite power and authority to own the property and assets owned
by it and to carry on its business as now being conducted and as proposed to be
conducted.
Section 3.2 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND DELIVERY. (a)
The Trinidad Project Borrower has all necessary power and authority to execute,
deliver and perform its obligations under this Agreement, the Trinidad Project
Note and each other Transaction Document to which the Trinidad Project Borrower
is a party.
(b) The Trinidad Project Borrower has taken all necessary and proper
action to authorize the execution, delivery and performance by it of this
Agreement, the Trinidad Project Note and each other Transaction Document to
which the Trinidad Project Borrower is a party. The execution, delivery and
performance of this Agreement, the Trinidad Project Note and each other
Transaction Document to which the Trinidad Project Borrower is a party does not
require the approval or consent of any holder or trustee of any Indebtedness or
other obligations of the Trinidad Project Borrower which has not been obtained.
(c) This Agreement, the Trinidad Project Note and each other
Transaction Document to which the Trinidad Project Borrower is a party have been
duly executed and delivered by the Trinidad Project Borrower and constitute
legal, valid and binding obligations of the Trinidad Project Borrower,
enforceable against the Trinidad Project Borrower in accordance with the terms
hereof and thereof, except as the enforceability thereof may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii) general
equitable principles, regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law.
Section 3.3 NO CONFLICT. Neither the execution, delivery and
performance of this Agreement, the Trinidad Project Note or any other
Transaction Document to which the Trinidad Project Borrower is a party nor the
consummation of any of the transactions contemplated hereby or thereby (a)
contravenes or violates any provision of any Applicable Law to which the
Trinidad Project Borrower or any of its assets is subject, (b) conflicts with or
violates any provision of any formation document of the Trinidad Project
Borrower or (c)
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conflicts with or violates, will result in a breach of any of the terms,
covenants, conditions or provisions of, constitutes a default under, or results
in the acceleration of Indebtedness evidenced by, any agreement or instrument to
which the Trinidad Project Borrower is a party or by which it or any of its
properties or assets is bound or to which it may be subject, except, in the case
of clauses (a) or (c) immediately above, any such conflict, violation, breach,
default or acceleration which could not reasonably be expected to result in a
Material Adverse Effect, or (d) results in the creation or imposition of (or the
obligation to create or impose) any Lien (other than Trinidad Permitted Project
Liens) upon any of the properties or assets of the Trinidad Project Borrower.
Section 3.4 COMPLIANCE WITH APPLICABLE LAW. The Trinidad Project
Borrower has been and is currently in compliance with all Applicable Laws to
which it or any of its assets is subject, except where failure to comply could
not reasonably be expected to result in a Material Adverse Effect.
Section 3.5 LITIGATION. There are no claims, actions, suits,
investigations or proceed ings at law or in equity (including any Environmental
Claims) or by or before any arbitrator or Governmental Authority now pending
against the Trinidad Project Borrower or, to the best knowledge of the Trinidad
Project Borrower, threatened against the Trinidad Project Borrower or any
properties, assets or rights of the Trinidad Project Borrower that could
reasonably be expected to result in a Material Adverse Effect.
Section 3.6 ENVIRONMENTAL MATTERS. The Trinidad Project Borrower has
been and is currently in compliance with all applicable Environmental Laws
except where the failure to comply could not reasonably be expected to have a
Material Adverse Effect. To the best knowledge of the Trinidad Project Borrower,
the Trinidad Project is in compliance with all applicable Environmental Laws and
there are no existing facts, circumstances or conditions which could under any
existing applicable Environmental Law, individually or in the aggregate with all
other circumstances and conditions, reasonably be expected to result in a
Material Adverse Effect.
Section 3.7 BUSINESS OF THE TRINIDAD PROJECT BORROWER. Except as
otherwise permitted in this Agreement and the other Finance Documents, the
Trinidad Project Borrower is not engaged in any business other than the
financing of the Trinidad Project and transac tions related thereto.
Section 3.8 VALID TITLE. The Trinidad Project Borrower is the legal and
beneficial owner of, with good, legal and valid title to, all its properties and
assets free and clear of all Liens other than Trinidad Permitted Project Liens.
Section 3.9 SECURITY INTERESTS. (a) The Security Documents to which the
Trinidad Project Borrower is a party, upon execution and delivery by the parties
thereto, will create valid, and, when financing statements (or the equivalent)
in appropriate form are filed in the
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recording offices specified therein, perfected, first priority Liens, subject to
Trinidad Permitted Project Liens, in all of the Trinidad Collateral owned by the
Trinidad Project Borrower in favor of the Collateral Agent for the benefit of
the Secured Parties.
(b) No mortgage or financing statement or other instrument or
recordation executed or authorized to be filed by the Trinidad Project Borrower,
or, to the Trinidad Project Borrower's best knowledge, by any other Person
covering all or any part of the property or assets of the Trinidad Project
Borrower (including the Trinidad Collateral) is on file in any recording office,
except such as relate to Trinidad Permitted Project Liens.
Section 3.10 UTILITY REGULATION. The Trinidad Project Borrower is not
subject to regulation by any Governmental Authority under PUHCA as a "holding
company," a "public utility company" or an "affiliate" or a "subsidiary company"
of a "holding company."
Section 3.11 INVESTMENT COMPANY ACT. The Trinidad Project Borrower is
not, and following the execution of the Trinidad Project Note will not be, an
"investment company" or a company "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended from
time to time.
Section 3.12 NO DEFAULTS. (a) No Trinidad Default or Trinidad Event
of Default has occurred and is continuing.
(b) The Trinidad Project Borrower is not in default under any Trinidad
Project Document or any other Transaction Document to which the Trinidad Project
Borrower is a party except for defaults which could not reasonably be expected
to result in a Material Adverse Effect.
(c) To the best knowledge of the Trinidad Project Borrower, no default
exists by any other party to any Trinidad Project Document or any other contract
related to the Trinidad Project and no event of force majeure exists under any
Trinidad Project Document except for defaults which, in either case, could not
reasonably be expected to result in a Material Adverse Effect.
Section 3.13 GOVERNMENTAL APPROVALS. All Governmental Approvals which
are required to be obtained by, in the name of or on behalf of the Trinidad
Project Borrower or, to the knowledge of the Trinidad Project Borrower, any
other party to any Transaction Docu ment in connection with (a) the issuance of
the Trinidad Project Note and (b) the execution, delivery and performance by the
Trinidad Project Borrower or any other party to any Transaction Document of the
Transaction Documents have been duly obtained and are in full force and effect,
other than, in each case, those Governmental Approvals which the failure to so
obtain could not reasonably be expected to result in a Material Adverse Effect.
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Section 3.14 MARGIN STOCK. The Trinidad Project Borrower is not
engaged, directly or indirectly, principally, or as one of its important
activities, in the business of extending, or arranging for the extension of,
credit for the purposes of purchasing or carrying any "margin stock" (as defined
in Regulation, T, U or X of the Board of Governors of the Federal Reserve
System). No part of the proceeds of the Trinidad Project Loan will be used for
"purchasing" or "carrying" (as defined in Regulation, T, U or X of the Board of
Governors of the Federal Reserve System) any margin stock or for extending
credit to others for the purpose of purchasing or carrying any margin stock, or
for any purpose which would violate, or cause a violation of, Regulation, T, U
or X of the Board of Governors of the Federal Reserve System.
Section 3.15 TAXES. The Trinidad Project Borrower has filed or caused
to be filed all Tax Returns required by Applicable Law to be filed by it, and
has paid all Taxes shown to be due and payable by it on such Tax Returns or any
assessments made against it or any of its properties and all other Taxes, fees
or other charges imposed on it by any Governmental Authority other than Taxes,
fees, assessments or other charges which are not delinquent and remain payable
without penalty or which the Trinidad Project Borrower is contesting in good
faith and for which the Trinidad Project Borrower is maintaining adequate
reserves (to the extent required by GAAP) in connection therewith.
Section 3.16 OWNERSHIP OF THE TRINIDAD PROJECT BORROWER. As of the date
of this Agreement, York Holdings (Caymans) LLC and Xxxxxx X. Xxxxxxxx are the
sole members of the Trinidad Project Borrower.
Section 3.17 DISCLOSURE. Each of the Preliminary Offering Circular and
the Final Offering Circular as of its date did not, and the Final Offering
Circular (as the same may have been amended or supplemented) as of the Closing
Date will not, contain any untrue statement of a material fact with respect to
the Trinidad Project Borrower or omit to state a material fact necessary to make
the statements made therein with respect to the Trinidad Project Borrower, in
light of the circumstances under which they were made, not misleading.
Section 3.18 REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by the Trinidad Project Borrower and each of its Affiliates, and
to its knowledge, each other party in any Transaction Document are true and
correct, except to the extent such misrepresentation could not reasonably be
expected to have a Material Adverse Effect.
Section 3.19 USE OF PROCEEDS. All proceeds of the Trinidad Project Loan
will be used in accordance with this Agreement and for no other use.
Section 3.20 TRINIDAD PROJECT DOCUMENTS. The Bond Trustee has received
a complete copy of each Trinidad Project Document then in effect (including all
exhibits, schedules and disclosure letters referred to therein or delivered
pursuant thereto, if any).
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ARTICLE 4
COVENANTS AND AGREEMENTS OF THE TRINIDAD PROJECT BORROWER
The Trinidad Project Borrower hereby covenants and agrees that from the
date of this Agreement, it shall faithfully observe and fulfill, and shall cause
to be faithfully observed and fulfilled, each and all of the following covenants
until all amounts due under this Agreement, each Trinidad Project Note, the
Indenture and the Securities shall have been indefeasibly paid in full:
Section 4.1 PAYMENT OF PRINCIPAL OF AND INTEREST ON THE TRINIDAD
PROJECT LOAN. The Trinidad Project Borrower shall promptly pay or cause to be
paid the principal of and interest on each Trinidad Project Loan according to
the terms hereof.
Section 4.2 REPORTING REQUIREMENTS. The Trinidad Project Borrower
shall furnish or cause to be furnished to Funding Company:
(a) as soon as available and in any event within sixty (60) days after
the end of the first three (3) quarterly accounting periods in each fiscal year
of the Trinidad Project Bor rower (commencing with the quarter ending August 31,
1998) and, with respect to item (iii) herein, the final quarter of each fiscal
year, Unaudited Financial Statements of the Trinidad Project Borrower and the
Trinidad Guarantor, accompanied by an Officer's Certificate of the Trinidad
Project Borrower and the Trinidad Guarantor confirming (i) that such Unaudited
Financial Statements fairly present the financial condition and results of
operations of the Trinidad Project Borrower and the Trinidad Guarantor on the
dates and for the periods indicated in accordance with GAAP (other than with
respect to the notes and other normally recurring year-end adjustments), (ii)
that no Trinidad Default has occurred and no Trinidad Event of Default has
occurred and is continuing, or, if such event has occurred, describing the
nature thereof and (iii) the Debt Service Coverage Ratios for the historical
three (3) quarters and the final quarter of such fiscal year together with a
reconciliation of each quarterly Debt Service Coverage Ratio to the annual Debt
Service Coverage Ratio;
(b) as soon as available and in any event within one hundred twenty
(120) days after the end of each fiscal year of the Trinidad Finance Parties
(commencing with the fiscal year ending February 28, 1999), Annual Audited
Consolidated Financial Statements, accompanied by an audit opinion thereon by
the Auditors, which opinion shall state that (i) the financial statements of the
Trinidad Finance Parties present fairly, in all material respects, the financial
position, results of operations and cash flows of the Trinidad Finance Parties
at the end of, and for, such fiscal year in accordance with GAAP, (ii) nothing
has come to their attention that any Trinidad Default or Trinidad Event of
Default, as they relate to accounting matters, has occurred and is continuing,
or, if such event has occurred, describing the nature thereof and (iii) the
annual Debt Service Coverage Ratio for such fiscal year.
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(c) promptly and in any event within five (5) days after an Authorized
Officer of the Trinidad Project Borrower obtains actual knowledge of any
Trinidad Default or Trinidad Event of Default, a written notice describing such
Trinidad Default or Trinidad Event of Default and any action being or proposed
to be taken with respect thereto;
(d) all other information reasonably requested by Funding Company to
enable Funding Company to satisfy its obligations under the Indenture;
(e) written notice of any event or condition that could reasonably be
expected to result in a Material Adverse Effect;
(f) notice of any litigation, pending or threatened, against the
Trinidad Project Borrower of which it has actual knowledge which could
reasonably be expected to result in a Material Adverse Effect;
(g) copies of all material notices delivered to it by the Trinidad
Guarantor pursuant to any Transaction Document; and
(h) promptly upon request, a list of the current balances of each of
the Trinidad Depositary Accounts.
Section 4.3 MAINTENANCE OF EXISTENCE. The Trinidad Project Borrower
shall at all times preserve and maintain in full force and effect (a) its
existence as an exempt society with restricted liability and (b) all of its
powers, rights, privileges and licenses necessary for the transaction of its
business as conducted or proposed to be conducted except, in the case of this
clause (b) where failure to do so could not reasonably be expected to result in
a Material Adverse Effect.
Section 4.4 COMPLIANCE WITH LAWS. The Trinidad Project Borrower shall
comply with all Applicable Laws (including Environmental Laws), except where
non-compliance could not reasonably be expected to result in a Material Adverse
Effect.
Section 4.5 GOVERNMENTAL APPROVALS; TITLE. (a) The Trinidad Project
Borrower shall, to the extent such action is within its control, cause the
Trinidad Obligor to obtain in a timely manner, maintain in full force and effect
(or where appropriate, renew) and comply with all Governmental Approvals
(including, without limitation, those required under Environmental Laws)
required at any time or advisable (i) in connection with the construction,
maintenance, ownership and good and orderly operation of the Trinidad Project,
as currently conducted and as proposed to be conducted, (ii) for the Trinidad
Project to produce, sell and deliver electricity in accordance with and as
contemplated by the Trinidad Project Documents and (iii) to execute and deliver
the Transaction Documents to which it is a party and to perform its obligations
thereunder, unless in each case the failure to so obtain,
10
maintain or comply with such Governmental Approvals could not reasonably be
expected to result in a Material Adverse Effect.
(b) The Trinidad Project Borrower shall preserve and maintain good,
valid and, where applicable, marketable title to all of its properties and
assets subject to no Liens other than Trinidad Permitted Project Liens except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
Section 4.6 EXERCISE OF RIGHTS AND PERFORMANCE UNDER TRANSACTION
DOCUMENTS. (a) The Trinidad Project Borrower shall exercise all of its rights
under any Transaction Document to which it is party unless failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
(b) The Trinidad Project Borrower shall take all reasonable action
within its control required to ensure that each Transaction Document to which it
is a party is in proper legal form under the respective governing laws selected
for such Transaction Document for the enforcement thereof in such jurisdictions
without further action on the part of Funding Company, the Collateral Agent or
the Bond Trustee.
(c) The Trinidad Project Borrower shall perform all of its covenants
and obligations under each Transaction Document to which it is party and shall
take all necessary action to prevent the termination or cancellation of any
Transaction Document to which it is a party except where such nonperformance or
nonobservance, or the result of such termination or cancellation, could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.7 ADDITIONAL DOCUMENTS; FILINGS AND RECORDINGS. (a) The
Trinidad Project Borrower shall execute and deliver, from time to time as
reasonably requested by Funding Company, the Bond Trustee or the Collateral
Agent, at the Trinidad Project Borrower's expense, such documents in connection
with the rights and remedies of the Secured Parties granted or provided for by
this Agreement or the other Transaction Docu ments to which the Trinidad Project
Borrower is a party and to consummate the transactions contemplated therein.
(b) The Trinidad Project Borrower shall, at its own expense, take all
reasonable actions necessary to establish, maintain, protect, perfect and
continue the perfection and priority of the Liens created by the Trinidad
Security Documents and to protect and enforce its rights and title and the
rights and title of the Secured Parties to the Trinidad Collateral in such
manner and in such places as in the opinion of counsel to the Trinidad Project
Borrower, the Bond Trustee or the Collateral Agent are required by Applicable
Law in order to fully preserve and protect the rights of Funding Company, the
Collateral Agent or the Bond Trustee thereunder, except where the failure to do
so could not reasonably be expected to have a Material Adverse Effect.
11
Section 4.8 PAYMENT OF TAXES AND CLAIMS. The Trinidad Project Borrower
shall, prior to the time penalties shall attach thereto, pay and discharge or
cause to be discharged all Taxes, assessments and governmental charges or levies
imposed upon it, its income or its properties; PROVIDED that the Trinidad
Project Borrower shall not be required to pay any such obligation if (a) such
charges are being diligently contested in good faith by appropriate proceedings,
(b) during the period of such contest the enforcement of any contested item is
effectively stayed, and (c) adequate reserves are established with respect to
the contested items (to the extent required by GAAP).
Section 4.9 BOOKS AND RECORDS. The Trinidad Project Borrower shall keep
proper books of record and account truly and fairly reflecting the financial
condition and results of operations of the Trinidad Project Borrower in which
full, true and correct entries in conformity with GAAP and all Applicable Laws
shall be made of all dealings and transactions in relation to its business and
activities. Upon five (5) days written notice, the Trinidad Project Borrower
shall permit officers and designated representatives of Funding Company, the
Collateral Agent, the Bond Trustee, the Depositary Bank or any duly authorized
agent or representative thereof (including without limitation, the Independent
Engineer) to visit and inspect, from time to time during normal business hours,
any of the properties of the Trinidad Project Borrower and to examine and make
copies of the books of record and account of the Trinidad Project Borrower and
discuss the affairs, finances and accounts of the Trinidad Project Borrower
with, and be advised as to the same by, its officers, all at such reasonable
times and intervals and to such reasonable extent as Funding Company, the
Collateral Agent, the Bond Trustee, Depositary Bank and duly authorized agent or
representative thereof (including, without limitation, the Independent Engineer)
may reasonably request.
Section 4.10 [Intentionally Omitted]
Section 4.11 AUDITORS. The Trinidad Project Borrower shall retain a
nationally recognized independent accounting firm in the United States to act as
its auditors and authorize such firm to communicate directly with Funding
Company, the Bond Trustee and the Collateral Agent. The Trinidad Project
Borrower shall also appoint an auditor who is a member of, and holds a
practicing certificate from, the Institute of Chartered Accountants of Barbados.
Section 4.12 TRINIDAD REVENUE ACCOUNT. The Trinidad Project Borrower
shall take all actions as may be necessary to cause all Cash Flows of the
Trinidad Project Borrower or Trinidad Obligor to be deposited in the Trinidad
Revenue Account in accordance with the Trinidad Depositary Agreement and to be
disbursed in accordance with the provisions set forth in ARTICLE 3 (The
Accounts) of the Trinidad Depositary Agreement.
Section 4.13 PROJECT IMPLEMENTATION. The Trinidad Project Borrower
shall, to the extent such action is within its control, cause the Trinidad
Obligor to operate the Trinidad
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Project and all other property and rights in accordance with customary industry
practice and maintain the Trinidad Project and other property in good repair and
condition (ordinary wear and tear excepted in respect thereof).
Section 4.14 PERMITTED INDEBTEDNESS. The Trinidad Project Borrower
shall not create or incur or suffer to exist any Indebtedness except the
following (collectively, "TRINIDAD PERMITTED PROJECT INDEBTEDNESS"):
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness incurred pursuant to the Guarantee by the Trinidad
Guarantor;
(c) Indebtedness incurred to finance in whole or in part the making of
capital improvements to the Trinidad Project required to maintain compliance
with Applicable Law; PROVIDED that the Independent Engineer shall have certified
to the Bond Trustee that:
(i) (x) an Officer's Certificate of an Authorized
Officer of the Trinidad Obligor certifying that such Indebtedness is
required to make a capital improvement to the Trinidad Project that is
required in order to maintain compliance with Applica ble Law is
reasonable and (y) that such Indebtedness is the most effective means
of making such capital expenditure and, if applicable, completing the
Trinidad Project; and
(ii) after giving effect to the incurrence of such
Indebtedness, the minimum Projected Debt Service Coverage Ratio for (A)
the next four consecutive fiscal quarters, commencing with the quarter
in which such Indebtedness is to be incurred, taken as one annual
period, and (B) each subsequent fiscal year through the Final Maturity
Date for the Securities, will not be less than 1.2 to 1;
(d) Indebtedness incurred to finance in whole or in part the making of
capital improvements to the Trinidad Project other than those capital
improvements referenced in clause (c) above PROVIDED that:
(i) an Authorized Officer of the Trinidad Obligor
certifies to the Bond Trustee that no Default or Event of Default has
occurred and is continuing or will occur as a result of the incurrence
of such Indebtedness;
(ii) the Independent Engineer shall have certified to
the Bond Trustee that after giving effect to the incurrence of such
Indebtedness, (x) the minimum Projected Debt Service Coverage Ratio for
(A) the next four consecutive fiscal quarters commencing with the
quarter in which such Indebtedness is to be incurred, taken as one
annual period and (B) each subsequent fiscal year through the Final
Maturity Date for the Securities, will not be less than 1.5 to 1, and
(y) the average
13
Projected Debt Service Coverage Ratio for all succeeding fiscal years
until the Final Maturity Date for the Securities will not be less than
1.55 to 1; and
(iii) written confirmation from each Rating Agency
then rating the Securities that the incurrence of such Indebtedness
will not result in a Ratings Downgrade;
(e) Indebtedness in the form of a working capital facility for the
benefit of the Trinidad Project in an aggregate principal amount not to exceed
$3,000,000; PROVIDED that the terms of such facility provide that the aggregate
amount of all loans outstanding thereunder shall be reduced to zero for ten (10)
days in each fiscal year;
(f) To the extent such obligations would constitute Indebtedness,
obligations of the Trinidad Finance Parties under the Trinidad Project
Documents;
(g) Indebtedness related to Trinidad Permitted Project Liens; and
(h) Subordinated Indebtedness from any other Trinidad Finance Party.
Section 4.15 PERMITTED LIENS. The Trinidad Project Borrower shall not
create or suffer to exist or permit any Lien upon or with respect to any of its
properties except the following (collectively, "TRINIDAD PERMITTED PROJECT
LIENS"):
(a) Liens specifically permitted or required by, or created by, any
Security Document or any Transaction Document including, without limitation, the
Trinidad PPA;
(b) Liens for taxes, assessments or governmental charges which are
either not yet due or which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves are established in
accordance with GAAP; and
(c) other Liens incidental to the conduct of the Trinidad Project
Borrower's business or the ownership of properties and assets which were not
incurred in connection with the borrowing of money or the obtaining of advances
or credit (other than Liens arising by operation of law or statute in the
ordinary course of business), and which do not in the aggregate materially
impair the use thereof in the operation of the Trinidad Project Borrower's
business.
Section 4.16 CONTINGENT LIABILITIES. The Trinidad Project Borrower
shall not contingently or otherwise be or become liable, directly or indirectly,
in connection with any Guarantee Obligation except for endorsements and similar
obligations in the ordinary course of business.
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Section 4.17 NATURE OF BUSINESS. The Trinidad Project Borrower shall
not engage in any business other than its existing business including and as
otherwise contemplated by the Transaction Documents.
Section 4.18 PROHIBITION ON FUNDAMENTAL CHANGES. The Trinidad Project
Borrower shall not enter into any transaction of merger or consolidation, change
its form of organization or its business, liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution), discontinue its business or purchase
or otherwise acquire all or substantially all of the assets of any other Person,
except, in any such case, as contemplated by the Finance Documents.
Section 4.19 SALE OF ASSETS. The Trinidad Project Borrower shall not
sell or transfer any assets or assign any rights other than (so long as no
Trinidad Default or Trinidad Event of Default has occurred and is continuing)
those in the ordinary course of its business for cash equal to the fair market
value of such assets at the time of sale, except, in any such case, (i) as
contemplated by the Finance Documents or (ii) in connection with the sale of its
interests in the Trinidad Obligor on the terms and conditions set forth in the
Indenture.
Section 4.20 SUBSIDIARIES; ADVANCES, INVESTMENTS AND LOANS. The
Trinidad Project Borrower shall not form or have any Subsidiaries (other than
the Trinidad Guarantor and the Trinidad Obligor), make investments, loans or
advances or acquire the stock, obligations or securities of any Person; PROVIDED
that the Trinidad Project Borrower may invest amounts on deposit in the Trinidad
Depositary Accounts, subject to limitations as to term and duration, in Cash
Equivalents; PROVIDED further that the Trinidad Project Borrower may make loans
to the other Trinidad Finance Parties provided that such loans shall be
Subordinated Indebtedness of such other Trinidad Finance Party; PROVIDED FURTHER
that the Trinidad Project Borrower shall be entitled to receive equity
contributions from and make equity contributions to the Trinidad U.S. Parent,
the Trinidad Cayman Parent, or any other Trinidad Finance Party.
Section 4.21 TRANSACTIONS WITH AFFILIATES. The Trinidad Project
Borrower shall not enter into any transaction or series of related transactions,
whether or not in the ordinary course of business, with any Affiliate of the
Trinidad Project Borrower which is not on terms and conditions no less favorable
as would be obtained in a comparable arm's-length transaction with a Person
other than an Affiliate of the Trinidad Project Borrower, except that the
Trinidad Project Borrower may perform its obligations under and engage in the
transactions contemplated by the Transaction Documents.
Section 4.22 RESTRICTED PAYMENTS. The Trinidad Project Borrower shall
not make any Restricted Payments except as permitted under the Finance
Documents.
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Section 4.23 AMENDMENTS TO TRINIDAD PROJECT DOCUMENTS. Other than with
respect to Permitted Contract Buy-Outs, the Trinidad Project Borrower (nor any
Affiliate thereof) shall not, directly or indirectly, (x) permit the assignment
of the rights and obligations of any party to any Trinidad Project Document or
(y) terminate, amend, modify, replace, supplement or waive, or permit or consent
to the termination, modification, replacement, supplement or waiver of, any of
the provisions of, or give any consent under, any of the Trinidad Project
Documents unless (a) the Trinidad Project Borrower certifies that such
assignment, termination, amendment, modification, replacement, supplement,
waiver or consent could not reasonably be expected to result in a Material
Adverse Effect, and (b) in the case of any assignment, termination, amendment,
modification, replacement, supplement, waiver or consent with respect to the
Trinidad PPA or any other Trinidad Project Document which affects the Cash Flows
to be received by the Trinidad Project Borrower, in addition to the conditions
set forth in clause (a) above, (i) the Independent Engineer certifies that such
assignment, termination, amendment, modification, replacement, supplement,
waiver or consent could not reasonably be expected to result in a Material
Adverse Effect and (ii) the Trinidad Project Borrower provides to the Bond
Trustee written confirmation from each Rating Agency then rating the Securities
that such assignment, termination, amendment, modification, replacement,
supplement, waiver or consent will not result in a Ratings Downgrade.
Section 4.24 ASSIGNMENT OF OBLIGATIONS; ADDITIONAL AGREEMENTS. The
Trinidad Project Borrower shall not assign any of its rights or obligations
under any Transaction Document and shall not enter into any additional contract,
agreement or undertaking if the transactions contemplated by such assignment or
additional contract, agreement or undertaking could reasonably be expected to
have a Material Adverse Effect; PROVIDED that the Trinidad Project Borrower
shall be permitted to assign any of its rights or obligations hereunder if such
assignment is necessary to avoid any adverse tax consequences resulting from a
change in Applicable Law (or the interpretation thereof) and (a) no Default or
Event of Default shall exist and be continuing at such time, (b) the Bond
Trustee shall receive written confirmation from each Rating Agency that such
assignment shall not result in a Ratings Downgrade and (c) the Bond Trustee
receives satisfactory Opinions of Counsel of the Trinidad Project Borrower
stating that (i) such assignment is enforceable and creates a legal, valid and
binding obligation of the Trinidad Project Borrower, (ii) such assignment has no
adverse consequences upon the rights and remedies of the Secured Parties with
respect to the Collateral and (iii) such assignment shall have no adverse
effects on the tax structure of the transaction prior to the assignment or upon
payments to or from any Project Obligor or otherwise related to the Securities
and each of the Project Notes.
Section 4.25 MODIFICATIONS OF FORMATION DOCUMENTS. The Trinidad Project
Borrower shall not amend or modify its articles of organization, certificate of
organization, by-laws or other formation documents or change its fiscal year,
except if such amendment, modification or change which could not reasonably be
expected to result in a Material Adverse Effect.
16
Section 4.26 TAXATION. (a) All payments made by the Trinidad Project
Borrower in respect of the Trinidad Project Loan shall be made free and clear
of, and without withholding or deduction for or on account of, any and all
Taxes. The Trinidad Project Borrower shall pay such additional amounts as may be
necessary to ensure that the amounts received by Funding Company after such
withholding or deduction, if any, shall equal the respective amounts of
principal and interest that would have been receivable in the absence of such
withholding or deduction.
(b) The Trinidad Project Borrower shall promptly pay when due any
present or future stamp, court or documentary Taxes or any other excise or
property Taxes, charges or similar levies that arise in any jurisdiction from
the execution or delivery of the Trinidad Project Note or any other document
referred to herein or therein, excluding (i) Taxes imposed on or measured by the
net income or capital of Funding Company and (ii) any such Taxes, charges or
similar levies imposed by any jurisdiction other than Barbados or Trinidad.
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1 EVENTS OF DEFAULT DEFINED. The term "TRINIDAD EVENT OF
DEFAULT," whenever used herein, shall mean any of the following events (whatever
the reason for such event and whether it shall be voluntary or involuntary or
shall come about or be effected by operation of law, or be pursuant to or in
compliance with any Applicable Law), and any such event shall continue to be a
Trinidad Event of Default if and for so long as it shall not have been remedied
or waived in accordance with the terms of this Agreement, the Indenture and the
Intercreditor Agreement:
(a) The Trinidad Project Borrower shall fail to pay any
principal of, premium (if any), interest on, or other amounts due in
respect of or any other obligations on the Trinidad Project Loan when
the same becomes due and payable, whether by sched uled maturity or
required prepayment or redemption or by acceleration or otherwise and
such failure continues for ten (10) or more days following the due date
for payment after application by the Collateral Agent, in accordance
with the Trinidad Depositary Agreement, of (x) any amounts in the Debt
Service Reserve Account and (y) any amounts otherwise advanced by the
Trinidad Project Borrower;
(b) any representation or warranty made by the Trinidad
Project Borrower in this Agreement or in any other Transaction Document
to which the Trinidad Project Borrower is a party, or any
representation, warranty or statement in any certificate, financial
statement or other document furnished to Funding Company, the Bond
Trustee or any other Holder by or on behalf of the Trinidad Project
17
Borrower hereunder or thereunder, shall prove to have been untrue or
misleading in any material respect as of the time made, confirmed or
furnished and such fact, event or circumstance that gave rise to such
inaccuracy has resulted in, or could reasonably be expected to result
in, a Material Adverse Effect, and such fact, event or circumstance
shall continue uncured for thirty (30) or more days from the date an
Authorized Officer of the Trinidad Project Borrower obtains actual
knowledge thereof; PROVIDED that if the Trinidad Project Borrower
commences and diligently pursues efforts to cure such fact, event or
circumstance within such thirty (30) day period and delivers written
notice thereof to the Bond Trustee, the Trinidad Project Borrower may
continue to effect such cure and such misrepresentation shall not be
deemed a "Trinidad Event of Default" for an additional ninety (90) days
so long as the Trinidad Project Borrower is diligently pursuing such
cure;
(c) The Trinidad Project Borrower shall fail to perform or
observe any covenant or agreement contained in SECTION 4.3 (Maintenance
of Existence), SECTION 4.6 (Exercise of Rights and Performance Under
Transaction Documents), SECTION 4.7 (Additional Documents; Filings and
Recordings), SECTION 4.8 (Payment of Taxes and Claims), SECTION 4.9
(Books and Records), SECTION 4.13 (Project Implementation), SECTION
4.14 (Permitted Indebtedness), SECTION 4.15 (Permitted Liens), SECTION
4.16 (Contingent Liabilities), SECTION 4.17 (Nature of Business),
SECTION 4.18 (Prohibition on Fundamental Changes), SECTION 4.19 (Sale
of Assets), SECTION 4.22 (Restricted Payments), SECTION 4.23
(Amendments to Trinidad Project Documents), SECTION 4.24 (Assignment of
Obligations; Additional Agreements), SECTION 4.25 (Modification of
Formation Documents), and SECTION 4.26 (Taxation) and such failure
shall continue uncured for thirty (30) or more days from the date an
Authorized Officer of the Trinidad Project Borrower obtains actual
knowledge of such failure;
(d) The Trinidad Project Borrower shall fail to perform or
observe any of the other covenants contained in this Agreement or in
the other Finance Documents to which it is party (other than those
referred to in clause (c) of this SECTION 5.1) and such failure shall
continue uncured for sixty (60) or more days from the date an
Authorized Officer of the Trinidad Project Borrower obtains actual
knowledge of such failure; PROVIDED that if the Trinidad Project
Borrower commences and diligently pursues efforts to cure such default
within such sixty (60) day period and delivers written notice thereof
to the Bond Trustee, the Trinidad Project Borrower may continue to
effect such cure of the default and such default shall not be deemed a
"Trinidad Event of Default" for an additional thirty (30) days so long
as the Trinidad Project Borrower is diligently pursuing such cure;
(e) The Trinidad Project Borrower or any other party to a
material Trinidad Project Document shall (i) apply for or consent to
the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or all or a
18
substantial part of its property, (ii) admit in writing its inability
or be generally unable to pay its debts as such debts become due, (iii)
make a general assignment for the benefit of its creditors, (iv)
commence a voluntary case under the Federal Bankruptcy Code, (v) file a
petition seeking to take advantage of any other Debtor Relief Law, (vi)
fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case under
the Federal Bankruptcy Code or any other Debtor Relief Law or (vii)
take any action for the purpose of effecting any of the foregoing
including, without limitation, commencing a vote of the managers in
connection with any of the foregoing;
(f) a proceeding or case shall be commenced without the
application or consent of the Trinidad Project Borrower or any other
party to a material Trinidad Project Document in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution,
winding-up or the composition or readjustment of its debts or (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like
of the Trinidad Project Borrower or all or a substantial part of its
property under any Debtor Relief Law, and such proceeding or case shall
continue undismissed, or any order, judgment or decree approving any of
the foregoing shall be entered and continue unstayed and in effect, for
a period of sixty (60) or more consecutive days, or any order for
relief against the Trinidad Project Borrower or any other party to a
material Trinidad Project Document shall be entered in any involuntary
case under the Federal Bankruptcy Code or any other Debtor Relief Law;
(g) one or more final, non-appealable judgments, decrees or
orders shall be entered against the Trinidad Project Borrower involving
in the aggregate a liability in excess of $5,000,000 (exclusive of
judgment amounts fully covered by insurance or indemnity) or more
against the Trinidad Project Borrower and shall remain unpaid or
unstayed for ninety (90) or more consecutive days after the entry
thereof;
(h) Indebtedness of the Trinidad Project Borrower in excess of
$5,000,000 (other than Indebtedness incurred pursuant to this
Agreement) shall be required to be prepaid, or shall be declared to be
due and payable, other than by regularly scheduled required repayment,
prior to the stated maturity thereof, as a result of the acceleration
of the stated maturity thereof following an event of default
thereunder;
(i) The Governmental Approval of the Trinidad Project Borrower
or any party to a material Trinidad Project Document is revoked,
terminated, withdrawn or ceases to be in full force and effect if such
revocation, termination, withdrawal or cessation could reasonably be
expected to have a Material Adverse Effect; PROVIDED that no such event
shall be a Trinidad Project Event of Default if within sixty (60) days
from the occurrence thereof, (i) the Trinidad Project Borrower
diligently pursues in good faith and (x) obtains an additional
Governmental Approval in substitution therefor or replacement thereof
or (y) causes such Governmental
Approval to be reinstated and (ii) during such sixty (60) day period
no Material Adverse Effect occurs;
(j) A material Trinidad Project Document ceases to be valid
and binding and in full force and effect (other than as permitted
hereunder), any third party thereto denies that it has any liability or
obligation under any Trinidad Project Document and such third party
ceases performance thereunder, or any third party fails to perform its
material obligations thereunder or make any material misrepresentation
thereunder, and in each case such cessation, failure or
misrepresentation has resulted or would reasonably be expected to
result in a Material Adverse Effect;
(k) The Trinidad Project Borrower or any other party shall
fail to perform or observe any of its covenants or obligations
contained in any Trinidad Project Document to which it is a party if
such failure shall result in the receipt of a notice of termination
(subject to applicable cure periods) of such Trinidad Project Document
or shall otherwise result in a Material Adverse Effect;
(l) Any Security Document related to any Trinidad Collateral
shall cease to be in full force and effect or any Lien purported to be
granted therein shall cease to be a valid and perfected Lien in favor
of the Collateral Agent for the benefit of the Secured Parties on all
or a material portion of the Trinidad Collateral described therein with
the priority purported to be created thereby; PROVIDED that the
Trinidad Project Borrower shall have ten (10) days to cure any such
cessation (if curable) or to furnish to the Bond Trustee, Collateral
Agent or the Depositary Bank all documents and instruments required to
cure any such cessation (if curable);
(m) An Indenture Event of Default shall occur and be
continuing; and
(n) All or a material part of the Trinidad Project is
destroyed or suffers a material actual loss or material damage;
PROVIDED that the occurrence of such an event shall not be a Trinidad
Event of Default if within thirty (30) days from the occurrence of such
event, there exists an Approved Restoration Plan in respect of the
remediation of the damage, loss or taking giving rise to such event.
Section 5.2 REMEDIES UPON A TRINIDAD EVENT OF DEFAULT. Subject to the
Intercreditor Agreement, if one or more Trinidad Events of Default shall have
occurred and be continuing, then:
(i) in the case of a Trinidad Event of Default described in
clause (a) or (m) (relating to an Indenture Event of Default under
clause (a) of SECTION 5.1 (Events of Default) of the Indenture)), upon
the written and unrescinded direction of (A) the One-Third Holders or
(B) the Bond Trustee, notwithstanding the absence of direction from the
One-Third Holders, if in the good faith exercise of its discretion the
20
Bond Trustee determines that such action is necessary to protect the
interests of the Holders, Funding Company shall declare the principal
amount of all Trinidad Project Notes, all interest accrued and unpaid
thereon, all premium (if any), all other amounts payable in respect
thereof and all other amounts payable under this Agreement, to be due
and payable, whereupon the same shall become immediately due and
payable without presentment, demand, protest or further notice of any
kind, all of which are hereby waived;
(ii) in the case of a Trinidad Event of Default described in
clause (b), (c), (d), (g), (h), (i). (j), (k), (l), (m) (except with
respect to an Indenture Event of Default under clause (f) or (g) of
SECTION 5.1 (Events of Default) of the Indenture), or (n) of SECTION
5.1 (Events of Default), upon the written and unrescinded direction of
(A) the Majority Holders or (B) the Bond Trustee, notwithstanding the
absence of direction from the Majority Holders if in the good faith
exercise of its discretion the Bond Trustee determines that such action
is necessary to protect the interests of the Holders, Funding Company
shall declare the outstanding principal amount of all Trinidad Project
Notes, all interest accrued and unpaid thereon, all premium (if any),
all other amounts payable in respect thereof and all other amounts
payable under this Agreement, to be due and payable, whereupon the same
shall become immediately due and payable without presentment, demand,
protest or further notice of any kind, all of which are hereby waived;
and
(iii) in the case of a Trinidad Event of Default described in
clause (e), (f) or (m) (with respect to an Indenture Event of Default
under clause (f) or (g) of SECTION 5.1 (Events of Default) of the
Indenture) the entire outstanding principal amount of all Trinidad
Project Notes, all interest accrued and unpaid thereon, all premium (if
any), all other amounts payable in respect thereof and all other
amounts payable under this Agreement shall automatically become due and
payable without presentment, demand, protest or notice of any kind, all
of which are hereby waived.
Section 5.3 CONTINUING LIEN. (a) The Liens on and security interests in
the Trinidad Collateral granted in this Agreement, the Trinidad Security
Documents and the other Finance Documents to which the Trinidad Project Borrower
is a party secure all Indebtedness and all obligations of the Trinidad Project
Borrower owed to Funding Company in connection with the Trinidad Project Loan of
whatever kind or character, whether now owing, hereafter arising or hereafter to
be performed.
(b) Notwithstanding anything to the contrary in this Agreement, the
Trinidad Security Documents or the other Finance Documents to which the Trinidad
Project Borrower is a party, if on the date the principal balance of the
Securities is fully paid (the "PAY-OFF DATE") any other amounts owed by the
Trinidad Project Borrower hereunder remain to be paid, Funding Company shall not
be obligated to release any Trinidad Collateral remaining
21
subject to the Trinidad Security Documents, and such Trinidad Collateral shall
continue to secure the payment of such amounts as of the Pay-off Date.
Section 5.4 DEFENSE OF ACTIONS. Subject to the Intercreditor Agreement,
upon the occurrence and during the continuance of a Trinidad Event of Default,
Funding Company may (but shall not be obligated to) commence, appear in or
defend any action or proceeding purporting to affect the Trinidad Project Loan,
the Trinidad Project Notes or the respective rights and obligations of Funding
Company and any other Person pursuant to this Agreement, the Trinidad Security
Documents or any other Finance Document to which the Trinidad Project Borrower
is a party. Funding Company may (but shall not be obligated to) pay all
necessary expenses, including reasonable attorneys' fees and expenses, incurred
in connection with such proceedings or actions, which expenses the Trinidad
Project Borrower hereby agrees to repay to Funding Company promptly upon demand.
ARTICLE 6
GENERAL TERMS AND CONDITIONS
Section 6.1 NOTICES. (a) Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be
sufficiently given and shall be deemed given when delivered or mailed by
registered or certified mail, postage prepaid, or sent by overnight delivery or
telecopy to Funding Company, the Trinidad Project Borrower, the Bond Trustee or
the Rating Agencies at their respective addresses specified on SCHEDULE III to
the Indenture, or in each case at such other address as shall be designated by
such Person in a written notice to the other parties hereto.
Section 6.2 AMENDMENTS AND WAIVERS. No waiver, amendment, modification
or termination of any provision of this Agreement, or consent to any departure
by the Trinidad Project Borrower therefrom, shall in any event be effective
unless such waiver, amendment, modification or termination is in writing, is
signed by the parties hereto and is in accordance with the Intercreditor
Agreement and SECTION 7.3 (Amendment of Project Loan Agreements or Project
Notes) of the Indenture. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Section 6.3 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of Funding Company in exercising any right, power or privilege hereunder or
under any other Finance Document and no course of dealing between Funding
Company or the Trinidad Project Borrower shall impair any such right, power or
privilege or operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Finance
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights, powers and
remedies expressly provided herein or in any other Finance Document are
cumulative and not exclusive of any rights, powers or remedies which Funding
Company would
22
otherwise have, all of which may at the discretion of Funding Company, subject
to the Intercreditor Agreement, be pursued separately, successively or
concurrently against the Trinidad Project Borrower, the Collateral or any other
collateral securing the obligations of the Trinidad Project Borrower hereunder.
No notice to or demand on the Trinidad Project Borrower in any case shall
entitle the Trinidad Project Borrower to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of
Funding Company to any other or further action in any circumstances without
notice or demand.
Section 6.4 SEVERABILITY. In case any provision in or obligation under
this Agree ment or any Trinidad Project Note shall be invalid, illegal or
unenforceable in any jurisdic tion, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 6.5 THIRD PARTY BENEFICIARIES. Except as provided in SECTION
6.12 (Successors and Assigns), nothing in this Agreement or in any Trinidad
Project Note, express or implied, shall give or be construed to give any Person,
other than the parties hereto, the Bond Trustee and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Agreement.
Notwithstanding the preceding sentence, no Holder shall have any right to pursue
any remedy hereunder except pursuant to the Intercreditor Agreement and through
the Bond Trustee as permitted under SECTION 5.5 (Control by Holders) of the
Indenture.
Section 6.6 TRINIDAD PROJECT BORROWER IN CONTROL. In no event shall the
rights and interests of Funding Company or the Bond Trustee under this Agreement
and the other Finance Documents to which the Trinidad Project Borrower is a
party be construed to give Funding Company or the Bond Trustee, or be deemed to
indicate that Funding Company or the Bond Trustee has, control of the business,
management or properties of the Trinidad Project Borrower or power over the
daily management functions and operating decisions made by the Trinidad Project
Borrower.
Section 6.7 NUMBER AND GENDER. Whenever used herein, the singular
number shall include the plural and the plural the singular, and the use of any
gender shall be applicable to all genders.
Section 6.8 SECTION HEADINGS. Captions, section headings and the table
of contents appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any provision of this
Agreement.
Section 6.9 GOVERNING LAW; SUBMISSION TO JURISDICTION. (a) This
Agreement is a contract made under the laws of the State of New York of the
United States and shall for all purposes be governed by and construed in
accordance with the laws of such State without
23
regard to the conflict of law rules thereof (other than Section 5-1401 of the
New York General Obligations Law).
(b) Any legal action or proceeding against the Trinidad Project
Borrower with respect to this Agreement may be brought in the courts of the
State of New York in the County of New York or of the United States for the
Southern District of New York and, by execution and delivery of this Agreement,
the Trinidad Project Borrower hereby irrevocably submits and accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. The Trinidad Project Borrower agrees that a judgment,
after exhaustion of all available appeals, in any such action or proceeding
shall be conclusive and binding upon the Trinidad Project Borrower, and may be
enforced in any other jurisdiction by a suit upon such judgment, a certified
copy of which shall be conclusive evidence of the judgment. The Trinidad Project
Borrower hereby irrevocably designates, appoints and empowers Corporation
Service Company with offices on the date hereof at 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents which may be served in
any such action or proceeding. If for any reason such designee, appointee and
agent shall cease to be available to act as such, the Trinidad Project Borrower
agrees to designate a new designee, appointee and agent in New York City on the
terms and for the purposes of this provision satisfactory to the Bond Trustee.
The Trinidad Project Borrower further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to the Trinidad Project Borrower at its address referred to in SECTION
6.1 (Notices), such service to become effective thirty (30) days after such
mailing. Nothing herein shall affect the right of Funding Company to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Trinidad Project Borrower in any other
jurisdiction.
(c) The Trinidad Project Borrower hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Finance Document brought in the courts referred to in
clause (b) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(d) WITH REGARD TO THIS AGREEMENT, THE TRINIDAD PROJECT
BORROWER AND FUNDING COMPANY HEREBY WAIVE THE RIGHT TO A TRIAL
BY JURY.
Section 6.10 LIMITATION OF LIABILITY. The obligations of the Trinidad
Project Borrower hereunder are solely the corporate obligations of the Trinidad
Project Borrower and no recourse shall be had against the Sponsor or any
partner, employee, officer, director,
24
incorporator, Affiliate, agent or servant of the Trinidad Project Borrower, the
Sponsor or any Affiliate thereof (each a "NON-RECOURSE PERSON") with respect to
this Agreement, any of the obligations of the Trinidad Project Borrower
hereunder or any obligation of the Trinidad Project Borrower for the payment of
any amount payable hereunder for any claim based on, arising out of or relating
to this Agreement; PROVIDED, HOWEVER, that nothing in this SECTION 6.10 shall be
deemed to affect or diminish (a) the obligations of any such Non-Recourse Person
under any Transaction Document to which it is party, (b) the rights and remedies
of Funding Company against any such Non-Recourse Person under any Transaction
Document to which any such Non-Recourse Person is a party, (c) the rights and
remedies of Funding Company with respect to the Collateral or (d) the
obligations of any such Non-Recourse Person under any Transaction Document as a
result of such Person's fraud or willful misconduct.
Section 6.11 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which, taken together, shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 6.12 SUCCESSORS AND ASSIGNS. All of the covenants, promises and
agreements in this Agreement by or on behalf of the Trinidad Project Borrower or
Funding Company shall bind and inure to the benefit of their respective
successors and assigns, regardless of whether so expressed, except that the
Trinidad Project Borrower may not assign or transfer all or any part of its
rights and obligations under this Agreement other than with the prior written
consent of the Bond Trustee and in accordance with the Indenture and the
Intercreditor Agreement.
Section 6.13 MAXIMUM INTEREST RATE. Notwithstanding any provision to
the contrary contained herein or in any Trinidad Project Note, at no time shall
the Trinidad Project Borrower be obligated or required to pay interest on the
principal balance due hereunder or thereunder at a rate which could be in excess
of the maximum interest rate permitted by law to be contracted or agreed to be
paid under Applicable Law. If by the terms hereof or of any Trinidad Project
Note, the Trinidad Project Borrower is at any time required or obligated to pay
interest in excess of such maximum rate, then the rate of interest applicable
hereunder or thereunder shall be deemed to be immediately reduced to such
maximum rate and the interest payable shall be computed at such maximum rate.
Section 6.14 ENGLISH LANGUAGE. All documents to be furnished or
communications to be given or made under this Agreement shall be in the English
language or, if in another language, shall be accompanied by a certified
translation into English, which translation shall be the governing version among
the parties hereto.
Section 6.15 ENTIRE AGREEMENT. This Agreement, together with any other
agree ments executed in connection herewith, is intended by the parties hereto
as a final expression
25
of their agreement as to the matters covered hereby and is intended as
a complete and exclusive statement of the terms and conditions hereof.
Section 6.16 SURVIVAL. The representations and warranties of the
Trinidad Project Borrower contained herein shall survive the execution and
delivery of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
26
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
YORK EX INTERNATIONAL SRL
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
YORK POWER FUNDING (CAYMAN) LIMITED
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Director
27
SCHEDULE I
AMORTIZATION OF PRINCIPAL
Principal Percentage of Principal
SCHEDULED PAYMENT DATE AMOUNTS PAYABLE AMOUNTS PAYABLE
April 30, 2000 $1,350,000 1.35%
October 30, 2000 1,338,000 1.34
April 30, 2001 1,650,000 1.65
October 30, 2001 1,602,000 1.60
April 30, 2002 750,000 0.75
October 30, 2002 717,000 0.72
April 30, 2003 547,000 0.55
October 30, 2003 518,000 0.52
April 30, 2004 1,148,000 1.15
October 30, 2004 1,074,000 1.07
April 30, 2005 1,890,000 1.89
October 30, 2005 1,731,000 1.73
April 30, 2006 757,000 0.76
October 30, 2006 681,000 0.68
April 30, 2007 660,000 0.66
October 30, 2007 83,567,000 83.59
-----
100%
EXHIBIT A
FORM OF TRINIDAD PROJECT NOTE
US$[__________] [DATE]
For value received, the undersigned, YORK EX INTERNATIONAL
SRL, a Barbados exempt society with restricted liability (the "TRINIDAD PROJECT
BORROWER"), by this promissory note promises to pay to the order of York Power
Funding (Cayman) Limited, ("FUNDING COMPANY") a limited liability company
incorporated and existing under the laws of the Cayman Islands, at the office of
The Bank of New York, a bank organized and existing under the laws of the State
of New York, located at [ ], in lawful currency of the United States of America
and in immediately available funds, the principal amount of [__________]
(US$[_________]), or if less, the aggregate unpaid and outstanding principal
amount of this Trinidad Project Note advanced by Funding Company to the Trinidad
Project Borrower pursuant to that certain Trinidad Project Loan Agreement, dated
as of August 4, 1998 (the "TRINIDAD PROJECT LOAN AGREEMENT"), by and among the
Trinidad Project Borrower and Funding Company, and as the same may be amended
from time to time, and all other amounts owed by the Trinidad Project Borrower
to Funding Company hereunder.
This is one of the Trinidad Project Notes entered into
pursuant to the Trinidad Project Loan Agreement and is entitled to the benefits
thereof and is subject to all terms, provisions and conditions thereof.
Capitalized terms used and not defined herein shall have the meanings set forth
in APPENDIX A of that certain Trust Indenture, dated as of August 4, 1998 (the
"INDENTURE"), by and between Funding Company and The Bank of New York, a bank
organized and existing under the laws of the State of New York, as Bond Trustee.
Reference is hereby made to the Indenture and the Security
Documents for the provisions, among others, with respect to the custody and
application of the Collateral, the nature and extent of the security provided
thereunder, the rights, duties and obligations of the Trinidad Project Borrower
and the rights of the holder of this Trinidad Project Note.
The principal amount hereof is payable in accordance with the
Trinidad Project Loan Agreement, and such principal amount may be prepaid solely
in accordance with the Trinidad Project Loan Agreement.
The Trinidad Project Borrower further agrees to pay, in lawful
currency of the United States of America and in immediately available funds,
interest from the date hereof on the unpaid and outstanding principal amount
hereof until such unpaid and outstand ing principal amount shall become due and
payable (whether at stated maturity, by acceleration or otherwise) at the rates
of interest and at the times set forth in the Trinidad Project Loan Agreement,
and the Trinidad Project Borrower agrees to pay all other amounts due,
including, without limitation, fees and costs, as stated in the Trinidad Project
Loan Agreement.
Upon the occurrence of any one or more Trinidad Events of
Default (as defined in SECTION 5.1 (Events of Default Defined)), all amounts
then remaining unpaid under this Trinidad Project Note may become or be declared
to be immediately due and payable as provided in the Trinidad Project Loan
Agreement, without notice of default, presentment or demand for payment, protest
or notice of nonpayment or dishonor, or notices or demands of any kind, all of
which are
Exhibit A-1
expressly waived by the Trinidad Project Borrower.
The obligations hereunder are subject to the limitations set
forth in SECTION 6.10 (Limitation of Liability) of the Trinidad Project Loan
Agreement, the provisions of which are hereby incorporated by reference.
THIS TRINIDAD PROJECT NOTE IS A CONTRACT MADE UNDER THE LAWS
OF THE STATE OF NEW YORK OF THE UNITED STATES OF AMERICA AND SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW).
This Trinidad Project Note may be executed in any number of
counterparts, all of which, taken together, shall constitute one and the same
instrument and any of the parties hereto may execute this Trinidad Project Note
by signing any such counterpart.
Exhibit A-2
IN WITNESS WHEREOF, the Trinidad Project Borrower has caused
this Trinidad Project Note to be duly executed.
YORK EX INTERNATIONAL SRL
By:
----------------------------------
Name:
Title:
