Form 234 KGT 9-87A SP2
OPIC Contract of Insurance No. F158
OVERSEAS PRIVATE INVESTMENT CORPORATION
CONTRACT OF INSURANCE (the "Contract")
Against
Inconvertibility
Expropriation
Political Violence
Interference with Operations,
as defined below,
between the
Overseas Private Investment Corporation ("OPIC")
and
Chaparral Resources, Inc.
00000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000,
(the "Investor")
a corporation organized and existing under the laws of
the State of Delaware,
investing through its wholly-owed subsidiaries Central
Asia Petroleum, Inc ("CAPD"), a corporation organized
and existing under the laws of Delaware, and Central
Asia Petroleum (Guernsey) Limited ("CAPG"), a
corporation organized and existing under the laws of
the Isle of Guernsey
(CAPD and CAPG together, the "Intermediate Subsidiaries").
TABLE OF CONTENTS*
TITLE PAGE
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Table of Defined Terms iii
Article I - Subject of Insurance and Exchange of Promises
1.01 Subject I-1
1.02 Promises I-1
1.03 Maximum Aggregate Compensation Amount I-2
1.04 Full Faith and Credit I-2
1.05 Term I-2
1.06 Premiums and Coverage Elections I-2
1.07 Contingent Coverage Premium 1-3
Article II - Inconvertibility - Scope of Coverage
2.01 Inconvertibility II-1
2.02 Exclusions II-1
Article III - Inconvertibility - Amount of Compensation
3.01 Rate of Compensation for Inconvertibility III-1
3.02 Adjustments III-2
3.03 Limitations III-2
Article IV - Expropriation - Scope of Coverage
4.01 Total Expropriation IV-1
4.02 Partial Expropriation IV-2
4.03 Exclusions IV-3
Article V - Expropriation - Amount of Compensation
5.01 Total Expropriation V-1
5.02 Expropriation of Funds V-1
5.03 Expropriation of Covered Property V-1
5.04 Adjustments V-2
5.05 Limitations V-3
Article VI - Political Violence - Scope of Coverage
6.01 Loss Due to Political Violence VI-1
6.02 Exclusions VI-1
________________________
*/ This Table of Contents applies to all coverages offered by OPIC
whether or not all of those coverages are provided in this Contract.
Article VII - Political Violence - Amount of Compensation
7.01 Basis of Compensation VII-1
7.02 Adjustments VII-2
7.03 Limitations VII-3
7.04 Appraisal VII-3
7.05 Estimated Compensation VII-3
Article VIII - Interference with Operations - Scope of Coverage
8.01 Interference with Operations VIII-1
8.02 Resumption of Project Operations VIII-1
Article IX - Interference with Operations - Amount of Compensation
9.01 Basis of Compensation IX-1
9.02 Adjustments IX-1
9.03 Limitations IX-2
Article X - Procedures
10.01 Application for Compensation X-1
10.02 Assignment to OPIC X-1
10.03 Security X-2
10.04 Excess Salvage Value X-2
10.05 Arbitration X-3
10.06 Election of Covered Amount and Termination of Coverage X-3
10.07 Terminations X-3
10.08 Refund of Premiums X-3
10.09 Legal and Miscellaneous X-4
10.`0 Notices X-4
Article XI - Investor's Duties
11.01 Duties XI-1
11.02 Default XI-5
11.03 Non-Waiver XI-6
11.04 Cure XI-6
Article XII - Miscellaneous XII-1
TABLE OF DEFINED TERMS
(in alphabetical order)
TERM SECTION
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Book Value of the Investment 5.01
Book Value of the Loan 5.01
CAPG Cover Page
Claim Rescission Amount 8.02
Contract Cover Page
Co-venturer 2.02.4
Covered Amount 10.06
Covered Payment 2.01
Covered Property 4.02.2
Effective Date 1.05
Environmental Impact Assessment 11.01.18(b)
Expected Monetary Value of the Reserves 5.05.6
Foreign Currency 5.05.5
Foreign Enterprise 1.01.1
Foreign Governing Authority 1.01.3
Historical Cost 5.03.1(b)
Initial Contingency Period 1.07
Insured Portion 1.01.2
Intermediate Subsidiaries Cover Page
Investment 1.01.2
Investor Cover Page
Investor's Share 5.03.1(b)
KKM 1.01.1
Liability 5.01(a)
Loan 1.01.2(b)
Local Currency 2.01.2(a)(i)
Maximum Aggregate Compensation Amount 1.03
Offshore Account 2.01.1
Offshore Account License 2.01.1
Operative Date 1.07
OPIC Cover Page
Other Insurance 11.01.4
Petroleum 1.01.1
Political Violence 6.01
Premium Due Date 1.06.1
Project 1.01.1
Project Agreement 1.01.1
Project Country 1.01.1
Proved Reserves, Probable Reserves, and Possible 5.05.6
Reserves
Replacement Cost 7.01(b)
Second Contingency Period 1.07
Shares 1.01.2(a)
Subsequent Amendments 11.01.8
Waiting Period 2.01.2(a)
World Bank Guidelines 11.01.17
ARTICLE I - SUBJECT OF INSURANCE AND EXCHANGE OF PROMISES.
----------------------------------------------------------
1.01 SUBJECT.
1. PROJECT. The Investor, through a fifty percent (50%)
shareholding in Karakuduk-Munay, Inc. ("KKM" or the "Foreign Enterprise"),
a closed joint stock company organized and existing under the laws of the
Republic of Kazakhstan, has undertaken a project in the Republic of
Kazakhstan (the "Project Country"), consisting of the development and
production of hydrocarbons ("Petroleum") from the Karakuduk oil field as
described in the Karakaduk Field Development Study dated May 1999 (as so
described, the "Project"). The Project has been undertaken pursuant to an
agreement dated August 30, 1995, as amended by Amendment No. 1, dated
September 17, 1995, between the Ministry of Oil and Gas Industry and KKM,
entitled "Agreement for Exploration, Development and Production of Oil in
Karakuduk Oil Field in Mangistau Oblast of the Republic of Kazakhstan" (the
"Project Agreement"), to which CAPG is not a party, but in which CAPG is
named as the "Investor".
The Investor represents and warrants that it has provided OPIC with
true and complete copies of the Project Agreement and other related Project
documentation.
2. INVESTMENT. For the sole purpose of implementing the Project, the
Investor has contributed or will contribute, through the Intermediate
Subsidiaries, to KKM up to US$105,939,000, consisting of:
(a) US$100,000 in exchange for fifty percent (50%) (100,000
shares) (the "Shares") of the 200,000 shares of capital
stock, constituting the initial equity of KKM, and
(b) up to US$105,839,000 as a loan (the "Loan") to be made to
and repaid by KKM as provided in the Project Agreement
(such contributions together with all retained earnings on
the Shares hereinafter the "Investment").
Ninety percent (90%) (the "Insured Portion") of the Investment is insured
under this Contract.
3. FOREIGN GOVERNING AUTHORITY. The term "Foreign Governing
Authority" means the federal government of Kazakhstan and its agencies and
instrumentalities exercising governmental (as distinguished from
commercial) functions, local and municipal governments, and agencies and
instrumentalities through which governmental functions are exercised,
provided that the actions of such local and municipal governments and
agencies and instrumentalities thereof are attributable under principles of
international law to the federal government.
1.02 PROMISES.
1. OPIC promises that if acts occur during the term of this Contract
which satisfy the requirements for coverage in Articles II, IV, VI, or
VIII, OPIC will pay the Investor the amount of compensation provided in
Articles III, V, VII or IX in accordance with the procedures in Article X.
2. The Investor promises to follow the procedures in Article X and
comply with the duties in Article XI. If the Investor fails to follow the
procedures or perform any its obligations under this Contract, the Investor
may lose rights, including the right to compensation.
1.03 MAXIMUM AGGREGATE COMPENSATION AMOUNT.
OPIC will not pay compensation under this Contract in an aggregate
amount that exceeds $50,000,000 (the "Maximum Aggregate Compensation
Amount").
1.04 FULL FAITH AND CREDIT.
The full faith and credit of the United States is pledged to secure
the full payment by OPIC of its obligations under this Contract.
1.05 TERM.
This Contract shall enter into force on the date upon which it has
been signed by OPIC (the "Effective Date") and shall terminate 20 years
afterward.
1.06 PREMIUMS AND COVERAGE ELECTIONS.
1. TIMING AND RATES. The annual premium rate shall be 2.07% of the
Covered Amount (as defined herein). On or before the Operative Date (as
defined in Section 1.07), and thereafter on or before the first day of each
three-month anniversary of the Operative Date (the Operative Date and each
such anniversary, a "Premium Due Date") the Investor shall
(a) elect amounts of coverage (Section 10.06) and
(b) pay the greater of
(i) the premium due for the coverage period that commences
on such date, and
(ii) the contract administrative fee due for that period.
The contract administrative fee is 0.25% of the Investment (Section 1.01.2)
per annum.
Covered Amount means the U.S. dollar amount of coverage, which amount shall
be elected by the Investor in accordance with the provisions of Section
10.06.
2. INITIAL ELECTION. The Covered Amount and the premium due for the
first three-month period shall be:
Covered Amount $0
x Quarterly Premium Rate 0.5163%
===========
= Premium Due $0
1.07 CONTINGENT COVERAGE PREMIUM. Prior to the Operative Date (as
hereinafter defined), the Investor shall pay, on or before the Effective
Date of this Contract a contingent coverage premium in the amount of
$15,625 for the period from the Effective Date of this Contract through
December 31, 1999 (the "Initial Contingency Period"). The unearned portion
of the $15,625 commitment fee which was previously paid to OPIC by the
Investor for the period from October 1, 1999, through December 31, 1999,
shall be applied to the contingent coverage premium for the Initial
Contingency Period on a pro rata basis for the period from the Effective
Date of this Contract through December 31, 1999. If the Operative Date has
not occurred prior to December 31, 1999, the Investor shall pay an
additional $5,208 for the period from January 1, 2000, through January 30,
2000 (the "Second Contingency Period").
OPIC shall have no liability under this Contract until the Operative Date
which shall be the date, if any, upon which OPIC shall have received from
the Investor the Investor's election of the Covered Amount for the first
three-month coverage period (Section 1.06) which election shall be in
accordance with Section 10.06.
OPIC shall promptly acknowledge receipt of such notice and election of the
Coverage Amount from the Investor and shall notify the Investor of the
additional premium amount due for the first three-month coverage period
calculated by applying the premium rate set forth in Section 1.06.2 to the
Covered Amount elected by the Investor. Such amount shall be calculated
net of the pro rata portion of any unearned contingent coverage premium
paid and shall be payable within 30 days of the date of OPIC's notification
to the Investor of the additional premium due.
If the Investor fails to pay the additional premium due by such date or if
the Operative Date does not occur prior to January 30, 2000, this Contract
shall automatically terminate and be of no further force or effect.
ARTICLE II - INCONVERTIBILITY - SCOPE OF COVERAGE.
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2.01 INCONVERTIBILITY. Subject to the exclusions (Section 2.02) and
limitations (Section 3.02), CAPG or the Foreign Enterprise shall be deemed
unable to make a payment in U.S. dollars of earnings on or returns of the
Investment (a "Covered Payment") and compensation shall be payable only if:
1. CAPG or the Foreign Enterprise is not permitted by the Foreign
Governing Authority to retain in U.S. dollars outside of the
Project Country in an account owned and controlled by CAPG or the
Foreign Enterprise (the "Offshore Account") in accordance with the
terms of License No. 51 for Opening an Offshore Bank Account
issued by the National Bank of the Republic of Kazakhstan, dated
September 28,1999 (the "Offshore Account License"), U.S. dollar
proceeds derived from the sale for export of Petroleum produced by
the Project ("Export Proceeds") from which Covered Payments may be
made; and
2. CAPG or the Foreign Enterprise:
(a) (i) is required by the Foreign Governing Authority to
convert Export Proceeds into the lawful currency of the
Project Country ("Local Currency") to be held in a Local
Currency account in the Project Country and (ii) during the
120 successive days following the date that either CAPG or
the Foreign Enterprise attempts to make a Covered Payment
(the "Waiting Period"), is unable to convert sufficient
Local Currency to make a Covered Payment in U.S. dollars
through any readily available legal channel, whether direct
or indirect (including a parallel market), except at rates
which are less favorable than the rate described under
Section 3.01.2; or
(b) (i) is required by the Foreign Governing Authority to hold
Export Proceeds in the Project Country and (ii) during the
Waiting Period, is unable legally to transfer to the United
States amounts in U.S. dollars as a Covered Payment.
2.02 EXCLUSIONS. No compensation under Section 2.01 shall be payable:
1. PRE-EXISTING RESTRICTIONS. If
(a) notwithstanding the provisions of Section 2.01, on the date
of this Contract a company or an investor, in circumstances
comparable to those of the Foreign Enterprise or the
Investor on said date, including a foreign enterprise or
investor holding a license substantially the same as the
Offshore Account License, would have been legally restricted
from receiving and maintaining in an offshore account Export
Proceeds or making a payment substantially the same as a
Covered Payment; and
(b) the Investor knew or should have known about the restriction.
2. INVESTOR DILIGENCE. Unless, prior to a final claim determination
by OPIC, the Investor and the Foreign Enterprise have made all
reasonable efforts to convert the Local Currency into U.S.
dollars or to transfer U.S. dollars through all customary legal
channels for payments substantially the same as a Covered
Payment;
3. RECONVERSIONS. If the Local Currency represents Export Proceeds
which were previously converted voluntarily by either the Foreign
Enterprise or CAPG into a currency other than the Local Currency;
4. PROVOCATION. If the preponderant cause of the inability to make
a Covered Payment is unreasonable action attributable to the
Investor, the Foreign Enterprise, or any other entity, other than
an entity of the Foreign Governing Authority, which has an equity
interest in the Project, including any successor to or assignee
thereof (each such entity being a "Co-venturer"), including
corrupt practices; or
5. USE RESTRICTED BY EXPROPRIATION. If the use of U.S. dollars or
Local Currency is restricted by an expropriatory action (Section
4.02.1). A claim for such loss may be made under Article IV.
6. OFFSHORE ACCOUNT LICENSE. If, notwithstanding any other
provision of this Article II, the claim arises out or by reason
of the fact that the Foreign Governing Authority fails to approve
or otherwise provide for the extension of the Offshore Account
License or the replacement thereof with a license affording the
Investor rights no less favorable than the rights provided by the
Offshore Account License.
ARTICLE III - INCONVERTIBILITY - AMOUNT OF COMPENSATION.
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3.01 RATE OF COMPENSATION FOR INCONVERTIBILITY.
1. ASSIGNMENT.
(a) If the requirements of Article II are satisfied, then,
subject to the limitations (Section 3.02), OPIC shall pay
compensation in U.S. dollars
(i) on delivery by the Investor of the inconvertible Local
Currency (Section 2.01.2(a)) or nontransferable U.S.
dollars (Section 2.01.2(b)) (in cash or, at OPIC's
option, by draft subject to collection) constituting
the Insured Portion of a Covered Payment, or
(ii) if the Investor is unable legally to deliver the
inconvertible Local Currency or nontransferable U.S.
dollars or, if OPIC so requests, on prior assignment of
the Investor's right to receive the Insured Portion of
a Covered Payment (or, if OPIC so chooses, a beneficial
interest in such right).
(b) If the Investor delivers Local Currency, compensation shall
be the U.S. dollar equivalent of the Local Currency at the
exchange rate (Section 3.01.2) in effect 120 days before
OPIC receives the completed application for compensation
(Section 10.01).
(c) If the Investor delivers non-transferable U.S. dollars or an
assignment, on terms satisfactory to OPIC, of the Investor's
right to receive the Insured Portion of the Covered Payment
or a beneficial interest in such right, compensation shall
be the amount of such U.S. dollars or the U.S. dollar amount
of the right so assigned, as the case may be.
2. EXCHANGE RATE.
(a) The exchange rate shall be the official exchange rate
applicable to a payment substantially the same as a Covered
Payment.
(b) If, however,
(1) U.S. dollars were not generally available at the
applicable official exchange rate; and
(2) exchanges of Local Currency for U.S. dollars to make
payments substantially the same as a Covered Payment were
effected legally and normally through another channel,
then the exchange rate shall be the effective rate obtained
through that channel.
(c) If on any date neither of the above methods of computation
yields a result, then the exchange rate shall be determined
by applying such methods on the first date thereafter on
which such methods of computation do yield a result.
(d) In any case, the applicable exchange rate shall be net of
all deductions ordinarily charged or levied by the Foreign
Governing Authority for the exchange of Local Currency for
U.S. dollars, such as taxes and commissions.
3.02 ADJUSTMENTS.
1. UNDERINSURANCE. If the Investor has elected a Covered Amount
that is less than $50,000,000, and
(a) if the lesser of (i) the Insured Portion of the Book Value
of the Investment (as defined in Section 5.01) and (ii) the
Investor's Share (as defined in 5.03.1(b)) of the Expected
Monetary Value of the Reserves (as defined in 5.05.6) is an
amount greater than $50,000,000, then the amount of OPIC's
compensation under Article III shall be reduced to an amount
calculated by multiplying the amount of compensation
otherwise due by a percentage equal to the quotient of the
Covered Amount elected by the Investor divided by
$50,000,000; or
(b) if the lesser of (i) the Insured Portion of the Book Value
of the Investment and (ii) the Investor's Share of the
Expected Monetary Value of the Reserves is an amount that is
less than $50,000,000, then the amount of OPIC's
compensation under Article III shall be reduced to an amount
calculated by multiplying the amount of compensation
otherwise due by a percentage equal to the quotient of the
Covered Amount elected by the Investor divided by the lesser
of (a) the Investor's Share of the Expected Monetary Value
of the Reserves and (b) the Insured Portion of the Book
Value of Investment, determined as of the date the Investor
first attempted but was unable to convert or transfer
(Section 2.01.2).
3.03 LIMITATIONS.
1. COVERED AMOUNT. Compensation under this Article II shall not
exceed the Covered Amount in effect 120 days before OPIC receives the
application for compensation.
2. QUARTERLY CLAIMS CAP. The Investor shall not file applications
for compensation hereunder, and OPIC shall have no liability for claims
under Inconvertibility coverage (Articles II and III), in excess of
$8,000,000 in any 91-day period.
3. MAXIMUM COMPENSATION. Aggregate compensation under this Contract
shall not exceed an amount equal to the lesser of (a) the Insured Portion
of the Book Value of the Investment and (b) the Investor's Share (as
defined in Section 5.03.1(b)) of the Expected Monetary Value of the
Reserves (as defined in Section 5.05.6).
ARTICLE IV - EXPROPRIATION - SCOPE OF COVERAGE.
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4.01 TOTAL EXPROPRIATION. Subject to the exclusions (Section 4.03),
adjustments (Section 5.04), and limitations (Section 5.05), compensation is
payable for total expropriation (Section 5.01) if an act or series of acts
satisfies all of the following requirements:
1. the acts are attributable to a Foreign Governing Authority which
is in DE FACTO control of the part of the Project Country where the
Project is located;
2. the acts are
(a) violations of international law (without regard to the
availability of local remedies) or
(b) an abrogation, repudiation, or material breach of the
Project Agreement;
provided, however, that no compensation shall be payable for total
expropriation or expropriation of funds (Section 4.02) for acts that
are an abrogation, repudiation or material breach of Sections 4.1.16,
4.1.17, or the eighth paragraph of Section 4.1.20 of the Project
Agreement unless such acts are a violation of international law;
3. the acts directly prevent
(a) the Investor from receiving timely payment in the currency
specified of amounts owed to it by the Foreign Enterprise or from
disposing of the Investment or any rights accruing therefrom; or
(b) the Foreign Enterprise from receiving timely payment in the
currency specified of amounts owed to it in respect of the
Project, except for acts which are the subject of Section 4.02.1
below; or
(c) either the Investor or the Foreign Enterprise from
effectively exercising its fundamental rights or performing its
duties as set forth in the Project Agreement or with respect to
the Project; or
(d) the Foreign Enterprise from exercising effective control, to
the extent provided in the Project Agreement, over a substantial
portion of the Covered Property or from constructing or operating
the Project; or
(e) the Foreign Enterprise from disposing of its interest in the
Project Agreement in accordance with the terms of the Project
Agreement; and
4. the violations of law or abrogation, repudiation or material
breach of the Project Agreement are not remedied (Section 11.01.14)
and the expropriatory effect continues without interruption for six
months.
4.02 PARTIAL EXPROPRIATION. Subject to the exclusions (Section 4.03),
adjustments (Section 5.04), and limitations (Section 5.05);
1. EXPROPRIATION OF FUNDS. Compensation is payable for an
expropriation of Local Currency or U.S. dollars paid or payable to the
Investor which constitutes a Covered Payment if an act or series of acts
(a) satisfies the governmental action, illegality, and duration
requirements (Section 4.01.1, Section 4.01.2(a) and Section
4.01.4); and
(b) directly prevents the Investor or the Foreign Enterprise from
effectively controlling such currency or U.S. dollars in the
Project Country.
2. EXPROPRIATION OF COVERED PROPERTY. Compensation is payable for
the expropriation of Covered Property (as defined herein), if an act or
series of acts satisfies the government action, illegality, and duration
requirements (Section 4.01.1, Section 4.01.2 and Section 4.01.4).
Covered Property means tangible assets
(a) used, intended to be used or produced in connection with the
Project (excluding reserves of any kind);
(b) in which the Foreign Enterprise has an ownership interest;
and
(c) which are located in the Project Country at the time the
expropriation occurs.
4.03 EXCLUSIONS. No compensation for expropriation shall be payable:
1. PROVOCATION. If the preponderant cause of the expropriation is
unreasonable action attributable to the Investor, the Foreign Enterprise,
or a Co-venturer, including corrupt practices; or
2. GOVERNMENT ACTION. For any repudiation or breach by the Foreign
Governing Authority of any obligation to furnish funds or other property or
services of value to or in respect of the Project if the action is taken by
the Foreign Governing Authority in its capacity or through its powers as a
purchaser, supplier of goods or services, creditor, shareholder, director
or manager of the Foreign Enterprise; or
3. AGREEMENTS. For any action validly and legally taken by the
Foreign Governing Authority in accordance with any agreement voluntarily
made by the Investor, the Foreign Enterprise, or any Co-venturer acting
within the scope of its authority with respect to the Project.
4. EXCLUDED COVERED PROPERTY. For loss of the following Covered
Property:
(a) precious metals, gems, works of art, money, documents,
securities or evidence of property ownership; or
(b) any oil xxxxx which a prudent operator would not continue to
drill, develop or operate for production purposes absent the
expropriation.
5. MINIMUM LOSS. If the amount of compensation otherwise payable
would be less than $50,000;
6. OFFSHORE ACCOUNT LICENSE. If, notwithstanding any other
provision of Section 4.02.1(a), the claim arises out or by reason of the
fact that the Foreign Governing Authority fails to approve or otherwise
provide for the extension of the Offshore Account License or the
replacement thereof with a license affording the Investor rights no less
favorable than the rights provided by the Offshore Account License.
ARTICLE V - EXPROPRIATION - AMOUNT OF COMPENSATION.
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5.01 TOTAL EXPROPRIATION. Subject to the adjustments (Section 5.04) and
limitations (Section 5.05), for total expropriation (Section 4.01), OPIC
shall pay compensation in U.S. dollars in the amount of the Insured Portion
of the Book Value of the Investment (as defined herein). Compensation is
determined as of the date the expropriatory effect began (Section 4.01.3)
and is based on financial statements maintained by the Investor in
accordance with Section 11.01.11.
Book Value of the Investment means (i) the book value of the Shares plus
(ii) the Book Value of the Loan (as defined herein).
The book value of the Shares shall be determined from the financial
statements of the Foreign Enterprise (Section 11.01.11), maintained
utilizing the full cost method of accounting. In determining the book
value of the Shares, OPIC may audit and make adjustments to the financial
statements of the Foreign Enterprise to make the adjustments described in
Section 5.04.
The Book Value of the Loan means the lesser of
(a) the aggregate unpaid balance of the amount thereof actually
received by the Foreign Enterprise in accordance with the Project
Agreement, as evidenced by CAPG - KKM Loan Agreement, or other
documentation satisfactory to OPIC in the reasonable exercise of
its discretion, together with unpaid interest accrued thereon
(the "Liability"), reduced by the amount of any provision for
uncollectibility of the Liability on the books of the Investor,
and
(b) the amount of the Liability that would be recoverable by the
Investor as a liability of the Foreign Enterprise, in accordance
with the priority of the Liability among the creditors of the
Foreign Enterprise, if the assets of the Foreign Enterprise were
liquidated at book value, determined in accordance with U.S.
generally accepted accounting principles, immediately prior to
the date the expropriatory effect commences (Section 4.01), the
loss due to political violence (Section 6.01), or the
interference with operations (Section 8.01),
5.02 EXPROPRIATION OF FUNDS. Subject to the adjustments (Section 5.04)
and limitations (Section 5.05), for expropriation of funds (Section
4.02.1), OPIC shall pay compensation in the amount of the U.S. dollar
equivalent of the Insured Portion of the expropriated funds at the exchange
rate determined by Section 3.01.2, computed as of the date the
expropriation began.
5.03 EXPROPRIATION OF COVERED PROPERTY. Subject to the adjustments
(Section 5.04) and limitations (Section 5.05);
1. For the expropriation of Covered Property, other than produced
Petroleum, OPIC shall pay compensation in the amount of the lesser of
(a) the Insured Portion of the Book Value of the Investment, as
determined as of the date the expropriation began; and
(b) the Insured Portion of the Historical Cost (as defined
herein) of the Covered Property, determined as of the date
the expropriation began.
Historical Cost means the Investor's Share (as defined below) of
the least of
(i) the original cost;
(ii) fair market value; and
(iii) the reasonable cost to repair the Covered Property,
less anything of value received by the Investor on account of the
Covered Property lost, (excluding compensation payable under
other insurance policies except to the extent necessary to
prevent the Investor from recovering more than the amount of the
loss recognized under any of the policies under which
compensation is due, without regard to policy limits), and less
the Investor's Share (as defined below) of any such receipts by
the Foreign Enterprise.
Investor's Share means the percentage equal to the proportion of the
Book Value of the Investment to the total equity and debt of the
Foreign Enterprise.
2. For expropriation of produced Petroleum, OPIC shall pay
compensation in the amount of the U.S. dollar equivalent (Section 3.01.2 or
Section 5.05.5) of the value of such produced Petroleum, determined in
accordance with the terms of the Project Agreement governing the sale of
such produced Petroleum.
5.04 ADJUSTMENTS.
1. INVESTMENTS OF PROPERTY. Non-cash items contributed as part of
the Investment shall be adjusted to the original cost of the items
furnished (not to exceed fair market value in the United States at the time
of transfer to the Foreign Enterprise and adjusted, if necessary, to
reflect abnormal deterioration), plus freight and other reasonable direct
costs incurred in delivering the items to the Project.
2. NON-INSURED CONTRIBUTION. Any direct or indirect additional
amount contributed to the Foreign Enterprise by the Investor in excess of
the Investment shall reduce compensation payable by OPIC in the proportion
that such additional amount bears to the aggregate of the Investment and
any such additional amount.
3. SPECIAL ACCOUNTING RULES. Dealings among related parties shall be
adjusted to the standard of arm's length dealing, and forgiveness of
obligations shall be disregarded. Each entity shall be accounted for as if
it were a separate person for income tax purposes, and the effect of tax
shifting arrangements shall be disregarded. Obsolescence or permanent
reduction in recoverable values of assets shall be recognized by adjusting
the book value thereof to realizable value. OPIC may adjust financial
statements to reflect the effect of events of loss that occur before the
expropriation effect began, if such events of loss are later confirmed.
4. OTHER COMPENSATION, RETAINED PROPERTY, AND UNPAID OBLIGATIONS.
OPIC may reduce compensation for
(a) compensation or payments received from other sources on account
of the expropriation (excluding compensation payable under other
insurance policies, except to the extent necessary to prevent the
Investor from recovering more than the amount of the loss recognized
under any of the policies under which compensation is due, without
regard to policy limits);
(b) in the case of total expropriation (Section 5.01), the book value
of commercially valuable property which remains subject to the
Investor's effective disposition and control after the expropriation
begins (unless OPIC requires the Investor to assign the property
(Section 10.02)); and
(c) any obligation of which the Investor is relieved as a consequence
of the expropriation.
The reduction shall be proportionate to the extent that these items
are attributable to the Insured Portion of the Investment.
5. UNDERINSURANCE. If the Investor has elected a Covered Amount
that is less than $50,000,000, and
(a) if the lesser of (i) the Insured Portion of the Book Value of the
Investment and (ii) the Investor's Share (as defined in Section
5.03.1(b)) of the Expected Monetary Value of the Reserves (as
defined in Section 5.05.6) is an amount greater than $50,000,000,
then the amount of OPIC's compensation under Article V shall be
reduced to an amount calculated by multiplying the amount of
compensation otherwise due by a percentage equal to the quotient
of the Covered Amount elected by the Investor divided by
$50,000,000; or
(b) if lesser of (i) the Insured Portion of the Book Value of the
Investment and (ii) the Investor's Share of the Expected Monetary
Value of the Reserves is an amount that is less than $50,000,000,
then the amount of OPIC's compensation under Article V shall be
reduced to an amount calculated by multiplying the amount of
compensation otherwise due by a percentage equal to the quotient
of the Covered Amount elected by the Investor divided by the
lesser of (a) the Investor's Share of the Expected Monetary Value
of the Reserves and (b) Insured Portion of the Book Value of the
Investment, determined as of the time the expropriatory act or
acts (Section 4.01) began.
5.05 LIMITATIONS.
1. COVERED AMOUNT. Compensation shall not exceed the Covered Amount
(Section 10.06) on the date the expropriatory effect began;
2. INSOLVENCY. If the liabilities of the Foreign Enterprise exceed
its assets immediately prior to the date the expropriatory effect
commences, compensation shall not exceed the amount that the Investor would
have been entitled to receive in insolvency proceedings if the assets of
the Foreign Enterprise had been liquidated at book value on that date;
3. SELF-INSURANCE. Compensation shall not exceed the maximum amount
which could be received by the Investor from OPIC without breaching Section
11.01.3;
4. LOCAL CURRENCY PAYMENTS. In the event of a claim under Section
4.02.2, if Local Currency is tendered by the Foreign Governing Authority as
compensation for requisitioned produced Petroleum, compensation shall not
exceed the purchase price of the requisitioned produced Petroleum,
determined in accordance with the Project Agreement governing the sale of
such produced Petroleum and the U.S. dollar amount at which the amount of
the Local Currency is valued, the latter to be determined by converting
such Local Currency at the exchange rate (Section 3.01.2) in effect on the
date such Local Currency is tendered.
5. FOREIGN CURRENCY PAYMENTS. In the event of a claim under Section
4.02.2, if a currency other than Local Currency or U.S. dollars ("Foreign
Currency") is tendered by the Foreign Governing Authority as compensation
for requisitioned produced Petroleum, compensation shall not exceed the
U.S. dollar equivalent of the purchase price in Foreign Currency of the
requisitioned produced Petroleum determined in accordance with the Project
Agreement governing the sale of such produced Petroleum, the U.S. dollar
equivalent to be determined by converting such Foreign Currency at the
exchange rate determined by notionally converting the amount of such
Foreign Currency into U.S. dollars at the rate quoted by the Reuters WRLD
Screen for buying U.S. dollars with such Foreign Currency at 12 noon New
York time on the date such Foreign Currency is tendered. If the exchange
rate cannot be established from the source described above, the exchange
rate shall be the rate determined to be equitable for such transactions by
a third party acceptable to OPIC and the Investor.
6. MAXIMUM COMPENSATION. Aggregate compensation under this Contract
shall not exceed an amount equal to the lesser of (a) the Insured Portion
of the Book Value of the Investment and (b) the Investor's Share of the
Expected Monetary Value of the Reserves (as defined herein).
Expected Monetary Value of the Reserves means, on any date, the value of
the Petroleum reserves of the Project, which shall be calculated in U.S.
dollars, based upon the after-tax cash flow forecasts for each category of
reserves of Petroleum, including Proved, Probable and Possible Reserves (as
defined below), respectively, by utilizing the relevant prevailing
published oil and gas prices, without adjustment for future inflation and
discounted at rates equal to the yield to maturity of United States
Treasury securities for the term comparable to the estimated life of each
of the respective reserves. The cash flow forecasts shall be adjusted for
the probability of producing such reserves and account for all costs borne
by the Investor or the Foreign Enterprise, including but not limited to
storage, processing, freight, or insurance. The cash flow forecasts shall
be further adjusted for each of the respective categories of reserves of
Petroleum by applying the following probability factors:
CATEGORY PERCENT OF CASH FLOW FORECAST
Proved Reserves 90%
Probable Reserves 50%
Possible Reserves 10%
If OPIC determines it to be necessary, the Expected Monetary Value of the
Reserves shall be determined by a qualified, certified independent
petroleum engineer acceptable to OPIC in its sole discretion. The expense
of such determination shall be borne equally by the Insured and OPIC.
Proved Reserves, Probable Reserves, and Possible Reserves shall have the
meanings and definitions as published by the Society of Petroleum
Engineers.
ARTICLE VI - POLITICAL VIOLENCE - SCOPE OF COVERAGE.
----------------------------------------------------
6.01 LOSS DUE TO POLITICAL VIOLENCE. Subject to the exclusions (Section
6.02), adjustments (Section 7.02), and limitations (Section 7.03),
compensation is payable if political violence is the direct and immediate
cause of the permanent loss (including loss of value by damage or
destruction) of Covered Property. Political Violence means a violent act
undertaken with the primary intent of achieving a political objective, such
as declared or undeclared war, hostile action by national or international
armed forces, civil war, revolution, insurrection, civil strife, terrorism
or sabotage. However, acts undertaken primarily to achieve labor or
student objectives are not covered.
6.02 EXCLUSIONS. Regardless of any other provision of this Contract, no
compensation shall be payable for political violence if
1. EXCLUDED COVERED PROPERTY. The loss is of the following Covered
Property:
(a) precious metals, gems, works of art, money, documents,
securities or evidence of property ownership; or
(b) any oil xxxxx which a prudent operator would not continue to
drill, develop or operate for production purposes absent the
political violence.
2. MINIMUM LOSS. The amount of compensation payable would be less
than $50,000;
3. REASONABLE PROTECTIVE MEASURES. The loss results from the
failure of the Investor, or the Foreign Enterprise, or any Co-venturer to
take reasonable measures to protect or preserve the property; or
4. PROVOCATION. The preponderant cause of the loss is the
unreasonable actions attributable to the Investor, the Foreign Enterprise,
or any Co-venturer, including corrupt practices.
ARTICLE VII - POLITICAL VIOLENCE - AMOUNT OF COMPENSATION.
----------------------------------------------------------
7.01 BASIS OF COMPENSATION. Subject to the adjustments (Section 7.02)
and limitations (Section 7.03), if the requirements of Article VI are
satisfied, OPIC shall pay compensation in U.S. dollars for any item of
Covered Property lost.
1. For the loss of Covered Property, other than produced Petroleum,
OPIC shall pay compensation in the amount of
(a) Historical Cost, or
(b) If the Investor elects to repair or replace the Covered
Property within three years of the loss, the reasonable cost
to repair any item of Covered Property lost or to replace it
with equivalent new property ("Replacement Cost"), less
anything of value received by the Investor or the Foreign
Enterprise on account of the Covered Property lost,
(excluding compensation payable under other insurance
policies except to the extent necessary to prevent the
Investor from recovering more than the amount of the loss
recognized under any of the policies under which
compensation is due, without regard to policy limits). Such
compensation shall not exceed 200% of the item's original
cost. This section Section 7.02 does not apply to oil or
gas xxxxx which have been plugged and abandoned.
2. For the loss of produced Petroleum, OPIC shall pay compensation in
the amount of the U.S. dollar equivalent, determined in accordance with the
terms of the Project Agreement governing the sale of such produced
Petroleum.
7.02 ADJUSTMENTS.
1. INVESTMENTS OF PROPERTY. Non-cash items contributed as part of
the Investment shall be adjusted to the original cost of the items
furnished (not to exceed fair market value in the United States at the time
of transfer to the Foreign Enterprise and adjusted if necessary to reflect
abnormal deterioration), plus freight and other reasonable direct costs
incurred in delivering the items to the Project.
2. NON-INSURED CONTRIBUTION. Any direct or indirect additional
amount contributed to the Foreign Enterprise by the Investor in excess of
the Investment will reduce compensation payable by OPIC in the proportion
that such additional amount bears to the aggregate of the Investment and
any such additional amount.
3. SPECIAL ACCOUNTING RULES. Dealings among related parties shall
be adjusted to the standard of arm's length dealing, and forgiveness of
obligations shall be disregarded. Each entity shall be accounted for as if
it were a separate person for income tax purposes, and the effect of tax
shifting arrangements shall be disregarded. Obsolescence or permanent
reduction in recoverable values of assets shall be recognized by adjusting
the book value thereof to realizable value. OPIC may adjust financial
statements to reflect the effect of events that occur before the property
is lost, if such events of loss are later confirmed.
4. UNDERINSURANCE. If the Investor has elected a Covered Amount
that is less than $50,000,000, and
(a) if the lesser of (i) the Insured Portion of the Book Value
of the Investment and (ii) the Investor's Share of the
Expected Monetary Value of the Reserves is an amount greater
than $50,000,000, then the amount of OPIC's compensation
under Article VII shall be reduced to an amount calculated
by multiplying the amount of compensation otherwise due by a
percentage equal to the quotient of the Covered Amount
elected by the Investor divided by $50,000,000; or
(b) if the lesser of (i) the Insured Portion of the Book Value
of the Investment and (ii) the Investor's Share of the
Expected Monetary Value of the Reserves is an amount that is
less than $50,000,000, then the amount of OPIC's
compensation under Article VII shall be reduced to an amount
calculated by multiplying the amount of compensation
otherwise due by a percentage equal to the quotient of the
Covered Amount elected by the Investor divided by the lesser
of (a) the Investor's Share of the Expected Monetary Value
of the Reserves and (b) the Insured Portion of the Book
Value of the Investment, determined immediately before the
loss caused by political violence.
7.03 LIMITATIONS. Regardless of any other provision of this Contract,
the following limitations shall apply in computing compensation for
political violence:
1. COVERED AMOUNT. Compensation shall not exceed the Covered Amount
on the date of the loss.
2. INSOLVENCY. If the liabilities of the Foreign Enterprise exceed
its assets as of the date of the loss, compensation shall not exceed the
amount that the Investor would have been entitled to receive in insolvency
proceedings if the assets of the Foreign Enterprise had been liquidated at
book value on that date.
3. SELF-INSURANCE. Violation of the duty to be self-insured
(Section 11.01.3) shall result in a corresponding reduction of compensation
otherwise payable under this Contract.
4. AGGREGATE HISTORICAL COST COMPENSATION. Aggregate compensation
for Covered Property to be compensated at Historical Cost shall not exceed
the lesser of:
(a) the Insured Portion of the Book Value of the Investment, and
(b) the Investor's Share of the Expected Monetary Value of the
Reserves
at the time of loss.
5. REPLACEMENT COST LIMIT. Compensation for any item to be
compensated at Replacement Cost shall not exceed 200% of the Investor's
Share of the amount calculated under Section 7.01.1(b).
6. MAXIMUM COMPENSATION. Aggregate compensation under this Contract
for Covered Property to be compensated at Historical Cost shall not exceed
an amount equal to the lesser of (a) the Insured Portion of the Book Value
of the Investment and (b) the Investor's Share of the Expected Monetary
Value of the Reserves.
7.04 APPRAISAL. If OPIC determines that compensation is payable, but
OPIC and the Investor are unable to agree on a question of valuation,
either may demand the appointment of an impartial appraiser. If the
parties are unable to agree on the appraiser, the appointment shall be made
by the American Arbitration Association. The appraiser's itemized
appraisal shall be binding. Appraisal costs shall be borne equally by OPIC
and the Investor.
7.05 ESTIMATED COMPENSATION. If OPIC determines that compensation is
payable, but conditions in the Project Country preclude reasonable efforts
by OPIC to determine the precise amount due, OPIC may pay estimated
compensation based on the information then available. Upon determination
of the precise amount due, OPIC shall recover any excess amount paid or pay
any additional amount due.
ARTICLE VIII - INTERFERENCE WITH OPERATIONS - SCOPE OF COVERAGE.
----------------------------------------------------------------
8.01. INTERFERENCE WITH OPERATIONS. Subject to the adjustments (Section
9.02) and limitations (Section 9.03), OPIC shall pay compensation for
interference with operations if operation of the Project in accordance with
the terms of the Project Agreement is prevented for a period of six
consecutive months as a direct result of conditions created by political
violence (Section 6.01) in the Project Country which make it impossible or
unreasonably hazardous to carry on the operation of the Project. In
determining what conditions would make it impossible or unreasonably
hazardous to carry on the operation of the Project, OPIC will consider
whether it would be reasonable under the circumstances for the Foreign
Enterprise to continue the operation of the Project.
8.02. RESUMPTION OF PROJECT OPERATIONS. If, within 5 years from the date
on which the application for compensation based upon interference with
operations is submitted to OPIC, the operation of the Project under the
Project Agreement is, or could reasonably be, resumed by the Investor or
the Foreign Enterprise, the Investor may require that the claim settlement
be rescinded by reassignment to the Investor of all interests and claims
previously assigned by the Investor to OPIC (Section 10.02) and the
Investor shall pay to OPIC an amount equal to all of the compensation paid
by OPIC to the Investor for claim(s) under this Article VIII plus OPIC's
reasonable expenses incurred to maintain the Project (in the aggregate, the
"Claim Rescission Amount"). OPIC may, at any time, by notice to the
Investor, require the Investor to elect either to rescind the claim
settlement or to irrevocably waive the right to rescind the claim
settlement. If the Investor does not elect to rescind the claim settlement
within 90 days of receipt of OPIC's notice requesting that the claim
settlement be rescinded or fails to pay OPIC the Claim Rescission Amount
promptly following the exercise of the election to rescind the claim
settlement, then OPIC shall be free to sell the Project to any other party
and shall have no further obligation to the Investor and the Investor shall
have no further rights under this Section 8.02. If this Contract is in
effect at the time of such rescission, OPIC shall restore to the Maximum
Aggregate Compensation Amount, and Covered Amount all amounts subtracted
therefrom in connection with the interference with operations compensation
payment.
ARTICLE IX - INTERFERENCE WITH OPERATIONS - AMOUNT OF COMPENSATION.
-------------------------------------------------------------------
9.01 BASIS OF COMPENSATION. Subject to the adjustments (Section 9.02)
and limitations (Section 9.03), if the requirements of Article VIII are
satisfied, OPIC shall pay compensation as follows:
1. If the claim is based only on interference with operations, OPIC
shall pay compensation in U.S. dollars in the amount of the lesser of the
Insured Portion of the Book Value of the Investment and the Investor's
Share of the Expected Monetary Value;
2. If the event on which the claim is based also gives rise to a
valid political violence claim, OPIC shall pay compensation in the amount
described in Section 9.01.1, less the amount of compensation paid by OPIC
for the political violence loss.
Compensation shall be computed as of the date upon which the
interference with operations commences (Section 8.01) and based on
financial statements maintained by the Investor in accordance with Section
11.01.11. OPIC may, however, audit and make adjustments to the financial
statements (i) to conform them to principles of accounting generally
accepted in the United States; and (ii) to make the adjustments (Section
9.02).
9.02 ADJUSTMENTS.
1. INVESTMENTS OF PROPERTY. Non-cash items contributed as part of
the Investment shall be adjusted to the original cost of the items
furnished (not to exceed fair market value in the United States at the time
of transfer to the Foreign Enterprise and adjusted if necessary to reflect
abnormal deterioration), plus freight and other reasonable direct costs
incurred in delivering the items to the Project.
2. NON-INSURED CONTRIBUTION. Any direct or indirect additional
amount contributed to the Foreign Enterprise by the Investor in excess of
the Investment shall reduce compensation payable by OPIC in the proportion
that such additional amount bears to the aggregate of the Investment and
any such additional amount.
3. SPECIAL ACCOUNTING RULES. Dealings among related parties shall
be adjusted to the standard of arm's length dealing, and forgiveness of
obligations shall be disregarded. Each entity shall be accounted for as if
it were a separate person for income tax purposes, and the effect of tax
shifting arrangements shall be disregarded. Obsolescence or permanent
reduction in recoverable values of assets shall be recognized by adjusting
the book value to realizable value. OPIC may adjust financial statements
to reflect the effect of events of loss that occur before the interference
with operations begins, if such events of loss are later confirmed.
4. OTHER COMPENSATION, RETAINED PROPERTY AND UNPAID OBLIGATIONS.
OPIC may reduce compensation for
(a) compensation received from other sources on account of the
interference with operations (excluding compensation payable
under other insurance policies, except to the extent
necessary to prevent the Investor from recovering more than
the amount of the loss recognized under any of the policies
under which compensation is due, without regard to policy
limits);
(b) the book value of commercially valuable property which
remains subject to the Investor's effective disposition and
control after the interference with operations commences
(unless OPIC requires the Investor to assign the property
(Section 10.02)); and
(c) any obligation of which the Investor or the Foreign
Enterprise (to the extent of the Investor's Share of such
obligation) is relieved by virtue of the interference with
operations. The reduction shall be proportionate to the
extent that these items are attributable to the Insured
Portion of the Investment.
5. UNDERINSURANCE. If the Investor has elected a Covered Amount
that is less than $50,000,000, and
(a) if the lesser of (i) the Insured Portion of the Book Value
of the Investment and (ii) the Investor's Share of the
Expected Monetary Value of the Reserves is an amount greater
than $50,000,000, then the amount of OPIC's compensation
under Article IX shall be reduced to an amount calculated by
multiplying the amount of compensation otherwise due by a
percentage equal to the quotient of the Covered Amount
elected by the Investor divided by $50,000,000; or
(b) if the lesser of (i) the Insured Portion of the Book Value
of the Investment and (ii) the Investor's Share of the
Expected Monetary Value of the Reserves is an amount that is
less than $50,000,000, then the amount of OPIC's
compensation under Article IX shall be reduced to an amount
calculated by multiplying the amount of compensation
otherwise due by a percentage equal to the quotient of the
Covered Amount elected by the Investor divided by the lesser
of (a) the Investor's Share of the Expected Monetary Value
of the Reserves and (b) the Insured Portion of the Book
Value of the Investment, determined as of the date upon
which the interference with operations commences (Section
8.01).
9.03 LIMITATIONS.
1. COVERED AMOUNT. Compensation shall not exceed the Covered Amount
on the date the interference with operations began;
2. INSOLVENCY. If the liabilities of the Foreign Enterprise exceed
its assets as of the date the interference with operations began,
compensation shall not exceed the amount that the Investor would have been
entitled to receive in insolvency proceedings if the assets of the Foreign
Enterprise had been liquidated at book value on that date;
3. SELF-INSURANCE. Compensation shall not exceed the maximum amount
which could be received by the Investor from OPIC without breaching Section
11.01.3; or
4. MAXIMUM COMPENSATION. Aggregate compensation under this Contract
shall not exceed an amount equal to the lesser of (a) the Insured Portion
of the Book Value of the Investment and (b) the Investor's Share of the
Expected Monetary Value of the Reserves.
ARTICLE X - PROCEDURES.
-----------------------
10.01 APPLICATION FOR COMPENSATION. An application for compensation shall
demonstrate the Investor's right to compensation in the amount claimed.
The Investor shall provide such additional information as OPIC may
reasonably require to evaluate the application. The Investor may withdraw
an application for compensation, but the right to recover compensation will
be lost for any acts covered by that application.
(a) There is no time limit on application for inconvertibility
compensation (Article III); however, Section 3.03.1 provides that
compensation shall not exceed the Covered Amount in effect 120 days
before OPIC receives the application.
(b) An application for expropriation compensation (Article V) must be
filed within six months after the Investor has reason to believe that
all requirements of Article IV have been satisfied.
(c) A notice demonstrating the Investor's entitlement to political
violence compensation (Article VII) must be filed within six months of
the loss. The notice, together with proof of the amount of
compensation due, will be considered a completed application, which
must be filed within three years of the loss. The Investor may
request Historical Cost compensation and later amend the application
within three years of the loss to elect Replacement Cost compensation.
(d) An application for compensation for interference with operations
(Article IX) must be filed within six months after the Investor has
reason to believe that all requirements of Article VIII have been
satisfied.
(e) OPIC shall have a reasonable time within which to complete
processing of any application for compensation. In the event the
Investor files an application that is not complete, OPIC will use its
best efforts to inform the Investor as soon as possible (i) that the
application is incomplete and (ii) what action must be taken to
complete the application.
10.02 ASSIGNMENT TO OPIC. Within sixty days after OPIC notifies the
Investor of the amount of compensation which OPIC will pay under
expropriation, political violence or interference with operations coverage,
and, concurrently with such payment, the Investor shall transfer to OPIC:
1. With respect to a claim under Section 4.01 or Section 8.01, all
interests attributable to the Insured Portion of the Investment,
2. With respect to a claim under Section 4.02.1, all interests
attributable to the expropriated funds,
3. With respect to a claim under Section 4.02.2, all interests
attributable to the Insured Portion of the Covered Property,
4. With respect to a claim under Section 6.01, all claims arising
out of the loss due to political violence.
In the event of a transfer under Section 10.02.1, Section 10.02.2, or
Section 10.02.3, the interests to be transferred shall be determined as of
the date the related compensable event commenced and shall include, in the
case of an expropriation, claims arising out of the expropriation.
If OPIC, in connection with an assignment under section 10.02.1,
requires the Investor to transfer to OPIC a beneficial interest in the Loan
and related rights, in exchange for reimbursement of reasonable out-of-
pocket expenses, OPIC may require the Investor to take any action with
regard to such Loan and related rights as OPIC may reasonably direct,
provided that such action is unlikely to result in a substantial detriment
to the Investor's interests. In such event the Investor shall not consent
to any rescheduling of the Loan without OPIC's consent.
The Investor shall transfer the interests and claims free and clear
of, and shall indemnify OPIC against, all claims, defenses, counterclaims,
rights of setoff, and other encumbrances (except defenses relating to the
expropriation, political violence, and or interference with operations).
In connection with an inconvertibility claim, immediately upon receipt
of instructions from OPIC, the Investor shall deliver the Local Currency to
OPIC (in cash or, at OPIC's option, by draft subject to collection) or the
Investor's rights to receive or obtain U.S. dollars (Section 2.01).
OPIC may decline all or any portion of the Investor's interests or
claims. If OPIC so declines, the Investor's right to compensation shall be
affected only as provided in Section 5.04.4(b).
10.03 SECURITY. As a condition for the payment of compensation, OPIC may
require the Investor to provide reasonable security, satisfactory to OPIC,
for repaying compensation (as may be required, for example, by Section
7.05), except with respect to compensation payable under Article VIII.
10.04 EXCESS SALVAGE VALUE. With respect to compensated expropriation and
political violence claims, OPIC shall pay to the Investor any amounts OPIC
realizes in U.S. dollars from the rights transferred (Section 10.02) in
excess of
(a) the compensation paid by OPIC; plus
(b) reasonable interest; plus
(c) OPIC's out-of-pocket expenses incurred in maintaining and
realizing funds from the transferred property.
However, this provision shall not in any way restrict OPIC's discretion to
deal with the rights transferred. OPIC shall have no obligation to take
action with respect to the rights transferred and shall incur no liability
to the Investor for any actions taken or not taken after the transfer.
10.05 ARBITRATION. Any controversy relating to this Contract shall be
settled by arbitration in Washington, D.C. according to the then prevailing
Commercial Arbitration Rules of the American Arbitration Association.
Unless the Investor initiates arbitration, OPIC's liability shall expire
one year after OPIC notifies the Investor of its determination concerning
an application for compensation. A decision by arbitrators shall be final
and binding, and any court having jurisdiction may enter judgment on it.
10.06 ELECTION OF COVERED AMOUNT AND TERMINATION OF COVERAGE. By prior
notice to OPIC, effective as of the Premium Due Date (Section 1.06), the
Investor may increase or decrease the Covered Amount or decrease the
Maximum Aggregate Compensation Amount for the remainder of the Contract
term, subject to the following limitations:
1. The Covered Amount shall be the least of:
(i) the Insured Portion of the Book Value of the Investment,
(ii) the Maximum Aggregate Compensation Amount, and
(iii) the Investor's Share of the Expected Monetary Value of the
Reserves;
PROVIDED, however, that if the Investor wishes to elect a Covered
Amount that is lower than the least of (a) the Insured Portion of the
Book Value of the Investment, the Maximum Aggregate Compensation
Amount and (b) the Investor's Share of the Expected Monetary Value of
the Reserves, then the Maximum Aggregate Compensation Amount shall be
automatically reduced to such Covered Amount elected by the Investor
and the Investor may not subsequently elect a higher Maximum Aggregate
Compensation Amount or Covered Amount without OPIC's prior written
consent.
2. The Covered Amount shall not exceed the Maximum Aggregate
Compensation Amount or the Investor's Share of the Expected Monetary Value
of the Reserves, whichever is less.
3. The Maximum Aggregate Compensation Amount shall be reduced
automatically by compensation paid by OPIC; the Covered Amount shall also
be reduced by such compensation for the remainder of the election period.
10.07 TERMINATION. The Investor may terminate this Contract by notice to
OPIC effective as of any Premium Due Date unless the premium for the
Contract period commencing on such date has already been paid, in which
case the Contract will terminate on the next succeeding Premium Due Date.
However, if the Investor terminates this Contract within three years from
the Operative Date, the Investor shall pay to OPIC a termination fee equal
to $2,500,000 minus the sum of all premiums paid up to the date of
termination, except, if the Investor terminates this Contract prior to
January 30, 2000, the termination fee shall be not apply. Termination shall
not affect any rights or obligations of either party relating to prior
periods.
10.08 REFUND OF PREMIUMS. Upon timely request, OPIC will refund premiums
PRO RATA if
(a) excess coverage is maintained while a valid claim for
compensation is pending; or
(b) the Investor becomes ineligible for coverage or ceases to hold
all or a portion of the Investment.
10.09 LEGAL AND MISCELLANEOUS. This Contract shall be governed by the
laws of the District of Columbia, its conflict of laws rules excepted.
This Contract constitutes the complete agreement between the parties,
superseding any prior understandings. This Contract may be modified, or
its terms waived only in writing.
10.10 NOTICES. Notices must be in writing and shall be effective when
received. Notices shall be given to the Investor at the address on the
title page (unless changed in writing) with a copy to Shell Capital
Services Limited, Attn: The Controller, Shell Centre, London SE1 7NA,
provided, however, that the receipt of such copy shall not be a condition
to the effectiveness of notice, and to OPIC at
Overseas Private Investment Corporation
0000 Xxx Xxxx Xxxxxx, X.X.
Washington, D.C. 20527
ATTENTION Vice-President, Insurance
ARTICLE XI - INVESTOR'S DUTIES.
-------------------------------
11.01 DUTIES.
1. REPRESENTATIONS AND PROJECT EXECUTION.
(a) The Investor understands that OPIC has issued this Contract
based on statutory duties and policy goals (22 U.S.C.
Section 2191), as well as underwriting considerations. All
statements made by the Investor to OPIC in connection with
this Contract are true and complete, and the Investment in
the Foreign Enterprise and the Project shall be carried out
as described.
(b) The Investor represents and warrants that, as of the
Effective Date of this Contract, there are no outstanding or
incipient disputes among the Investor, the Foreign
Enterprise, or any Co-venturer and the Foreign Governing
Authority.
2. OWNERSHIP AND ELIGIBILITY. The Investor shall at all times
remain the beneficial owner of the Investment and shall remain eligible for
OPIC insurance as
(a) a citizen of the United States; or
(b) a corporation or other association created under the laws of
the United States, its states, or territories or the District of
Columbia, of which more than 50% of both the total interest and
of each class of shares is beneficially owned by citizens of the
United States; or
(c) a corporation created under foreign law which is 95% owned
by entities eligible under (a) or (b); or
(d) an entity created under foreign law which is wholly owned by
entities eligible under (a) or (b).
3. SELF-INSURANCE. The Investor shall continue to bear the risk of
loss of at least 10% of the Investment.
4. OTHER INSURANCE. The Investor has notified OPIC of any existing
arrangements for insurance from any other party covering the Investment
against the risks insured hereunder (`Other Insurance') and shall not
obtain additional Other Insurance without OPIC's prior written consent,
which consent shall not be withheld, provided OPIC obtains arrangements
satisfactory to it regarding sharing of salvage with such other insurer.
5. PRO RATA COMPENSATION. Should the Investor have Other Insurance
in effect at the time a claim arises hereunder, notwithstanding any
provision of this contract to the contrary, OPIC's obligation to pay
compensation in respect of any claim hereunder shall not exceed that
portion of the loss as recognized under any of the policies (without regard
to policy limits) that the active amount in effect for the coverage under
which compensation is sought from OPIC bears to the sum of such active
amount plus the equivalent compensation limit or limits in respect of the
coverage provided by such Other Insurance in respect of such risk.
6. CLAIMS COOPERATION AGREEMENT. The Investor consents to the
disclosure by OPIC to the providers of any Other Insurance with which OPIC
has entered into a claims cooperation agreement, and by the other parties
to any such agreement to OPIC, of any and all information that the Investor
has provided or may provide to any of them in connection with the
Investor's application for such insurance, the administration and
management thereof, the processing of any claim thereunder, or any salvage
efforts in connection therewith.
7. OTHER COMPENSATION. The Investor shall not enter into any
agreement with any Foreign Governing Authority with respect to compensation
for any acts that may fall within the scope of coverage (Articles II, IV,
VI or VIII) without OPIC's prior written consent.
8. CHANGES IN PROJECT AGREEMENT. The Investor shall not permit the
Foreign Enterprise to make any material changes in the Project Agreement or
to enter into any additional agreements with respect to the Project, which
changes or agreements may materially affect OPIC's rights or obligations
under this Contract ("Subsequent Amendments"), unless OPIC has given its
prior written consent. The Investor shall promptly notify OPIC in writing
of any proposed Subsequent Amendments. Subsequent Amendments shall
automatically invalidate or nullify the coverage provided by this Contract,
unless OPIC has notified the Investor in writing of its acceptance of such
proposed Subsequent Amendments within 60 days from the date OPIC receives
true and complete copies of the proposed Subsequent Amendments from the
Investor. OPIC reserves the right to modify the terms of coverage and
premium rates charged to provide coverage as a consequence of such proposed
Subsequent Amendments. If OPIC has accepted any Subsequent Amendments, the
Investor shall provide OPIC, within 90 days of execution, with executed
copies thereof.
9. ASSIGNMENT. The Investor shall not assign this Contract, or any
of its rights, without OPIC's written consent, which consent will not be
withheld unreasonably.
10. PREMIUMS. The Investor shall pay the premiums for this Contract
in accordance with Section 1.06. In the event that premiums are not paid
when due, the Investor shall be in default, but may cure this default
within sixty days by paying the premiums plus interest at a rate of 12% per
annum.
11. ACCOUNTING RECORDS.
(a) The Investor shall maintain in the United States the
accounting records necessary to compute and substantiate
compensation, including
(i) records documenting the Investment;
(ii) annual balance sheets of the Foreign Enterprise;
(iii) annual statements of income, retained earnings,
changes in financial position, and related
footnotes, of the Foreign Enterprise;
(b) Accounting records of the Foreign Enterprise shall be
maintained in U.S. dollars in accordance with principles of
accounting generally accepted in the United States (including
principles of currency translation), as modified by the special
accounting rules (Section 5.04.3, Section 7.02.3, and Section
9.02.2).
(c) The books of account and records of the Foreign Enterprise
shall be maintained using the full cost method of accounting.
(d) Except as provided in (c) above, and as otherwise provided
herein Section 5.04, Section 7.02, and Section 9.02, OPIC shall
be bound by the Investor's and the Foreign Enterprise's
application of generally accepted accounting principles, unless
such choice results in a substantial overstatement of the fair
market value of the Investment or the Foreign Enterprise as an
independent entity.
(e) The Investor shall retain all accounting records until
(i) the deadline for filing an application for
compensation has expired (Section 10.01); or
(ii) final action on an application for compensation has
been taken (including arbitration and judicial
appeals).
If compensation has been paid, however, the accounting records
shall be retained for six years after the Investor receives the
compensation.
12. REPORTS AND ACCESS TO INFORMATION. In order that OPIC may
perform its statutory duties, including settling claims and reporting to
the Congress (22 U.S.C. Section 2200a), the Investor shall furnish OPIC
with such information as OPIC may reasonably request, including
(a) making available for interviews any persons subject to the
Investor's practical control (including employees of the Investor
and the Foreign Enterprise and independent accountants);
(b) making available for inspection and copying all documents
and accounting records subject to the Investor's practical
control relating to the Project (including workpapers of
independent accountants);
(c) subject to the Investor's practical control, permitting OPIC
to inspect the Project; and
(d) furnishing available information concerning the effects of
the Project on the economy of the United States and the
environment and on the economic and social development of the
Project Country.
The Investor's duties under this paragraph shall continue for the
periods specified for retention of accounting records (Section
11.01.11(e)).
13. COMPULSORY NOTICES. The Investor shall notify OPIC promptly of
any act or threats to act in a manner which may cause the rescission of the
Offshore Account License or if it has reason to believe that CAPG or the
Foreign Enterprise would not be able to convert Local Currency or transfer
U.S. dollars to the United States to make a Covered Payment. The Investor
shall promptly notify OPIC of any acts or threats to act in a manner which
may come within the scope of the expropriation, political violence, or
interference with operations coverage (Articles II, IV, VI and VIII) and
shall keep OPIC informed as to all relevant developments relating thereto
of which it has knowledge.
14. PRESERVATION, TRANSFER AND CONTINUING COOPERATION. At OPIC's
request, the Investor shall promptly assign rights with respect to the
Investment, as required by Section 10.02. Prior to the assignment of
rights required by Section 10.02, the Investor shall use its best efforts
to ensure that KKM takes all reasonable measures to preserve property, to
pursue available administrative and judicial remedies, and to negotiate in
good faith with the Foreign Governing Authority and other potential sources
of compensation. After a transfer of rights or delivery of Local Currency,
in exchange for reimbursement of reasonable out-of-pocket expenses the
Investor shall take all actions reasonably requested by OPIC to assist OPIC
in preserving the property and rights transferred to OPIC and in
prosecuting related claims.
15. AGREEMENTS REGARDING INVESTMENT DISPUTES. If any rights
transferable to OPIC (Section 10.02) are subject to agreements providing
for arbitration in a forum limited to non-governmental parties (such as the
International Centre for Settlement of Investment Disputes), the Investor
shall act, and shall use its best efforts to cause the Foreign Enterprise
to act, as necessary to protect OPIC's interests in such manner as OPIC
reasonably directs.
16. LEGALITY. The Investor has implemented and shall implement the
Investment and the Project in compliance in all material respects with all
applicable and publicly available laws, decrees, regulations,
administrative determinations, and procedures of the Foreign Governing
Authority.
17. WORKER RIGHTS. The Investor shall not take actions to prevent
employees of the Foreign Enterprise from lawfully exercising their right of
association and their right to organize and bargain collectively. The
Investor shall, and shall cause the Foreign Enterprise, not to interfere
with or coerce an employee of the Foreign Enterprise on the basis of trade
union activities or membership. The Investor shall, and shall cause the
Foreign Enterprise, not to take any action on the basis of such activities
or membership which may result in the termination, suspension, demotion, or
transfer of said employee by the Foreign Enterprise, or by an officer,
agent or other representative thereof. The Investor shall cause the
Foreign Enterprise to perform all Project activities in accordance with
occupational health and safety standards that meet or exceed the World Bank
Environment, Health and Safety Guidelines for Onshore Oil and Gas
Development, dated May 12, 1994 ("World Bank Guidelines") (attached hereto
as Exhibit A). The Investor shall, and shall cause the Foreign Enterprise,
to allow employees of the Foreign Enterprise to avoid or remove themselves
from dangerous work situations without jeopardy to continued employment.
The Investor shall, and shall cause the Foreign Enterprise, to observe
applicable laws relating to a minimum age for employment of children,
acceptable conditions of work with respect to minimum wages, hours of work,
and occupational health and safety, and not to use forced labor. Neither
the Investor nor the Foreign Enterprise is responsible under this paragraph
for the actions of a foreign government.
18. ENVIRONMENTAL COMPLIANCE. The Investor represents and warrants
that the Project shall be constructed and operated in compliance, in all
material respects, with the more stringent of the regulations of the
Foreign Governing Authority and the World Bank Guidelines. In addition,
the Investor shall:
(a) Deliver to OPIC, within 45 days following the end of the
annual fiscal period of the Foreign Enterprise, reports
summarizing the environmental performance of the Project over the
preceding year. Such reports shall provide OPIC with sufficient
information to monitor the performance of the Project with
respect to environmental protection and shall include summaries
of
(i) the results of environmental monitoring or sampling
activity,
(ii) accidents impacting the environment or resulting in
the loss of life, and
(iii) environmental deficiencies identified by the local
environmental regulatory authorities and any
remedial actions taken.
(b) Comply and cause all contractors and other authorized
persons occupying the Project to comply with and implement, in
all material respects, the wellfield practices and mitigation
measures specified in the "Environmental Impact Assessment",
dated October 30, 1995.
(c) Submit to OPIC any material environmental reports or
documents concerning the Project that are prepared under the
Investor's direction. The environmental reports submitted to
OPIC under this requirement shall include, but shall not be
limited to
(i) results of any environmental audits,
(ii) a final version of the Environmental Impact
Assessment,
(iii) a final version of the emergency response/spill
contingency plans, and
(iv) any supplemental environmental studies completed in
order to satisfy the regulatory requirements of the
Foreign Governing Authority.
11.02 DEFAULT. Material breach or misrepresentation by the Investor shall
constitute a default hereunder, and OPIC may
(a) refuse to make payments to the Investor;
(b) recover payments made; and
(c) terminate this Contract, effective as of the date of the
breach, by giving notice to the Investor.
11.03 NON-WAIVER. Neither OPIC's failure to invoke its rights nor its
acceptance of premiums shall constitute waiver of any of its rights, even
though OPIC knows of the Investor's breach.
11.04 CURE. OPIC may permit the Investor to cure a default in a manner
satisfactory to OPIC, but shall have no obligation to allow defaults to be
cured.
ARTICLE XII - MISCELLANEOUS
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12.01 The issuance by OPIC of this Contract shall not constitute an
acknowledgment or assurance by OPIC of the validity of any agreement or
arrangement constituting or relating to the Investment under the laws of
the Project Country.
12.02 The Investor at all times shall be solely responsible for ensuring
that it can freely transfer rights as required by Section 10.02,
"ASSIGNMENT TO OPIC". If, in the event of claim under expropriation
(Section 4.01) or interference with operations coverage (Section 8.01), the
Investor is unable to effect the required transfer, no payment shall be
made under the Contract.
12.03 Notwithstanding any other provision of this Contract, OPIC shall
have no liability for any claim arising out or by reason of the fact that
the license, dated June 28, 1995, issued by the Ministry of Geology and
Protection of the Subsurface for KKM, entitled "License for the Right to
Use the Subsurface No. MG 249 Oil", makes reference only to that certain
agreement, dated July 1, 1993, between the Ministry of Energy and
Subsurface Resources and KKM, and not to the Project Agreement.
12.04 Notwithstanding any other provision of this Contract, OPIC shall
have no liability for any claim arising out or by reason of the fact that
the Investor, the Foreign Enterprise or the Foreign Governing Authority is
unable to export petroleum produced by the Project via pipelines or any
other transportation or marketing facilities outside of the Project
Country.
12.05 Notwithstanding any other provision of this Contract, OPIC shall
have no liability for any claim under Article II if the Investor or the
Foreign Enterprise has not obtained and complied with all approvals and
licenses necessary under the laws of the Project Country to make effective
the provisions of Sections 4.1.16, 4.1.17, and 4.1.20 of the Project
Agreement.
12.06 The Investor (i) represents and warrants that each of the Foreign
Enterprise and the Intermediate Subsidiaries has been established for the
sole purpose of undertaking the Project and (ii) covenants that each of
their operations shall remain so limited as long as this Contract is in
effect.
12.07 All references in Articles II through X of this Contract to
"Investor" (except those in this Section 12.06) shall be interpreted to
mean and include the Intermediate Subsidiaries as follows:
(i) All representations of the Investor shall be deemed to be made
on its own behalf and on behalf of the Intermediate
Subsidiaries, and any knowledge of the Intermediate
Subsidiaries shall be deemed to be knowledge of the Investor;
(ii) Any requirement that, as a condition to coverage or payment of
compensation, the Investor take an action, shall be deemed to
be a requirement that the Investor take such action or cause
the Intermediate Subsidiaries to take such action;
(iii) Any requirement that, as a condition to coverage or payment of
compensation, the Investor not take, or be unable to take, an
action, or be deprived of a right, shall be deemed to be a
requirement that neither the Investor nor the Intermediate
Subsidiaries shall have taken or be able to take such action
or retain such right;
(iv) Any adjustments to compensation for amounts received by the
Investor shall be determined based on the aggregate amounts
received by the Investor and the Intermediate Subsidiaries;
(v) The Investor must perform all duties, obligations and
procedures required of the Investor under this Contract
(including without limitation those set forth in Articles X
and XI) and must cause the Intermediate Subsidiaries to do so;
PROVIDED, however, that the Intermediate Subsidiaries shall
not have any payment obligation with respect to this Contract;
(vi) All rights of the Investor under this Contract (including
without limitation all rights to make coverage elections, to
receive notices, to make claims, and to receive payments) are
rights of the Investor alone, and the Intermediate
Subsidiaries shall not have or may not exercise any such
right; and
(vii) All references to rights of the Investor with respect to the
Foreign Enterprise or other parties shall be deemed to be
references to rights of the Investor or the Intermediate
Subsidiaries with respect to the Foreign Enterprise or such
other parties.
CHAPARRAL RESOURCES, INC.
By /S/ XXXXXXX X. XXXXX Date December 29, 1999
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Xxxxxxx X. Xxxxx, Treasurer
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(Name and Title)
OVERSEAS PRIVATE INVESTMENT CORPORATION
By /S/ XXXXX X. XXXX Date December 29, 1999
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Xxxxx X. Xxxx
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(Name and Title)
