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EXHIBIT 10.2
OVERSEAS PRIVATE INVESTMENT CORPORATION
WASHINGTON, D.C. 20527, U.S.A.
[Seal] OFFICE OF THE
PRESIDENT
September 29, 1995
Teberebie Goldfields Limited
c/o The Pioneer Group, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
The Pioneer Group, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Re: Overseas Private Investment Corporation ("OPIC")
Commitment to Guarantee Loans to Teberebie Goldfields
Limited (the "Company")
Ladies and Gentlemen:
This letter (the "Commitment Letter") constitutes and sets forth the terms
and conditions of OPIC's commitment to guarantee, pursuant to Section 234(b) of
the Foreign Assistance Act of 1961, as amended, a loan or loans to the Company,
which is a corporation organized and existing under the laws of the Republic of
Ghana and directly ninety percent (90%) owner by Pioneer Goldfields Limited,
which is a company limited by shares organized and existing under the laws of
Guernsey, the Channel Islands ("PGL"), and wholly-owned by the Pioneer Group,
Inc., a Delaware corporation (the "Sponsor"). OPIC is willing to guarantee,
and, by its acceptance of this Commitment Letter, the Company confirms that it
is willing to borrow, a loan or loans (the "Loan") to be applied to the Project
(as defined below) on the following terms and conditions:
1. Parties: (a) The Company, which will be the
borrower of the Loan; and
(b) the Sponsor.
0000 XXX XXXX XXX., X.X. - WASHINGTON, D.C. 20527 - FAX (000) 000-0000 -
(000) 000-0000
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2. Project: An expansion of the Company's existing gold mine
operations located southwest of the town of Tarkwa in
western Ghana (the "Teberebie Mine"), intended to
increase the Teberebie Mine's output from approximately
270,000 to approximately 427,000 xxxx ounces of gold per
year, as more fully described in the following documents
that the Sponsor has submitted to OPIC: the U.S. Sponsor
Disclosure Report, dated August 11, 1995; the draft
report of Xxxxxxx, Xxxxx & Xxxx, dated August 8, 1995,
captioned "Due Diligence Review, Pioneer Goldfields
Limited, Teberebie Gold Mine, Ghana, West Africa"; and
the draft "Five-Year Business Plan (1996-2000) of TGL
and PGL".
3. Amount: The outstanding principal amount of the Loan shall not
exceed $54,000,000 (the "Guaranty Commitment"). As used
herein the symbol "$" indicates United States dollars.
4. Financial Plan: The Project's total cost is estimated to be $74,000,000,
to be funded as follows (the "Financial Plan"):
Senior Debt: Amount
----------- -----------
The Loan $54,000,000
Equity:
------
Company funds
from operations 20,000,000
-----------
Total Funding: $74,000,000
------------- -----------
5. Term: The Loan shall be repaid in 12
approximately equal semi-annual
installments, commencing on the later of
(a) June 15, 1997 and (b) the first
Payment Date (as defined below) to occur
after the date of the first disbursement
of the Loan.
6. Interest Rate: Payable semi-annually in arrears at a rate
or on a basis to be negotiated with the
guaranteed lender or lenders on terms
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acceptable to OPIC. The Company shall pay to OPIC
a default premium at the rate of two percent (2%)
per annum with respect to any amount not paid when
due under the Finance Agreement (as defined in
paragraph 14(a) below).
7. Guaranty Fee: Two and sixty-five hundredths percent (2.65%) per annum
on the outstanding balance of the Loan, payable to OPIC
semi-annually in arrears (the "Guaranty Fee") on each
Payment Date.
8. Facility Fee: One percent (1%) of the Guaranty Commitment (the
"Facility Fee"), of which (i) $200,000 was previously
paid as a retainer to be credited toward the Facility
Fee, (ii) one-half ($270,000) is due and payable to
OPIC on the date of execution of this Commitment Letter
and (iii) the remainder shall be due and payable on the
date of execution of the Finance Agreement.
9. Commitment Fee: One-half of one percent (0.5%) per annum on the
undisbursed and uncanceled amount of the Guaranty
Commitment (the "Commitment Fee"). Such fee shall
accrue from the date of this Commitment Letter and be
due and payable to OPIC semi-annually in arrears on
December 15 and June 15 of each year (each such date a
"Payment Date"), and upon either the termination of
this Commitment Letter or the date of execution of the
Finance Agreement. The Commitment Fee will continue to
accrue under and shall be payable as provided in the
Finance Agreement on the undisbursed and uncanceled
amount of the Guaranty Commitment. No disbursement of
the Loan shall occur after September 30, 1997.
10. Maintenance Fee: The Company shall pay to OPIC an annual maintenance
fee of $5,000 on each December 15 so long as the Loan
remains outstanding (the "Maintenance Fee").
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11. Cancellation Fee: The Company may cancel any portion of the Guaranty
Commitment to the extent of any undisbursed portion
of the Loan upon payment to OPIC of a cancellation
fee (the "Cancellation Fee") equal to (a) for the
cancellation of any part of the Guaranty Commitment
that, together with all other canceled parts of the
Guaranty Commitment (if any), does not exceed $9
million in the aggregate, one-half percent (0.5%) of
the amount canceled and (b) for the cancellation of
any part of the Guaranty Commitment that, together with
all other canceled parts of the Guaranty Commitment
(if any), does exceed $9 million in the aggregate, one
and one-half percent (1.50%) of the amount canceled.
Any portion of the Guaranty Commitment that for any
reason expires or is terminated without being disbursed
shall be deemed to have been canceled, and the
Cancellation Fee shall apply.
12. Reimbursement of
Expenses: The Company or the Sponsor shall pay or reimburse OPIC
for all reasonable expenses incurred by OPIC in
connection with this Commitment Letter and the
negotiation, execution and implementation of the
Finance Agreement and the Financing Documents (as
defined in paragraph 14(b) below), including reasonable
fees and expenses for outside legal counsel, business
advisers and consultants, travel expenses, cost of
reproducing and binding post-closing document
transcripts (including up to five OPIC copies) and
other such out-of-pocket expenses incurred by OPIC,
including any costs of collecting any amount due
hereunder. Such payment or reimbursement shall be due
and payable within 30 days after the Company's receipt
of OPIC's request therefor from time to time and upon
the extension or termination of this Commitment Letter
or execution of the Finance Agreement, provided that,
to the extent of any portion of the Facility Fee that
has been paid to OPIC, travel expenses incurred by
OPIC staff shall be
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reimbursed out of such fee. The payment or reimbursement
of OPIC expenses shall be due whether or not this
Commitment Letter expires without renewal or is canceled
or a Finance Agreement is executed or any disbursement of
the Loan is made thereunder.
13. Payments: All payments due hereunder to OPIC shall be paid by wire
transfer as follows:
U.S. Treasury Department
New York, NY
ABA No. 0000-0000-0
TREAS NYC/CTR/BNF=AC-71000001
OBI=OPIC Loan Number 641-95-353-IG
14. Other
Conditions: (a) The terms and conditions of the Loan and of OPIC's
guaranty thereof (the "OPIC Guaranty") shall be set forth
in a finance agreement with the Company (the "Finance
Agreement") providing the foregoing terms, the terms and
conditions set forth in the term sheet attached thereto
as Annex A and such other terms and conditions as are
mutually agreed to between the parties.
(b) On the date of execution of the Finance Agreement, no
condition shall exist that in OPIC's judgment materially
adversely affects the Company's or the Sponsor's ability
to carry out the Project or to perform their respective
obligations under the Finance Agreement and all documents,
instruments and approvals required by the Finance
Agreement (collectively with the Finance Agreement, the
"Financing Documents").
(c) The Financing Documents shall be satisfactory to OPIC
in form and substance.
(d) The Company shall arrange for, and pay all costs
associated with, the funding of the Loan, including
without limitation the fees of all placement agents,
paying agents and liquidity facility providers
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and their respective counsel, and all documents,
instruments and approvals required in connection with
such funding shall be satisfactory to OPIC in form and
substance.
15. Termination: If for any reason the Finance Agreement is not
executed and delivered on or before March 1, 1996,
OPIC's commitment and its obligations hereunder will
thereupon terminate. In addition, OPIC may, by written
notice to the Sponsor, terminate this commitment and its
obligations hereunder as of an earlier date if, in
OPIC's reasonable judgment, the Sponsor or the Company
is unlikely to be able or willing to perform its
obligations under any Financing Document. Upon any such
termination, the Company or the Sponsor shall forthwith
pay to OPIC the Commitment Fee, the Cancellation Fee and
any other amounts then due hereunder.
16. Extension of
Commitment: The parties hereto shall use their best efforts to
complete negotiations of the Financing Documents as soon
as possible prior to the termination of this Commitment
Letter. Extension of the term of this Commitment Letter
shall be subject, at OPIC's sole discretion, to
modification of the terms hereof.
17. Indemnity: The Company and the Sponsor shall indemnify and hold
harmless OPIC and each of its directors, officers and
employees (each, an "indemnified person") in connection
with any losses, claims, damages, liabilities (or
actions in respect thereof) or other expenses (including
without limitation attorneys' fees and expenses as they
are incurred in connection with investigating,
preparing, or defending any such action or claim) (any
of the foregoing being a "Loss" and collectively
"Losses") to which such indemnified person may become
subject arising out of or relating to this Commitment
Letter, the provision of the
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financing and guaranty contemplated hereby or the use or
intended use of the proceeds thereof; provided that such
indemnity shall not apply to the extent that there is a
final determination that the Loss resulted from (a) the
gross negligence or willful misconduct of the
indemnified person, (b) a failure by OPIC to fulfill its
guarantee obligations with respect to the Loan or (c) a
failure by the Company to pay its financial obligations
under the Financing Documents (except to the extent
arising from fraud or misrepresentation). This indemnity
obligation shall survive the execution of the Finance
Agreement and the expiration, termination or other
modification of the Guaranty Commitment set forth
herein.
18. Joint and Several
Obligations: Payment of all fees and expenses payable to OPIC
hereunder shall be the joint and several obligation of
the Company and the Sponsor, provided that the Sponsor
shall have no obligation for any such fees and expenses
incurred after Project Completion, other than (a) costs
of enforcement of any direct obligation of the Sponsor
hereunder and (b) any amounts owed by the Sponsor
pursuant to Section 17.
19. Counterparts: This Commitment Letter may be executed in separate
counterparts, each of which shall be an original and all
of which taken together shall constitute one and the
same agreement.
20. Governing Law: This Commitment Letter shall be governed by the law of
the State of New York.
In consideration of OPIC's Commitment set forth herein, the Sponsor and
the Company jointly and severally represent and warrant to OPIC that (i) the
Sponsor and the Company and their respective officers, directors, employees and
agents have complied in all material respects with all applicable Corrupt
Practices Laws (as hereinafter defined) in obtaining any consents, licenses,
approvals, authorizations, rights or privileges in respect of the Project, (ii)
the Company is
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otherwise conducting its business in compliance in all material respects with
all applicable Corrupt Practices Laws and (iii) the internal management and
accounting practices and controls of the Company and the Sponsor are adequate
to ensure compliance with applicable Corrupt Practices Laws. This
representation shall survive the execution of the Finance Agreement and any
termination or expiration of the Guaranty Commitment set forth herein. As used
herein, "Corrupt Practices Laws" means (i) the Foreign Corrupt Practices Act of
1977, Pub.L. No. 95-213, as amended (codified in Sections of 15 U.S.C. Section
78 (1988)) and (ii) any other law, regulation, order, decree, or directive
having the force of law and relating to bribery, kick-backs, or similar corrupt
business practices.
If the foregoing correctly sets forth our understanding and agreement,
please confirm your acceptance thereof by (i) signing and returning to OPIC an
executed counterpart of this Commitment Letter and (ii) wiring to OPIC the
amount referred to in paragraph 8 in partial payment of the Facility Fee, all
no later than September 29, 1995. If OPIC receives such countersigned
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copy and funds by such time, then this Commitment Letter shall constitute an
agreement between us effective and legally binding on each of us as of its date.
Very truly yours,
OVERSEAS PRIVATE INVESTMENT CORPORATION
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
Title: Executive Vice President
--------------------------------------
ACCEPTED AND AGREED TO
as of the date of this Commitment Letter:
TEBEREBIE GOLDFIELDS LIMITED
By: /s/ Xxxxxx Xxxxxx, III
------------------------------------
Title: Managing Director
---------------------------------
THE PIONEER GROUP, INC.
By: /s/ XXXX X. XXXXXX
------------------------------------
Xxxx X. Xxxxxx
Title: Vice President
---------------------------------
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ANNEX A
TERM SHEET FOR $54,000,000 OPIC LOAN GUARANTY FOR TEBEREBIE
GOLDFIELDS LIMITED
All capitalized terms used herein have the meanings given them in the
Commitment Letter to which this Term Sheet is attached, unless the context
otherwise requires. The Finance Agreement shall include the following terms and
conditions, in addition to standard representations and warranties, covenants
and events of default:
1. Drawdown and
Commitment Period: The Loan shall be disbursed is not more than
four disbursements. No disbursement of the
Loan shall be made after September 30, 1997
(the period from today through such date being
the "Commitment Period").
2. Voluntary
Prepayment: In addition to any requirements of the
lender(s), the Loan, after the Commitment
Period, may be prepaid in inverse order of
maturity upon the payment to OPIC of the
following premiums (each a "Prepayment
Premium"), each expressed as a percent of the
principal amount prepaid. If prepayment occurs
in the twelve-month period commencing with:
(i) the last day of Commitment Period, the
Prepayment Premium shall be 3%, (ii) the first
anniversary of last day of Commitment Period,
the Prepayment Premium shall be 2%, (iii) the
second anniversary of last day of Commitment
Period, the Prepayment Premium shall be 1%, and
(iv) thereafter, prepayments may be made without
premium.
3. Mandatory
Prepayment: Prepayment of the Loan shall be mandatory in the
event that, and in the amount by which, (i)
insurance proceeds received by the Company in
any fiscal year in excess of $500,000 are not
used to repair or replace damaged assets and
(ii) dividends
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paid in any fiscal year exceed seventy percent (70%) of
the prior year's net income.
4. Security: Subject to the next sentence, the Company's obligations
to OPIC shall be secured by a perfected first lien and
charge on all of the Company's assets, including without
limitation the escrow account referred to below and all
rights of the Company (and of the Sponsor or any
affiliate of the Sponsor) under (i) any existing or
future agreements with purchasers of ore or other output
from the Teberebie Mine; (ii) the Deed of Warranty
Confirmation and Conditions from the Government of Ghana
dated December 3, 1987 and any amendment thereof or
supplement thereto; (iii) the Mining Lease from the
Government of Ghana dated February 2, 1988 and any
amendment thereof or supplement thereto; and (iv) any
other agreements with the Government of Ghana relating
to the Teberebie Mine. The lien and charge so granted
may be of second priority with respect to any crushing
equipment that is subject to prior mortgage (the
"Equipment Mortgage") securing loans outstanding under a
Credit Agreement dated June 1, 1993 between the Company
and Skandinaviska Enskilda Banken (the "SEB Credit
Agreement").
5. Escrow: The Company shall maintain on deposit in an escrow
account in a financial institution satisfactory to OPIC
an amount equal on any date to debt service (including
principal, interest and Guaranty Fee) due on the Loan
during the immediately succeeding six-month period.
6. Subordination: All fees, debt service and any other amounts payable by
the Company to the Sponsor or affiliates thereof shall
be subordinated to the payment of all amounts due in
respect of the Loan, provided that the Company may (a)
pay dividends subject to the dividend restrictions set
forth in paragraph 9(d) below and (b) pay to
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officers of the Company that are also affiliates of the
Sponsor compensation on an unsubordinated basis for
services as an officer of the Company at a rate
established on an arm's length basis.
7. Principal Conditions Precedent to Loan Disbursement:
(a) The following agreement shall have been entered into by the
Company and the other respective parties on terms and
conditions satisfactory to OPIC and shall each be fully
effective:
(i) a share retention agreement between the Sponsor and OPIC
requiring the Sponsor to maintain at least a minimum
indirect percentage interest in the Company;
(ii) agreements and other documents providing the security,
escrow, and subordination arrangements in favor of OPIC
referred to above;
(iii) a project completion agreement among the Company, the
Sponsor and OPIC establishing the obligations and
project completion tests described below in paragraph
11;
(iv) a Participation and OPIC Guaranty Agreement among the
Company, OPIC and a paying agent satisfactory to OPIC,
together with all other documents and instruments
required to fund the Loan on terms and conditions
satisfactory to OPIC;
(v) other construction, supply, lease, management or other
relevant contracts reasonably required as conditions for
disbursement;
(b) OPIC shall have received satisfactory evidence of all necessary
Government of Ghana consents and approvals, including without
limitation:
(i) approval of the Project for purposes of the OPIC
guaranty;
(ii) registration of the Loan with the Central Bank of Ghana
and foreign exchange consents
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permitting the remittance of all amounts payable
under the Financing Documents; and
(iii) all approvals, permits and consents necessary for the
Company to carry out the Project and its ongoing
operations at the Teberebie Mine.
(c) OPIC shall have received satisfactory evidence of all necessary
corporate documents and authorizations of the Company and the
Sponsor.
(d) OPIC shall have received satisfactory evidence that adequate
insurance coverage has been obtained, with OPIC named as an
additional insured.
(e) OPIC shall have received legal opinions of (i) counsel to OPIC
in Ghana, (ii) counsel to the Company in Ghana, (iii) counsel
to the Company in the United States and (iv) counsel to the
Sponsor in the United States, each in form and substance
satisfactory to OPIC.
(f) As of the date of each disbursement, (i) no default under the
Finance Agreement shall have occurred and be continuing, (ii)
the representations and warranties contained in the Finance
Agreement shall be true and correct as if made on such date,
and (iii) no change in circumstances shall have occurred
which materially adversely affects the Company's or the
Sponsor's financial condition or ability to fulfill their
respective obligations under the Financing Documents.
(g) An environmental impact assessment which takes the
implementation of the Project into account shall have been
delivered to OPIC, and OPIC shall be satisfied with the views
and conclusions set forth therein.
8. Reporting Requirements:
(a) The Company shall furnish OPIC with financial information and
reports expressed in U.S. dollars and in the English language,
all prepared in accordance with U.S. generally accepted
accounting principles, including but not limited to quarterly
financial statements, audited annual financial statements,
compliance certificates and, prior to Project Completion (as
defined below under the caption "Project Completion"), quarterly
progress reports.
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OPIC shall have reasonable access to the Company's books and
records and to the Company's premises for purposes of
inspection.
(b) The Company shall annually complete and deliver to OPIC a
"Self-Monitoring Questionnaire" in such form as OPIC may
from time to time prescribe and an environmental compliance
report in form and substance satisfactory to OPIC with respect
to the Company's compliance with the environmental protection
requirements of the Finance Agreement.
9. Principal Financial Covenants:
(a) Indebtedness Restrictions: The Company shall not incur any
indebtedness other than:
(i) that provided in the Financial Plan;
(ii) trade credit on terms not exceeding 90 days;
(iii) indebtedness to the Sponsor or PGL that is subordinated
to the Loan on terms fully acceptable to OPIC; and
(iv) other indebtedness (including lease obligations),
provided that the Company's ratio of total
indebtedness to tangible net worth (which for this
purpose shall include the Company's capitalized
costs of development of the Project) shall not exceed
1.5 to 1.
(b) Mortgage and Lien Restrictions: The Company shall not create or
suffer to exist any liens, security interests or encumbrances
on any of its properties or assets other than:
(i) The liens and encumbrances securing the Loan;
(ii) the Equipment Mortgage, securing not more than $3.12
million of indebtedness outstanding under the SEB Credit
Agreement as of the date of this Commitment Letter;
(iii) tax, mechanics' and other statutory liens being
contested or litigated in good faith; and
(iv) liens and encumbrances securing indebtedness referred
to in paragraph (a)(iii) above that
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OPIC in its sole discretion shall have determined could
not in any way interfere with OPIC's rights as a
secured creditor of the Company or its ability to
enforce such rights without restriction.
(c) Debit Service Coverage Ratio: For the four most recently
completed fiscal quarters of the Company, taken as a single
accounting period, the ratio of (i) the sum of (x) cash
generated by the Company and available for debt service and
(y) cash on hand at the beginning of such period to (ii) the
Company's debt service payments shall not be less than 2.00
to 1.
(d) Dividend Restrictions: The Company may declare or pay dividends
or make other distributions on or in respect of shares of its
capital stock only if (i) no default or event of default under
the finance Agreement then exists or would exist after giving
effect to any such dividend or distribution; (ii) after giving
effect to each such dividend or distribution (w) the ratio of
the Company's total indebtedness to its tangible net worth
(which for this purpose shall include the Company's
capitalized costs of development of the Project) would not
exceed 1.5 to 1, (x) the Company's tangible net worth would
not be less than $45,000,000, of the prior year's net income
unless the Loan is prepaid at the time of such dividend or
distribution in the amount of such excess; and (iii) for the
four next succeeding fiscal quarters of the Company, taken as
a single accounting period, the ratio of (x) the sum of
(A) cash projected to be generated by the Company and
available for debt service and (b) cash on hand at the
beginning of such period to (y) the Company's projected debt
service payments shall be not less than 2.00 to 1.
(e) Tax Gross-up: If for any reason any withholding or other
tax is applied to any payments due under the Finance Agreement,
the Company shall gross up all such payments.
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10. Other Covenants:
(a) All inter-company transactions involving the Company, the
Sponsor or any affiliate thereof shall be conducted on an
arm's-length basis and reported to OPIC.
(b) The Company shall not, without OPIC's prior written consent,
either: (i) form any subsidiaries or (ii) make any investments
outside the ordinary course of business.
(c) The Company shall not carry on any business other than (i)
completion and operation of the Project and the Teberebie Mine
and (ii) exploration activities costing less than $2,000,000
in any fiscal year of the Company that are carried on for the
purpose of locating other gold deposits within Ghana, and the
Company shall not take any action that would constitute or
result in any material alteration to the nature or scope of
that business.
(d) Standard covenants will be provided in the Finance Agreement,
including no material changes in the Project, the documents
referred to herein or the Company's Memorandum or Articles of
Association, no substantial disposition of assets and no merger,
consolidation, etc.
(e) The Company shall not take actions to prevent its employees
from lawfully exercising their right of free association and
their right to organize and bargain collectively. The Company
shall 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 shall not use forced labor. The Company
is not responsible for the actions of a government.
(f) The Company shall not require employees to work more than eight
hours per day for six consecutive days (a "standard work week"),
except with financial remuneration at a rate in excess of that
to which such workers would otherwise be entitled for working
a standard work week. The Company will not employ workers under
the age of 16 years.
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(g) The Project shall be operated in compliance with World Bank
environmental and health and safety standards applicable to
gold mining, except to the extent that OPIC shall have waived
compliance therewith.
(h) The Company shall comply with all applicable Corrupt Practices
Laws.
11. Project Completion:
(a) The Sponsor and the Company shall execute a Project Completion
Agreement that will require the Sponsor (i) to cause the
Company to fulfill all of the requirements needed to achieve
Project Completion, (ii) up to Completion Date, unconditionally
and irrevocably to guarantee the payment of all of the Company's
financial obligations as they become due and payable, including,
without limitation, the Company's obligations under the Finance
Agreement and the Notes, and (iii) pursuant to such guaranty, to
pay amounts demanded from time to time by XXXX. The Sponsor's
payment obligations pursuant to the Project Completion Agreement
shall be subject to a cap equal, at any time, to the dollar
equivalent of the amount of dividends paid by the Company from
the date hereof through the earlier of such time and the date of
Project Completion. "Project Completion" shall means and be
deemed to have occurred at the time that OPIC has notified the
Sponsor that the following have been accomplished to OPIC's
satisfaction:
(w) Physical Completion Test: All buildings, facilities
and necessary infrastructure for the Project shall have
been completely constructed utilizing first-class
standards of workmanship and materials and in accordance
with the Project plans and the terms of applicable
construction agreements, and all equipment shall have
been installed and be operating in accordance with
applicable specifications;
(x) Operational Completion Tests: After satisfaction of the
foregoing physical completion test the Company shall
have demonstrated its production capabilities by
producing 195,000 xxxx ounces of gold over a period of
six months consecutive months;
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(y) Legal conditions:
(i) the Company shall have good freehold title or valid
leasehold interests free and clear of all Liens and
encumbrances (except for security interests permitted by the
Finance Agreement) to all of the land and all buildings,
equipment and facilities now or at the time known to be
required for the Project:
(ii) the Company shall have granted liens in favor of OPIC
with respect to all of the assets required to be pledged
pursuant to the Finance Agreement, and in accordance with the
requirements thereof;
(iii) the Company shall have met all of its material
obligations of any kind through the date of Project Completion,
including, without limitation, payment of all amounts at any
time to become due under contracts for construction,
procurement, installation and improvement of land, buildings,
equipment and facilities for the Project;
(iv) each Financing Document and each other document
identified in the Finance Agreement as being necessary to the
Project remains in full force and effect; and
(v) no Event of Default (or condition or event that, with
the giving of notice, or lapse of time, or both, would
constitute an Event of Default) under the Finance Agreement
shall then exist; and
(z) Financial Tests:
(i) the ratio of total liabilities to tangible net worth of
the Company shall not exceed 1.5 to 1; and
(ii) The Company shall have made at least one principal
repayment on the Loan as and when due from cash flow generated
from the Project.
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(b) The Company shall use its best efforts to achieve Project Completion
by December 31, 1998.
12. Governing Law: The Finance Agreement, the Project Completion Agrement, the
other Financing Documents and related agreements shall be
governed by the laws of the State of New York.
