EXHIBIT 99.3
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LIQUIDITY REIMBURSEMENT AGREEMENT
between
CITIBANK, N.A., ACTING THROUGH ITS NASSAU BRANCH,
and
CITIBANK, N.A.,
not in its individual capacity,
but solely as Trustee of Guaranteed Trade Trust 1997-A
dated as of November 26, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.....................................................1
ARTICLE II
THE ADVANCES
Section 2.1 Commitment......................................................5
Section 2.2 Notice of Drawing...............................................5
Section 2.3 Disbursement of Funds...........................................5
Section 2.4 Evidence of Obligation to Reimburse.............................6
Section 2.5 Interest Payments; Remittances of Interest by Trustee...........6
Section 2.6 Remittances of Reimbursements by Trustee........................6
Section 2.7 Reimbursement on Non-Business Days..............................6
Section 2.8 Method and Place of Reimbursement...............................6
Section 2.9 Limitations on Trustee's Obligations to Remit...................7
Section 2.10 Obligations Absolute............................................7
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Effectiveness...........................7
Section 3.2 Conditions Precedent to Each Advance............................9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Company, the Trustee
and Citibank...................................................9
ARTICLE V
COMPANY FAILURE EVENTS
Section 5.1 Company Failure Events.........................................10
ARTICLE VI
MISCELLANEOUS
Section 6.1 Exercise of Rights.............................................10
Section 6.2 Successors and Assigns.........................................10
Section 6.3 Headings.......................................................10
Section 6.4 Notices; Requests; Demands.....................................11
Section 6.5 Survival of Representations and Warranties.....................12
Section 6.6 Governing Law..................................................12
Section 6.7 Counterparts...................................................12
Section 6.8 Further Assurances.............................................12
Section 6.9 Recourse.......................................................13
Section 6.10 Judgment Currency..............................................13
Section 6.11 Effective Date.................................................13
Section 6.12 Amendment......................................................13
EXHIBITS
Exhibit A - Form of Notice of Drawing
Exhibit B - Opinion of Special Counsel to the Trustee
Exhibit C - Opinion of General Counsel of Eximbank
LIQUIDITY REIMBURSEMENT AGREEMENT
LIQUIDITY REIMBURSEMENT AGREEMENT dated as of November 26,
1997 among CITIBANK, N.A., ACTING THROUGH ITS NASSAU BRANCH (in such
capacity, the "Provider") and CITIBANK, N.A., not in its individual
capacity, but solely as trustee (in such capacity, the "Trustee") of
GUARANTEED TRADE TRUST 1997-A (the "Trust").
W I T N E S S E T H:
WHEREAS, Citicorp North America, Inc. (the "Depositor")
proposes to purchase a Promissory Note (as defined herein) of Empresa
Colombiana de Petroleos (the "Company") from Citibank, N.A., acting
through its Nassau Branch (in such capacity, the "Originator")
WHEREAS, the Depositor proposes to deposit such Promissory
Note in the Trust which will in turn issue Guaranteed Trade Certificates
evidencing interests in the Promissory Note (the "Certificates") pursuant
to the Declaration of Trust (as defined herein) and the Depositor proposes
to sell the Certificates;
WHEREAS, as a condition to the purchase by the Depositor of
the Promissory Note from the Originator and the issuance of the
Certificates by the Trust, the Depositor and the Trust require that the
timely distribution of principal and interest to holders of Certificates
be supported by the irrevocable mechanism provided by this Agreement;
WHEREAS, subject to the terms and conditions set forth herein
and in a Letter Agreement of even date between the Company and the
Provider, the Provider is willing to provide the Trust the mechanism
provided herein and in the Declaration of Trust;
NOW THEREFORE, it is agreed:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
equally applicable to both singular and plural forms of the terms
defined):
"Advance" shall have the meaning provided in Section 2.1.
"Agreement" shall mean this Liquidity Reimbursement Agreement
as it may from time to time be amended, supplemented or otherwise modified
in accordance with the terms hereof.
"Base Rate" shall mean the fluctuating rate per annum, as
shall be in effect from time to time, equal to the higher of (i) the rate
of interest announced publicly by Citibank, N.A. in New York, New York,
from time to time as Citibank, N.A.'s Base Rate or (ii) 50 basis points
per annum above the Federal Funds Rate.
"Business Day" means any day on which banks and the Federal
Reserve Bank of New York are open for business in New York.
"Certificates" shall have the meaning provided in the Declaration
of Trust.
"Certificate Liquidity Bank Account" shall have the meaning
provided in Section 2.8 of this Agreement.
"Colombian Business Day" shall mean any Business Day on which
banks are open for business in Colombia.
"Commitment" shall mean $16,460,815.39, but in no event less
than an amount equal to the Maximum Payment Amount.
"Company" shall have the meaning provided in the first paragraph
of this Agreement.
"Company Documents" shall mean and include the Credit
Agreement, the Letter Agreement, the Promissory Note and the Reimbursement
Promissory Note.
"Company Failure Event" shall have the meaning provided in the
Reimbursement Promissory Note.
"Credit Agreement" shall mean the Credit Agreement dated as of
April 1, 1996 among the Originator, the Company and Eximbank, as the same
may at any time be amended or modified and in effect, in accordance with
the terms hereof and thereof.
"Credit Agreement Event of Default" shall mean an "Event of
Default" as defined in the Credit Agreement.
"Declaration of Trust" shall mean the Supplement and the Master
Terms.
"Depositor" shall have the meaning provided in the first
paragraph to this Agreement.
"Effective Date" shall have the meaning provided in Section 6.11.
"Eximbank" shall mean the Export-Import Bank of the United States.
"Eximbank Guarantee Agreement" shall mean the Guarantee
Agreement dated as of April 1, 1996 between the Provider and Eximbank, as
the same may at any time be amended or modified and in effect, in
accordance with the terms hereof and thereof.
"Expiry Date" shall mean the earlier of (a) July 15, 2003 or
(ii) the date on which Payment Certificates are delivered to the Trustee
by Eximbank.
"Federal Funds Rate" shall mean, for any day, a fluctuating
interest rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such
day for such transactions received by the Provider from three federal
funds brokers of recognized standing selected by it.
"Guarantee Legend" shall mean the guarantee legend of Eximbank
endorsed on the Promissory Note pursuant to Section 3.02 of the Eximbank
Guarantee Agreement.
"Guaranteed Interest Rate" shall have the meaning provided in
the Eximbank Guarantee Agreement.
"Interest" shall mean, with respect to each day on which an
Advance is outstanding and has not been reimbursed under this Agreement,
an amount equal to the unpaid amount of such outstanding Advance times the
applicable Interest Rate.
"Interest Rate" shall mean, (A) with respect to any day on or
prior to the fifteenth day after the making of an Advance, the greater of
(i) a per annum interest rate expressed as a percentage equal to the Base
Rate less 50 basis points per annum (calculated and applied on the basis
of the actual number of days and a year of 360 days) and (ii) the
Guaranteed Interest Rate (calculated and applied on the basis of a 360-day
year consisting of twelve 30-day months) and (B) with respect to any day
following the fifteenth day after the making of an Advance, the greater of
(i) a per annum interest rate expressed as a percentage equal to the Base
Rate (calculated and applied on the basis of the actual number of days and
a year of 360 days) and (ii) the Guaranteed Interest Rate (calculated and
applied on the basis of a 360-day year consisting of twelve 30-day
months).
"Letter Agreement" shall mean the Letter Agreement dated
November 26, 1997 between the Company and the Provider.
"Master Terms" shall mean the Master Terms of Trust dated as
of November 26, 1997 between the Trustee and the Depositor, as the same
may at any time be amended or modified and in effect, in accordance with
the terms hereof and thereof.
"Maximum Payment Amount" shall mean the maximum remaining
scheduled installment of principal and interest due at any time on the
Promissory Note, provided that for purposes of determining the Maximum
Payment Amount hereunder, the maximum remaining scheduled installment of
principal and interest due with respect to the Promissory Note upon
assignment to Eximbank in exchange for a Payment Certificate pursuant to
Section 4.03 of the Eximbank Guarantee Agreement shall equal zero.
"Notice of Drawing" shall have the meaning provided in Section
2.2.
"Originator" shall have the meaning provided in the first
paragraph of this Agreement.
"Payment Certificates" shall mean certificates issued by
Eximbank to the Trustee for the benefit of the holders of Certificates
pursuant to Section 4.05 of the Eximbank Guarantee Agreement under the
circumstances described therein.
"Payment Deficiency" shall mean, on any Promissory Note
Payment Date, the difference obtained (if a positive number) by
subtracting (x) all amounts received by the Trustee from or on behalf of
the Company (other than by means of an Advance) in respect of principal
and interest due and payable on the Promissory Note with respect to such
Promissory Note Payment Date from (y) all scheduled payments of principal
and interest due and payable on such Promissory Note Payment Date.
"Promissory Note" shall mean the Promissory Note of the
Company issued pursuant to the Credit Agreement.
"Promissory Note Payment Date" shall have the meaning provided
in the Declaration of Trust, provided that for purposes of this Agreement,
with respect to a Promissory Note which is assigned to Eximbank in
exchange for a Payment Certificate pursuant to Section 4.05 of the
Eximbank Guarantee Agreement, no Promissory Note Payment Date shall occur
after the date such Payment Certificate is delivered to the Trustee.
"Prospectus" shall mean the Prospectus dated November 6, 1997
as it relates to the Certificates.
"Prospectus Supplement" shall mean the Prospectus Supplement
dated November 21, 1997 relating to the Certificates.
"Provider" shall have the meaning provided in the first paragraph
of this Agreement.
"Provider's Office" shall mean the office of the Provider at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Department, or such other office as the Provider may designate in
writing to the Trustee and the Company.
"Reimbursement Failure" shall mean the failure of the Provider
to be reimbursed in full for the entire amount of an Advance, together
with any interest accrued thereon at the Guaranteed Interest Rate, within
150 days of the date such Advance is made.
"Reimbursement Promissory Note" shall mean the promissory note
of the Company delivered pursuant to the Letter Agreement and in
substantially the form attached thereto as Exhibit A.
"Supplement" shall mean the Supplement to the Declaration of
Trust dated as of November 26, 1997 between the Depositor and the Trustee,
as the same may at any time be amended or modified and in effect, in
accordance with the terms hereof and thereof.
"Transfer Agreement" shall mean the Transfer Agreement dated
November 26, 1997 between the Depositor and the Originator, as the same
may at any time be amended or modified and in effect, in accordance with
the terms hereof and thereof.
"Trust" shall have the meaning provided in the first paragraph of
this Agreement.
"Trustee" shall mean Citibank, N.A., not in its individual
capacity but solely as trustee of the Trust under the Declaration of
Trust, and any of its successors and assigns in such capacity.
"Underwriter" shall mean Citicorp Securities, Inc.
"Underwriting Agreement" shall mean the Underwriting Agreement
dated November 21, 1997 between the Underwriter, the Depositor and the
Company.
ARTICLE II
THE ADVANCES
Section 2.1 Commitment. The Provider hereby irrevocably
agrees, for the benefit of the Trustee, on behalf of the Trust, on the
terms and conditions hereinafter set forth, to make advances (the
"Advances") in the event of a Payment Deficiency as provided herein from
time to time on any Business Day during the period from and including
November 26, 1997, to and including the Expiry Date in an amount not to
exceed the Commitment; provided that, in no event shall the amount of an
Advance exceed the amount of the Payment Deficiency to which such Advance
relates. Funds may from time to time be advanced, reimbursed pursuant to
Sections 2.6 or 2.9 and readvanced under this Article II.
Section 2.2 Notice of Drawing. Whenever required pursuant to
Section 3.3(a)(i) of the Declaration of Trust, the Trustee on behalf of
the Trust shall give the Provider at the Provider's Office written notice
or telephonic notice (to be promptly confirmed in writing thereafter) by
no later than 10:30 a.m. (New York City time) on the proposed advance
date. Each such written notice (each, a "Notice of Drawing") shall be in
substantially the form of Exhibit A hereto and shall specify the principal
amount the Trustee requires the Provider to advance hereunder.
Section 2.3 Disbursement of Funds. Subject to the satisfaction
of the conditions set forth in Article III, by no later than 12:30 p.m.
(New York City time) on the requested date of advance specified in the
Notice of Drawing, the Provider will deliver to the Trustee, on behalf of
the Trust, in freely transferable U.S. dollars and in immediately
available funds, the Advance requested to be made on such date.
Section 2.4 Evidence of Obligation to Reimburse. (a) The
Provider shall maintain an account or accounts evidencing the obligation
of the Trustee to remit funds on behalf of the Trust pursuant to the
Declaration of Trust to the Provider, and of the obligation of the Company
to reimburse the Provider pursuant to the Letter Agreement and the
Reimbursement Promissory Note, from time to time resulting from each
Advance, including the amounts of any Advances reimbursed to the Provider
and any Interest paid from time to time hereunder. The entries made in
such account or accounts shall be prima facie evidence of the amounts thus
owed. The failure of the Provider to make any such entry shall in no
manner affect the obligation of the Trustee to remit funds to the Provider
pursuant to the Declaration of Trust or of the Company to reimburse the
Provider for any Advances hereunder or to pay to the Provider any Interest
arising under the Reimbursement Promissory Note.
Section 2.5 Interest Payments; Remittances of Interest by
Trustee. (a) Pursuant to Section 5.3(b) of the Declaration of Trust and
subject to Section 2.9 hereof, the Trustee, on behalf of the Trust, agrees
to remit Interest to the Provider with respect to the unreimbursed amount
of each Advance from and including the date such Advance is made to but
excluding the date such Advance is reimbursed in full by the Company
pursuant to the Letter Agreement and the Reimbursement Promissory Note
and, to the extent that such Interest is so remitted by the Trustee to the
Provider, such Interest shall be credited against amounts owed by the
Company pursuant to the Letter Agreement and the Reimbursement Promissory
Note.
Section 2.6 Remittances of Reimbursements by Trustee. Pursuant
to Section 5.3(b) of the Declaration of Trust and subject to Section 2.9
hereof, the Trustee, on behalf of the Trust, agrees to remit to the
Provider the entire amount of each Advance not reimbursed by the Company
pursuant to the Letter Agreement and the Reimbursement Promissory Note
and, to the extent that such amount is so remitted by the Trustee to the
Provider, such amount shall be credited by the Provider against amounts
owed by the Company pursuant to this Section 2.6.
Section 2.7 Reimbursement on Non-Business Days. Whenever any
reimbursement or payment to be made hereunder shall be stated to be
required to be made on a day which is not a Business Day, the date on
which such reimbursement or payment is required to be made shall be
extended to the next succeeding Business Day, provided that the Interest
shall continue to be applied at the Interest Rate during such extension.
Section 2.8 Method and Place of Reimbursement. All
reimbursements and payments to the Provider under this Agreement shall be
made without offset, counterclaim or setoff, to the account of the
Provider at Citibank, Account Number (the "Certificate Liquidity Bank
Account") on the date when required to be made and shall be made in freely
transferable U.S. dollars and in immediately available funds. Amounts
reimbursed or paid hereunder shall be applied first to payment of any
Interest and then to reimbursement of Advances.
Section 2.9 Limitations on Trustee's Obligations to Remit.
Except as otherwise provided in Section 3.7 of the Declaration of Trust,
the Trustee's obligations to remit funds to reimburse the Provider for an
Advance and to pay any Interest shall be satisfied solely from the assets
of the Trust as provided in the Declaration of Trust and no recourse shall
be had for any such obligation against the Trustee or any asset of the
Trustee.
Section 2.10 Obligations Absolute. Except as provided in
Article III hereof, the obligations of the Provider to make Advances
hereunder shall be absolute and irrevocable and such Advances shall be
made in accordance with the terms hereof, irrespective of any right, claim
or defense (including the defense of fraud) that the Provider may have at
any time against the Trustee, the Trust or the Company, whether in
connection with this Agreement, the transactions contemplated hereunder or
by the Company Documents or any unrelated transaction and notwithstanding
the bankruptcy or insolvency of the Company, the Depositor or the Trustee.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Effectiveness. This
Agreement shall be effective upon the occurrence of the following conditions
precedent:
(a) Basic Documents. Each of the following documents shall
have been executed and delivered by the parties thereto and be in full
force and effect, the Provider shall have received, in the case of (i),
(iii), (iv), (vii), (viii) and (ix) below, copies thereof, in the case of
(ii) below, the duly executed Reimbursement Promissory Note, and, in the
case of (v), (vi) and (x) below, duly executed counterparts thereof, and
each such document shall be in form and substance satisfactory to the
Provider:
(i) the Promissory Note with the Guarantee Legend of Eximbank
endorsed thereon;
(ii) the Reimbursement Promissory Note;
(iii) the Credit Agreement;
(iv) the Certificates;
(v) the Supplement;
(vi) the Master Terms;
(vii) the Eximbank Guarantee Agreement;
(viii) the Transfer Agreement;
(ix) the Underwriting Agreement; and
(x) the Letter Agreement
(b) No Default. After giving effect to the effectiveness of
this Agreement, the Trustee shall have performed its obligations under the
Declaration of Trust and the Company shall not be in default of (i) any of
its obligations under the Letter Agreement or the Reimbursement Promissory
Note or (ii) any of its material obligations under any of the other
Company Documents.
(c) Representations and Warranties. All representations and
warranties of the Trustee contained in this Agreement shall be true and
correct and with the same force and effect as though such representations
and warranties had been made as of the Effective Date.
(d) Certificates and Declaration of Trust in Full Force and
Effect. The Certificates shall have been duly executed and authenticated
by the Trustee pursuant to the Declaration of Trust and purchased by the
Underwriter pursuant to the Underwriting Agreement and the Declaration of
Trust and the Certificates shall be in full force and effect.
(e) Eximbank Guarantee Agreement and Guarantee Legend in Full
Force and Effect. The Eximbank Guarantee Agreement and the Guarantee
Legend endorsed on the Promissory Note shall be in full force and effect.
(f) Opinions of Counsel. The Provider shall have received (i)
from ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Trustee, a favorable opinion
in form and substance satisfactory to the Provider and substantially to
the effect set forth in Exhibit B; (ii) from the General Counsel of
Eximbank, a favorable opinion in form and substance satisfactory to the
Provider and substantially to the effect set forth in Exhibit C; and (iii)
from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the
Provider, a favorable opinion satisfactory in form and substance to the
Provider with respect to certain matters relating to this Agreement and
the Eximbank Guarantee Agreement and the transactions contemplated hereby
(including, without limitation, as to the enforceability of the Eximbank
Guarantee Agreement against Eximbank).
(g) Documentation and Proceedings. The Provider shall have
received copies of this Agreement and incumbency certificates, all
certified on the Effective Date by appropriate corporate authorities and
satisfactory in form and substance to the Provider.
(h) Trustee's Certificates. The Provider shall have received a
certificate or certificates satisfactory in form and substance to the
Provider and executed by an authorized officer of the Trustee certifying
that it has received on behalf of the Trust and has in its possession the
Promissory Note with the Guarantee Legend endorsed thereon.
(i) Fees. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have
received its fee and expenses of $10,000 in connection with its acting as
special counsel to the Provider.
(j) No Adverse Law or Regulation. No law or regulation shall
be applicable that, in the judgment of the Provider, restrains, prevents
or imposes materially adverse conditions upon the transactions
contemplated hereby.
(k) Other Documents. To the extent not provided to the
Provider pursuant to any other paragraph of this Section 3.1, the Provider
shall have received copies of all agreements, certificates and other
documents delivered in connection with the issuance of the Certificates
together with, in the case of legal opinions, letters permitting the
Provider to rely thereon.
(l) Stamp Taxes and Similar Taxes Paid. All stamp taxes and
similar taxes and duties payable in connection with the transactions
contemplated by this Agreement shall have been paid in full.
Section 3.2 Conditions Precedent to Each Advance. The
obligation of the Provider to make an Advance shall be subject to the
further conditions precedent that: (i) the Provider shall have received a
Notice of Drawing in accordance with Section 2.2; (ii) no event has
occurred and is continuing that constitutes a Reimbursement Failure; (iii)
the amount of such Advance shall not exceed the amount of the Payment
Deficiency on the date of the related Notice of Drawing and (iv) the
Eximbank Guarantee Agreement and the Guarantee Legend shall be in full
force and effect and Eximbank shall not have improperly dishonored any
prior demand made under the Eximbank Guarantee Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Trustee .
The Trustee hereby represents and warrants as follows:
(i) Corporate Existence. The Trustee is duly organized,
validly existing, and in good standing as a national banking
association under the laws of the United States; and
(ii) Corporate Power; Authorization. The Trustee has the
full corporate power, authority and legal right to execute, deliver
and perform this Agreement and the Declaration of Trust on behalf of
the Trust and shall have taken all necessary action to authorize the
execution, delivery, and performance by it of this Agreement and the
Declaration of Trust. This Agreement and the Declaration of Trust
have been duly executed and delivered by the Trustee.
ARTICLE V
COMPANY FAILURE EVENTS
Section 5.1 Company Failure Events. So long as the Eximbank
Guarantee Agreement and the Guarantee Legend are in full force and effect,
in the event of (i) the failure by the Company to reimburse the Provider
for any Advance, and to pay any Interest applicable thereto, within two
Colombian Business Days after such Advance was made by the Provider, or
(ii) the failure by the Company to pay any other amounts due under the
Company Documents and the continuance of such failure for a period of 7
calendar days, the obligations of the Provider to make Advances shall,
subject to the provisions of Sections 2.1 and 3.2, continue.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Exercise of Rights. No failure or delay on the
part of the Provider to exercise any right, power or privilege under this
Agreement and no course of dealing between either the Trustee, on behalf
of the Trust or the Company and the Provider shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein expressly provided are cumulative and not exclusive of
any rights or remedies which the Provider would otherwise have pursuant to
law or equity. No notice to or demand on any party in any case shall
entitle such party to any other or further notice or demand in similar or
other circumstances, or constitute a waiver of the right of the other
party to any other or further action in any circumstances without notice
or demand.
Section 6.2 Successors and Assigns. This Agreement shall bind,
and the benefits hereof shall inure to, the Trust, the Trustee and the
Provider and their respective successors and assigns, provided that (i)
the Trustee, on behalf of the Trust may not transfer or assign any or all
of its rights and obligations hereunder without the prior written consent
of the Provider, (ii) the Provider shall not assign its rights and
obligations hereunder without the prior written consent of the Trustee and
(iii) each of Moody's and Standard & Poor's shall have delivered to the
Trustee written confirmation that any such assignment by the Provider
shall not result in the qualification, downgrade or withdrawal of the then
current ratings of the Certificates. Notwithstanding anything to the
contrary contained herein, the Provider may assign any or all of its
rights hereunder or under any other Company Document, the Declaration of
Trust or the Eximbank Guarantee Agreement, as security, to any Federal
Reserve Bank.
Section 6.3 Headings. The descriptive headings of the various
provisions of this Agreement are inserted for convenience of reference
only and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.
Section 6.4 Notices; Requests; Demands. Except where
telephonic instructions or notices are authorized herein to be given, all
notices, demands, instructions and other communications required or
permitted to be given to or made upon any party hereto shall be in writing
and in the English language and shall be personally delivered or sent by
registered, certified or express mail, postage prepaid, return receipt
requested, or by facsimile transmission (with hard copy to follow) or
prepaid telegram (with messenger delivery specified in the case of a
telegram) and shall be deemed to be given for purposes of this Agreement
on the day that such writing is delivered or sent to the intended
recipient thereof in accordance with the provisions of this Section.
Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this Section, notices, demands,
instructions and other communications in writing shall be given to or made
upon the respective parties hereto at their respective addresses (or to
their respective facsimile or telephone numbers) and in the case of
telephonic instructions or notices, by calling the telephone number or
numbers indicated for such party below:
If to the Company:
Empresa Colombiana de ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
If to the Provider:
Citibank, N.A., acting
through its Nassau Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
Citibank, N.A., as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trust:
Guaranteed Trade Trust 1997-A
c/o Citibank, N.A., as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Section 6.5 Survival of Representations and Warranties. All
representations and warranties contained in Article IV shall survive the
execution and delivery of this Agreement and any Advance and shall
continue so long as and until such time as all amounts reimbursable or
payable hereunder shall have been reimbursed or paid in full or the
Provider has any Commitment hereunder.
Section 6.6 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 6.7 Counterparts. This Agreement may be executed in
any number of copies, and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument.
Section 6.8 Further Assurances. The Trustee, on behalf of the
Trust agrees to do such further acts and to execute and deliver to the
Provider such additional assignments, agreements, powers and instruments,
as the Provider may prepare and require or deem advisable to carry into
effect the purposes of this Agreement or to better assure and confirm unto
the Provider its rights, powers and remedies hereunder; provided however,
that the Trustee shall not be required to execute any such document which
may in its sole judgment conflict with its duties or, so long as such
execution is not required hereunder, increase its liability under this
Agreement or the Declaration of Trust.
Section 6.9 Recourse. (a) The obligations of the Trustee under
this Agreement and the Declaration of Trust are solely the obligations of
the Trustee, on behalf of the Trust. Except as expressly provided in
Section 3.7 of the Declaration of Trust, no recourse shall be had for the
reimbursement or payment of any amount reimbursable or owing in respect of
any Advance or Interest or for the payment of any fee hereunder or any
other obligation of the Trustee or claim against the Trustee arising out
of or based upon this Agreement or the Declaration of Trust against
Citibank, N.A., in its individual capacity or any stockholder, employee,
officer, director, duly designated agent or incorporator of the Trustee.
Nothing in this Section 6.9 shall limit any rights that the Provider may
have against Persons other than the Trustee, on behalf of the Trust.
(b) The Provider agrees that the obligations of the Trustee on
behalf of the Trust to remit funds hereunder in respect of Advances shall
be payable solely from the Trust as provided in Section 5.3(b) of the
Declaration of Trust and that, except as expressly provided in Section 3.7
of the Declaration of Trust, the Provider shall not look to any property
or assets of the Trustee in respect of such obligations.
Section 6.10 Judgment Currency. All payments required to be
made hereunder by the Trustee on behalf of the Trust, shall be in United
States Dollars, regardless of any law, rule, regulation or statute,
whether now or hereafter in existence or in effect in any jurisdiction,
which affects or purports to affect such obligations.
Section 6.11 Effective Date. This Agreement shall become
effective on the date (the "Effective Date") on which the Trustee on
behalf of the Trust and the Provider shall have executed and delivered a
counterpart of this Agreement and all of the conditions set forth in
Section 3.1 hereof have been satisfied.
Section 6.12 Amendment. No amendment or waiver of any
provision of this Agreement, nor consent to any departure therefrom shall
in any event be effective unless the same shall be in writing and signed
by the Provider and the Trustee, on behalf of the Trust, and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No amendment hereto shall be
effective unless the Trustee shall have received a statement in writing
from each of the Rating Agencies that such amendment will not result in a
downgrading or withdrawal of the rating assigned to the Certificates by
such Rating Agency, which shall have received no less than 30 days notice
(which notice may be waived by such Rating Agency) of such amendment.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the
date first above written.
CITIBANK, N.A., ACTING THROUGH ITS
NASSAU BRANCH
By:-----------------------------------
Name:
Title:
Accepted and agreed to this 26th day
of November 1997.
CITIBANK, N.A., not in its individual
capacity but solely as Trustee of
GUARANTEED TRADE TRUST 1997-A
By:------------------------------
Name:
Title:
EXHIBIT A
NOTICE OF DRAWING
Citibank, N.A., acting through
its Nassau Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Office
[Date]
Ladies and Gentlemen:
The undersigned, Citibank, N.A., as Trustee of the Guaranteed
Trade Trust 1997-A (the "Trust"), refers to the Liquidity Reimbursement
Agreement, dated as of November 26, 1997 (the "Liquidity Reimbursement
Agreement", the terms defined therein being used herein as therein
defined), and hereby gives you notice, irrevocably, pursuant to Section
2.2 of the Liquidity Reimbursement Agreement, that the undersigned hereby
requests an Advance under the Liquidity Reimbursement Agreement, and in
that connection sets forth below the information relating to such Advance
(the "Proposed Advance") as required by Section 2.2 of the Liquidity
Reimbursement Agreement:
The aggregate amount of the Proposed Advance is
$_______________.
Such amount shall be transferred as follows: [insert wiring
instructions].
The undersigned hereby certifies that on the date hereof, and
on the date of the Proposed Advance, no event has occurred and is
continuing that constitutes a Reimbursement Failure.
Very truly yours,
CITIBANK, N.A., not in its individual
capacity but solely as Trustee of
Guaranteed Trade Trust 1997-A
By:____________________________________
Name:
Title:
EXHIBIT B
A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the
Trustee, in form and substance satisfactory to the Provider and
substantially to the effect set forth below:
(a) The Trustee is validly existing as a banking association
organized under the laws of the United States, and has the power and
authority (corporate and other) to enter into, and to take all
action required of it under, the Declaration.
(b) The Declaration has been duly authorized, executed and
delivered by the Trustee and constitutes a legal, valid and binding
agreement of the Trustee, enforceable against the Trustee in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, receivership, conservatorship,
liquidation, reorganization, moratorium or other similar laws
affecting the enforcement of rights of creditors of national banking
associations generally, and the application of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) The Certificates have been duly executed, authenticated
and delivered by the Trustee on behalf of the Trust.
EXHIBIT C
A favorable opinion of the General Counsel of Eximbank in form
and substance satisfactory to the Provider and substantially to the effect
set forth below:
(a) Eximbank is a validly organized body corporate and agency
of the United States of America for the purposes of the transaction
contemplated by the Eximbank Guarantee Agreement with power and
authority set forth in the Export-Import Bank Act of 1945, as
amended, to enter into the Eximbank Guarantee Agreement in its
capacity as guarantor of the principal of and interest on the
Promissory Note, to endorse a Guarantee Legend on the Promissory
Note and to issue Eximbank Payment Certificates with respect to the
Promissory Note;
(b) The Eximbank Guarantee Agreement has been duly and validly
authorized, executed and delivered by Eximbank;
(c) The endorsement of the Guarantee Legend on the Promissory
Note has been duly and validly authorized by Eximbank and such
Guarantee Legend has been endorsed on the Promissory Note issued by
the Company and Eximbank's guarantee of payment of the principal of
and interest on such Promissory Note will be a legal, valid and
binding undertaking of Eximbank in accordance with the terms of the
Guarantee Agreement, and such guarantee will be backed by the full
faith and credit of the United States of America; and
(d) The issuance of an Eximbank Payment Certificate with
respect to the Promissory Note has been duly and validly authorized
by Eximbank and, when such Eximbank Payment Certificate is issued by
Eximbank pursuant to the terms of the Guarantee Agreement,
Eximbank's payment obligation on such Eximbank Payment Certificate
will be a legal, valid and binding undertaking of Eximbank in
accordance with its terms, and such payment obligation will be
backed by the full faith and credit of the United States of America.