1
EXHIBIT 10(D)
[OPIC LETTERHEAD]
September 26, 1995
Argosy Energy International
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Mr. X. Xxxx Xxxxxx
Re: Amendment No. 3 ("Amendment No. 3") to Finance Agreement between
Overseas Private Investment Corporation ("OPIC") and Argosy Energy
International (the "Partnership")
Ladies and Gentlemen:
Reference is made to the finance agreement between the Partnership and
OPIC dated May 2, 1994, as amended by Amendment No. 1 dated July 28, 1994, and
Amendment No. 2 dated March 24, 1995 (as amended, the "Finance Agreement"),
setting forth the understanding and agreement between OPIC and the Partnership
with respect to an OPIC guaranty of a loan or loans to the Partnership of up to
$9,200,000.00. All capitalized terms used herein and not otherwise defined
have the meanings set forth in the Finance Agreement.
1. Amendments to Section 1.1 of the Finance Agreement.
(a) Section 1.1 of the Finance Agreement is amended by adding the
following definition of Accounts Payable:
"Accounts Payable" means liabilities arising in the ordinary course
from the purchase of goods and services that have been received or
that are in transit, which liabilities have a term of not more than
one year."
(b) The definition of "Commitment Period" is hereby amended by deleting
the words "September 30, 1995" and inserting in their place the words
"October 31, 1995."
(c) The definition of "Debt Service Coverage Ratio" is amended in its
entirety as follows:
"Debt Service Coverage Ratio" means, for any Fiscal Year for which the
calculation is made, the ratio of (a) the sum of Net Revenues for
such Fiscal Year plus Reimbursement Revenues for such Fiscal Year
plus, if such Fiscal Year is the then current Fiscal Year, the
Liquid Assets (less any Accounts Payable) then owned by the
Partnership,
2
2
if any, to (b) the sum of all installments of principal,
interest and other fees in respect of all of the Partnership's
Indebtedness (including the Loan, but excluding any Accounts Payable
and the Garnet Loan, as defined below) scheduled to be due and payable
during such Fiscal Year in accordance with the amortization schedules
applicable to such Indebtedness. The calculation of the amounts
described in clause (b) of the preceding sentence shall be based upon
the following assumptions; (i) that all payments of principal shall be
made when due and that no prepayments will be made unless such
prepayments have become mandatory as of the date of calculation, (ii)
in the case of a floating interest rate, that the interest rate in
effect on the date of calculation shall remain in effect during the
entire period covered by such calculation, and (iii) that the principal
amount of $4,286,488.00, plus accrued interest, which the Partnership
has borrowed from Garnet since August 12, 1994 (the "Garnet Loan"),
will not be due and payable until the Fiscal Year following the Fiscal
Year in which all amounts due or to become due under the Finance
Agreement and the Notes are paid in full.
(d) The definition of "Present Value Ratio" is amended by:
(i) deleting subsection (i)(z) thereof and inserting in its place the
following subsection:
"(z) the Liquid Assets (less any Accounts Payable) then
owned by the Partnership, if any, to"
and (ii) deleting subsection (ii)(z) thereof and inserting in its place the
following subsection:
"(z) the amount of all other outstanding Indebtedness of
the Partnership (excluding Accounts Payable)."
(e) The definition of "Reimbursement Revenues" is amended
by deleting the words "provided, however, that Reimbursement Revenues shall
not include any reimbursement amounts subject to any assignment or factoring
arrangements pursuant to the Credit Bank Documents".
(f) The definition of "Sales Contract" is amended in its
entirety as follows:
"Sales Contract" means the Contract for Sale of Xxxxxxx Xxxxx dated
March 5, 1995, by and among Ecopetrol, the Partnership and Neo.
(g) The definition of "Stage II Xxxxx" is amended by
deleting the words "Toroyaco 4 and the Xxxxx 3 xxxxx" and inserting in their
place the words "Xxxx 3 and the Xxxx 5 Xxxxx".
2. Amendment to Section 8.4 of the Finance Agreement. Section 8.4,
Insurance, of the Finance Agreement is amended by deleting subsection (b) and
inserting in its place the following subsection:
"(b) name OPIC as the loss payee or additional insured, as
its interest may appear, in all policies (except in the case of public
liability or other liability policies and except for policies covering vehicles
as long as the aggregate value of all vehicles covered by such policies does
not exceed $25,000.00):"
3. Miscellaneous.
(a) Governing Law. This Amendment No. 3 shall be construed
and enforced in accordance with the laws of the State of New York in the United
States of America without regard to its conflict of laws principles.
3
3
(b) Confirmation of Agreement. Except as amended hereby,
all of the terms of the Finance Agreement shall remain and continue in full
force and effect and are hereby confirmed in all respects. This Amendment No. 3
embodies the entire understanding of the parties hereto with respect to the
subject matter hereof, and supersedes all prior negotiations, understandings,
and agreements among them with respect thereto. The provisions of this
Amendment No. 3 may be waived, supplemented, or amended only by an instrument
n writing signed by duly authorized representatives of the Partnership and OPIC.
(c) Successors and Assigns. This Amendment No. 3 shall
inure to the benefit of and be binding upon the successors and assigns of the
parties hereto, provided that the Partnership shall not, without the prior
written consent of OPIC, assign or delegate all or any of its interest or
obligations hereunder.
(d) No Waiver. Each agreement, representation, and warranty
contained or referred to in this Amendment No. 3 shall survive any
investigation at any time made by OPIC and the disbursement of the Loan, and
shall terminate only when all amounts due or to become due under the Finance
Agreement and the Notes are paid in full. No course of dealing and no failure
or delay by OPIC in exercising any right, power, or remedy under the Finance
Agreement shall operate as a waiver thereof or otherwise prejudice OPIC's
rights powers, or remedies.
(e) Counterparts. This Amendment No. 3 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 instruments.
If you agree to the foregoing amendments, please sign the two
original execution copies of this Amendment No. 3 and return to OPIC one copy
thereof via facsimile and by mail. Upon OPIC's receipt by facsimile of such
executed copy, this Amendment No. 3 will constitute a binding agreement between
us amending the Finance Agreement effective as the date hereof.
Very truly yours,
OVERSEAS PRIVATE INVESTMENT CORPORATION
BY: /s/ XXXXXXX X. XXX
--------------------------------
Title: Vice President for Finance
--------------------------------
ACCEPTED AND AGREED TO
as of the date of this letter:
ARGOSY ENERGY INTERNATIONAL
By: Argosy Energy Incorporated
its general partner
By: /s/ ILLEGIBLE
----------------------------
Title: Vice President
----------------------------
