Four Party Agreement - Agreed Form 18Mar11

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AGREED FORM BANCO DE DESARROLLO ECONÓMICO Y SOCIAL DE VENEZUELA (BANDES), PETRÓLEOS DE VENEZUELA S.A., CHINA NATIONAL UNITED OIL CORPORATION AND CHINA DEVELOPMENT BANK CORPORATION CONFIRM THAT THIS VERSION OF THE FOUR PARTY AGREEMENT IS THE FORM AGREED IN THEIR MEETINGS IN BEIJING AND SINGAPORE FROM 2 MARCH TO 18 MARCH 2011 AND IS IN SUBSTANTIALLY AGREED FORM SUBJECT TO REVIEW BY LOCAL COUNSEL, INTERNAL APPROVALS OF EACH PARTY, AND ANY AMENDMENTS OF A MINOR OR TYPOGRAPHICAL NATURE. Ms Edmee Be
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  AGREED FORMBANCO DE DESARROLLO ECONÓMICO Y SOCIAL DE VENEZUELA (BANDES),PETRÓLEOS DE VENEZUELA S.A., CHINA NATIONAL UNITED OIL CORPORATIONAND CHINA DEVELOPMENT BANK CORPORATION CONFIRM THAT THISVERSION OF THE FOUR PARTY AGREEMENT IS THE FORM AGREED IN THEIR MEETINGS IN BEIJING AND SINGAPORE FROM 2 MARCH TO 18 MARCH 2011 ANDIS IN SUBSTANTIALLY AGREED FORM SUBJECT TO REVIEW BY LOCALCOUNSEL, INTERNAL APPROVALS OF EACH PARTY, AND ANY AMENDMENTS OFA MINOR OR TYPOGRAPHICAL NATURE.  Ms Edmee BetancourtPresidentFor and on behalf of  BANCO DE DESARROLLOECONÓMICO Y SOCIAL DEVENEZUELA (BANDES) Mr Tian YunhaiDeputy Director-GeneralFor and on behalf of   CHINA DEVELOPMENT BANK CORPORATION  Mr Asdrubal ChavezVice PresidentFor and on behalf of  PETRÓLEOS DE VENEZUELA S.A. Mr Zhao YongVice PresidentFor and on behalf of  CHINA NATIONAL UNITED OILCORPORATION………………………….. 2011BANCO DE DESARROLLO ECONÓMICO Y SOCIAL DE VENEZUELA (BANDES)PETRÓLEOS DE VENEZUELA S.A.CHINA NATIONAL UNITED OIL CORPORATION and CHINA DEVELOPMENT BANK CORPORATIONFOUR PARTY AGREEMENT D:\Project Tango - 18 Mar 2011\Four Party Agreement - Agreed Form 18Mar11.DOC 1  AGREED FORMTABLE OF CONTENTSClauseHeadingsPage 1. DEFINITIONS AND INTERPRETATION .................................................................42. PETROLEUM SALES AND PURCHASE CONTRACT ...........................................53. AGREEMENT AS TO PAYMENT ............................................................................54. DELIVERY AND SHIPMENT PROOF .....................................................................65. PAYMENT OF PROCEEDS .......................................................................................66. PROSPECTIVE DEBT SERVICE COVER RATIO ...................................................77. DEALINGS WITH RESPECT TO THE PETROLEUM SALES AND PURCHASECONTRACT ...............................................................................................88. REPRESENTATIONS AND WARRANTIES ............................................................99. ADDITIONAL PDVSA REPRESENTATIONS AND WARRANTIES ...................1010. PDVSA UNDERTAKINGS ....................................................................................1111. PURCHASER UNDERTAKINGS ..........................................................................1212. DURATION AND EFFECT OF THIS AGREEMENT ...........................................1213. NOTICES ................................................................................................................1214. GENERAL ...............................................................................................................1415. CONFIDENTIAL INFORMATION ........................................................................1416. ASSIGNMENT ........................................................................................................1517. WAIVER OF IMMUNITY ......................................................................................1518. GOVERNING LAW AND JURISDICTION ...........................................................16SCHEDULE 1.........................................................................................SIDE LETTER ...................................................................................................................18 D:\Project Tango - 18 Mar 2011\Four Party Agreement - Agreed Form 18Mar11.DOC 2  AGREED FORMTHIS AGREEMENT is made as a Deed on [●], 2011. AMONG: (1) BANCO DE DESARROLLO ECONÓMICO Y SOCIAL DE VENEZUELA(BANDES) , an entity organised and existing under the Laws of the Bolivarian Republic of Venezuela, and subject to the oversight of the Ministry of People's Power for Planning andFinance of the Bolivarian Republic of Venezuela, created by Presidential Decree No 1.274as published in Venezuelan Official Gazette No. 37.228 of June 27, 2001, as amended byPresidential Decree No. 6.214 dated July 15, 2008 as published in Venezuelan OfficialGazette No 5.890 on July 31, 2008, as further amended by the Law for the Partial Reformof Decree No. 6.214 as published in Venezuela Official Gazette No. 39.429 on May 21,2010 ( BANDES );(2) PETRÓLEOS DE VENEZUELA S.A. , a company registered with the First CommercialRegistry of the Judicial Circuit of the Capital District and Miranda State on September 15,1975, under No. 23, Volume 99-A-Pro., the latest version of its Articles of Incorporation/By-Laws evidenced through Presidential Decree No. 3.299, published inVenezuelan Official Gazette No. 38.081 of December 7, 2004 as amended by PresidentialDecree No. 6.234, published in Venezuelan Official Gazette No. 38.988 of August 6, 2008, being its charter of incorporation and by-laws restated as per document registered with theFirst Commercial Registry of the Judicial Circuit of the Capital District and Miranda Stateon January 5, 2009, under No. 42, Volume 1-A-Pro., File 73023, with principal offices of URB. La Campiña, Avda. Libertador, Calle el Empalme EDIF. Petróleos de Venezuela,Torre Oeste, Piso 7 Venezuela 1060 ( PDVSA );(3) CHINA NATIONAL UNITED OIL CORPORATION , a company duly incorporatedand validly existing under the laws of the People's Republic of China with its registeredoffice at No. 27, Chengfang Street, Xicheng District, Beijing, the People's Republic of China, 100033 ( Purchaser ); and(4) CHINA DEVELOPMENT BANK CORPORATION of No. 29, Fuchengmenwai Street,Xicheng District, Beijing, the People's Republic of China, 100037 ( CDB ). WHEREAS (A)CDB and BANDES have entered into a facility agreement dated on or about the date of thisAgreement pursuant to which CDB will provide a USD term loan facility of up toUS$4,000,000,000 in two tranches (the Facility ) to BANDES (the FacilityAgreement ).(B)BANDES shall use the proceeds of the Facility in accordance with the terms andconditions set out in the Facility Agreement.(C)PDVSA, acting on behalf of the Bolivarian Republic of Venezuela through the PDVSASubsidiary, and Purchaser will enter into a sales and purchase contract dated on or aboutthe date of this Agreement (the New Petroleum Sales and Purchase Contract ).(D)The sales proceeds generated under the New Petroleum Sales and Purchase Contract shall be applied towards satisfaction of the Borrower's obligations under the Facility Agreement. D:\Project Tango - 18 Mar 2011\Four Party Agreement - Agreed Form 18Mar11.DOC 3  AGREED FORMNOW IT IS HEREBY AGREED as follows: 1.DEFINITIONS AND INTERPRETATION 1.1 Definitions Unless otherwise defined herein, or the context requires otherwise, terms defined in theFacility Agreement shall have the same meaning when used in this Agreement. Inaddition: Export Goods means fuel and/or crude oil of Venezuelan origin as supplied byPDVSA, acting on behalf of the Bolivarian Republic of Venezuela through PDVSASubsidiary, in accordance with the Petroleum Sales and Purchase Contracts; First Supply Date means 19 February 2012; Party means a party to this Agreement and includes its successors in title, permittedassigns and transferees; PDVSA Subsidiary means PDVSA Petróleo S.A., a wholly owned subsidiary of PDVSA organised under the laws of Venezuela and acting as the seller under the NewPetroleum Sales and Purchase Contract; Termination Date means, the latest to occur of:(i)the Final Repayment Date; and(ii)the unconditional and irrevocable payment and discharge in full of all present andfuture liabilities of the Borrower under or in relation to the Facility Agreement(including without limitation all liabilities of the Borrower arising out of anyextension, variation, modification, reinstatement or novation of the FacilityAgreement).1.2 Interpretation Unless a contrary indication appears, any reference in this Agreement to:1.2.1 Agreement means this agreement, as may be amended from time to time;1.2.2Clauses are references to clauses of this Agreement;1.2.3the singular shall include references in the plural and vice versa;1.2.4the words include and including are to be construed without limitation;1.2.5a Person includes any person, firm, company, corporation, government, stateor agency of a state, or any association, trust or partnership (whether or nothaving separate legal personality) or two or more of the foregoing;1.2.6the winding-up of a Person also includes the amalgamation, reconstruction,reorganisation, administration, dissolution, liquidation, appointment of anyreceiver, liquidator or insolvency officer, merger or consolidation of that Person,and any equivalent or analogous procedure under the law of any jurisdiction inwhich that Person is incorporated, domiciled or resident or carries on business or has assets; D:\Project Tango - 18 Mar 2011\Four Party Agreement - Agreed Form 18Mar11.DOC 4
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