Exhibit 10.41
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LOAN AGREEMENT
AMONG
PRICESMART, INC.,
PSMT CARIBE, INC.,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ RICA, S.A.,
PRICSMARLANDCO, S.A.
AND
OVERSEAS PRIVATE INVESTMENT CORPORATION
DATED AS OF AUGUST 17, 2001
OPIC/515-2001-181-DI
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION......................................................................1
SECTION 1.01. DEFINITIONS AND INTERPRETATION........................................................1
ARTICLE II AMOUNT AND TERMS OF THE LOAN.......................................................................1
SECTION 2.01. AMOUNT AND DISBURSEMENT...............................................................1
SECTION 2.02. INTEREST; DEFAULT INTEREST............................................................2
SECTION 2.03. REPAYMENT OF THE LOAN.................................................................2
SECTION 2.04. VOLUNTARY PREPAYMENT..................................................................2
SECTION 2.05. MANDATORY PREPAYMENT..................................................................2
SECTION 2.06. LOAN FEES AND CANCELLATION............................................................3
SECTION 2.07. TAXES.................................................................................3
SECTION 2.08. MISCELLANEOUS.........................................................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................................................4
SECTION 3.01. REPRESENTATIONS AND WARRANTIES........................................................4
ARTICLE IV CONDITIONS PRECEDENT TO FIRST DISBURSEMENT.........................................................7
SECTION 4.01. AUTHORIZATION.........................................................................7
SECTION 4.02. FINANCING DOCUMENTS...................................................................8
SECTION 4.03. INVESTMENT............................................................................9
SECTION 4.04. CONSENTS..............................................................................9
SECTION 4.05. LAND..................................................................................9
SECTION 4.06. INSURANCE.............................................................................9
SECTION 4.07. ACCOUNTANTS...........................................................................9
SECTION 4.08. LEGAL OPINIONS.......................................................................10
SECTION 4.09. OTHER DOCUMENTS......................................................................10
SECTION 4.10. OTHER FINANCINGS.....................................................................10
ARTICLE V CONDITIONS PRECEDENT TO EACH DISBURSEMENT..........................................................10
SECTION 5.01. REPRESENTATIONS AND DEFAULTS.........................................................10
SECTION 5.02. CHANGE IN CIRCUMSTANCES..............................................................10
SECTION 5.03. DISBURSEMENT CERTIFICATE.............................................................10
SECTION 5.04. FINANCIAL INFORMATION AND PROJECT PROGRESS...........................................10
SECTION 5.05. PAYMENT OR REIMBURSEMENT OF EXPENSEs.................................................11
SECTION 5.06. CENTRAL BANK REGISTRATION............................................................11
SECTION 5.07. DEBT SERVICE RESERVE ACCOUNT.........................................................11
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ARTICLE VI AFFIRMATIVE COVENANTS.............................................................................11
SECTION 6.01. PROJECT COMPLETION...................................................................11
SECTION 6.02. COMPANY OPERATIONS...................................................................11
SECTION 6.03. MAINTENANCE OF RIGHTS AND COMPLIANCE WITH LAWS.......................................12
SECTION 6.04. MAINTENANCE OF INSURANCE.............................................................12
SECTION 6.05. ACCOUNTING AND FINANCIAL MANAGEMENT..................................................14
SECTION 6.06. FINANCIAL STATEMENTS AND OTHER INFORMATION...........................................14
SECTION 6.07. ACCESS TO RECORDS; INSPECTION; MEETINGS..............................................15
SECTION 6.08. NOTICE OF DEFAULT AND OTHER MATTERS..................................................15
SECTION 6.09. SECURITY DOCUMENTS...................................................................16
SECTION 6.10. FINANCIAL RATIOS; DEBT SERVICE RESERVE...............................................16
SECTION 6.11. ENVIRONMENTAL COMPLIANCE.............................................................16
SECTION 6.12. ERISA COMPLIANCE.....................................................................16
ARTICLE VII NEGATIVE COVENANTS...............................................................................16
SECTION 7.01. LIENS................................................................................16
SECTION 7.02. INDEBTEDNESS.........................................................................17
SECTION 7.03. NO ALTERATION OF AGREEMENTS..........................................................18
SECTION 7.04. RESTRICTED PAYMENTS..................................................................18
SECTION 7.05. CONDUCT OF BUSINESS WITH AFFILIATES..................................................18
SECTION 7.06. AFFILIATE PAYMENTS...................................................................19
SECTION 7.07 NO SALE OF ASSETS; MERGERS...........................................................19
SECTION 7.08. ORDINARY CONDUCT OF BUSINESS.........................................................19
SECTION 7.09. WORKER RIGHTS........................................................................20
SECTION 7.10. PENSION PLANS........................................................................21
ARTICLE VIII DEFAULTS AND REMEDIES...........................................................................21
SECTION 8.01. EVENTS OF DEFAULT....................................................................21
SECTION 8.02. REMEDIES UPON EVENT OF DEFAULT.......................................................23
SECTION 8.03. JURISDICTION AND CONSENT TO SUIT; WAIVERS............................................23
SECTION 8.04. JUDGMENT CURRENCY....................................................................24
SECTION 8.05. IMMUNITY.............................................................................24
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ARTICLE IX MISCELLANEOUS.....................................................................................25
SECTION 9.01. NOTICES..............................................................................25
SECTION 9.02. ENGLISH LANGUAGE.....................................................................25
SECTION 9.03. GOVERNING LAW........................................................................25
SECTION 9.04. SUCCESSION; ASSIGNMENT...............................................................25
SECTION 9.05. SURVIVAL OF AGREEMENTS...............................................................26
SECTION 9.06. INTEGRATION; AMENDMENTS..............................................................26
SECTION 9.07. SEVERABILITY.........................................................................26
SECTION 9.08. NO WAIVER............................................................................26
SECTION 9.09. WAIVER OF JURY TRIAL.................................................................26
SECTION 9.10. INDEMNITY............................................................................27
SECTION 9.11. FURTHER ASSURANCES...................................................................27
SECTION 9.12. COUNTERPARTS.........................................................................27
SECTION 9.13. WAIVER OF LITIGATION PAYMENTS........................................................28
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SCHEDULES
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X Definitions and Rules of Interpretation
1.01 Application
3.01(d)(i) Capitalization
3.01(d)(ii) Rights and Claims on Stock
3.01(d)(iii) Ownership Interests
3.01(j) Licenses, Trademarks, Patents
3.01(l)(i) Project Financial Plan
3.01(l)(ii) Corporate Financial Plan
4.02(a)(iii)(A) Liens in Favor of OPIC on Immovable and Movable Assets
(Costa Rica)
4.02(a)(iii)(B) Liens in Favor of OPIC on Movable Assets (Costa Rica)
4.04 Consents
6.04(a)(i) Insurance
7.01(c) Liens
7.02(e) Indebtedness
EXHIBITS
A Form of Promissory Note
B Form of Disbursement Request
C(i), (ii), (iii), Form of Authorization Certificate (pursuant to
and (iv) Section 4.01); C(i) with respect to PriceSmart, C(ii) with respect to
PSMT Caribe, C(iii) with respect to
PSMT Costa Rica, and C(iv) with respect to Costa Rica
Landco
D Form of Disbursement Certificate (pursuant to
Section 5.03)
E Form of Self-Monitoring Questionnaire
F Form of Annual Operations Report
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LOAN AGREEMENT
THIS
LOAN AGREEMENT, dated as of August 17, 2001 (this "AGREEMENT"), is
made among PriceSmart, Inc., a corporation organized and existing under the laws
of the State of Delaware, USA ("PRICESMART"), PSMT Caribe, Inc., a corporation
organized and existing under the laws of the Territory of the British Virgin
Islands ("PSMT CARIBE"), ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A., a corporation organized
and existing under the laws of Costa Rica ("PSMT COSTA RICA"), and
Pricsmarlandco, S.A., a corporation organized and existing under the laws of
Costa Rica ("COSTA RICA LANDCO"), each a "BORROWER" and, collectively, the
"BORROWERS", and OVERSEAS PRIVATE INVESTMENT CORPORATION, an agency of the
United States of America ("OPIC").
The Borrowers intend to implement the Project (as defined herein) and has
requested that OPIC provide a credit facility pursuant to Section 234(c) of the
Foreign Assistance Act of 1961, as amended, which OPIC is willing to do on the
terms and conditions set forth herein. Accordingly, in consideration of the
foregoing and of the agreements contained herein, it is agreed as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01 DEFINITIONS AND INTERPRETATION.
In this Agreement, (a) capitalized terms used but not otherwise defined
have the meanings set forth in the attached Schedule X, and (b) the rules of
interpretation set forth in Schedule X apply.
ARTICLE II
AMOUNT AND TERMS OF THE LOAN
SECTION 2.01 AMOUNT AND DISBURSEMENT.
(a) COMMITMENT. Subject to the terms and conditions hereof, OPIC agrees to
make, and the Borrowers agree to accept, a Loan in a principal amount not to
exceed $5,000,000.
(b) DISBURSEMENT; TERM. During the Commitment Period, the Borrowers may
request a Disbursement by delivering to OPIC a Disbursement Request
substantially in the form of Exhibit B not less than ten (10) Business Days
prior to the Closing Date. Each Disbursement shall be evidenced by a Note, dated
the Closing Date, in the principal amount of the Disbursement and maturing on
the Loan Maturity Date. The Loan shall not exceed the amount of the Commitment,
and Loan amounts repaid may not be reborrowed.
(c) NUMBER AND AMOUNT OF DISBURSEMENTS. There shall be no more than two
(2) Disbursements. Each Disbursement shall be at least $2,500,000.
(d) APPOINTMENT. Notwithstanding any provision in this Agreement, each of
PSMT Caribe, PSMT Costa Rica, and Costa Rica Landco irrevocably appoints and
designates PriceSmart as its attorney-in-fact for the purpose of receiving any
notice or request and further authorizes PriceSmart to make the request provided
in Section 2.01(b) or any other request permitted to be made by the Borrowers
under this Agreement, to receive all disbursements to be made hereunder, and to
take any other action required or permitted to be taken on its behalf under this
Agreement.
SECTION 2.02 INTEREST; DEFAULT INTEREST.
(a) INTEREST RATE. The Borrowers shall pay interest, semi-annually in
arrears, on the outstanding principal balance of each Note at the Interest Rate
and at the times specified in each Note.
(b) DEFAULT RATE. If the Borrowers fail to pay when due any amount due to
OPIC under any Financing Document, such unpaid amount shall bear interest at the
Default Rate from the date such amount is due until the date on which such
amount is paid in full.
SECTION 2.03 REPAYMENT OF THE LOAN.
The Borrowers shall repay the Loan in sixteen (16) approximately equal
semi-annual installments (collectively, the "PRINCIPAL INSTALLMENTS") on each
Payment Date, commencing on March 15, 2003 and ending no later than the Loan
Maturity Date.
SECTION 2.04 VOLUNTARY PREPAYMENT.
(a) On any Business Day following the last day of the Commitment Period,
the Borrowers may, upon thirty (30) Business Days' prior notice to OPIC, prepay
the Loan, in whole or in part, together with the payment to OPIC of (i) interest
accrued to the date of prepayment on the portion of the principal amount of each
Note that is to be prepaid, and (ii) a premium (the "PREPAYMENT PREMIUM"),
calculated as a percentage of the Loan amount prepaid, in accordance with the
following schedule:
YEAR FOLLOWING EXPIRATION OF COMMITMENT PERIOD PREPAYMENT PREMIUM
Year 1 3%
Year 2 2%
Year 3 1%
Year 4 and thereafter None
(b) All voluntary prepayments shall be applied to Principal Installments
in the inverse order of maturity.
(c) The minimum partial voluntary prepayment shall be $1,365,000, provided
however, if OPIC fully disburses the $5,000,000 loan made to PriceSmart, PSMT
Caribe, PriceSmart Dominicana, S.A. and Inmobiliaria PriceSmart, S.A. under
loan
agreement number OPIC/517-2001-181-DI, the minimum partial voluntary prepayment
hereunder shall be reduced to $682,500.
SECTION 2.05 MANDATORY PREPAYMENT.
(a) The Borrowers shall prepay the Loan in the event that and in the
amount by which:
(i) the aggregate amount of insurance proceeds from property loss or
damage claims, with respect to the pledged properties received by the Borrowers
during any Fiscal Year that is not applied or committed to the repair or
replacement of assets insured thereby within one hundred-eighty (180) days after
receipt by the Borrowers exceeds $500,000.
(ii) in any Fiscal Year (A) the aggregate amount of Restricted
Payments and/or Affiliate Payments exceeds (B) fifty percent (50%) of Net Income
for the preceding Fiscal Year.
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(b) The Borrowers shall prepay the Loan pro rata with any prepayments of
Indebtedness other than the IFC A Loan or the IFC C Loan by the Borrowers in any
Fiscal Year that is not refinanced in accordance with Section 7.04(b).
(c) The Borrowers shall simultaneously prepay the Loan pro rata with any
prepayment of the IFC A Loan or IFC C Loan.
Prepayments under this Section 2.05 shall have the same effect as if made
pursuant to Section 2.04, except that with respect to Section 2.05 no Prepayment
Premium shall be due.
SECTION 2.06 LOAN FEES AND CANCELLATION.
(a) COMMITMENT FEE. During the Commitment Period, the Borrowers shall pay
to OPIC, in arrears, on each Payment Date and on the last day of the Commitment
Period, a commitment fee (the "COMMITMENT FEE"), accruing on a daily basis at
the rate of one-half of one percent (0.50%) per annum on the difference,
calculated for each day during the Commitment Period, between (i) the amount of
the Commitment, and (ii) the aggregate amount of the Loan outstanding on such
day.
(b) CANCELLATION FEE. The Borrowers may cancel all or any part of the
Commitment at any time upon payment to OPIC of a cancellation fee (the
"CANCELLATION FEE") equal to one percent (1.0%) of the amount of the Commitment
canceled. Any part of the Commitment not disbursed at the end of the Commitment
Period or that is terminated for any reason shall be deemed to have been
canceled, and such Cancellation Fee shall be payable with respect thereto.
(c) FACILITY FEE. The Borrowers shall pay OPIC a facility fee (the
"FACILITY FEE") in the amount of $100,000 which shall be paid by the Borrowers
upon the execution and delivery of this Agreement.
(d) MAINTENANCE FEE. The Borrowers shall pay to OPIC an annual maintenance
fee (the "MAINTENANCE FEE") in the amount of $7,500 on the first Payment Date
following the first Disbursement and on each anniversary of such Payment Date
for so long as any portion of the Loan remains outstanding.
SECTION 2.07 TAXES.
(a) All sums payable by the Borrowers hereunder and under any other
Financing Document shall be paid in full, free of any deductions or withholdings
for any and all present and future Taxes. If the Borrowers are required by law
to deduct any Taxes from, or to withhold any Taxes in respect of, any amount
payable to OPIC hereunder or thereunder, then the Borrowers shall pay such
additional amount as may be necessary so that the actual amount received by OPIC
after such deductions or withholdings equals the full amount stated to be
payable under the Financing Documents.
(b) The Borrowers shall pay directly to all appropriate taxing authorities
any and all present and future Taxes with regard to any aspect of the
transactions contemplated by this Agreement or any other Financing Document,
except for any Taxes that any Borrower is contesting in good faith by
appropriate proceedings and for which adequate reserves have been set aside in
accordance with GAAP, PROVIDED, that the Borrowers hereby indemnify OPIC and
hold OPIC harmless from and against any and all liabilities, fees, or additional
expenses with respect to or resulting from any delay in paying, or omission to
pay, any such Taxes. Within thirty (30) days after payment by the Borrowers of
any Taxes, the Borrowers shall furnish OPIC with the original or a Certified
copy of the receipt evidencing payment thereof, together with any other
information OPIC may reasonably request. OPIC shall have the right, but
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not the obligation, to pay any Taxes and the Borrowers shall, upon OPIC's
demand, promptly reimburse OPIC in full for all such payments.
SECTION 2.08 MISCELLANEOUS.
(a) PAYMENT OR REIMBURSEMENT OF EXPENSES. Upon request, the Borrowers
shall promptly pay, or reimburse OPIC for, all of OPIC's reasonable
out-of-pocket costs and expenses incurred in connection with the negotiation,
preparation, execution, delivery, and implementation of the Financing Documents,
including (i) the fees and expenses of outside legal counsel and business
consultants, and (ii) the costs of communications, preparation of any documents,
authentication, registration, and recordation of any of the Financing Documents,
preparation of bound volumes of the Financing Documents for OPIC's use, and
termination of the Liens created pursuant to the Security Documents; PROVIDED,
HOWEVER, that, to the extent of any portion of the Facility Fee that has been
paid to OPIC, travel expenses incurred by OPIC shall be reimbursed out of such
Facility Fee. The Borrowers shall also reimburse OPIC, upon demand, for all
costs and expenses (including attorneys' fees and expenses, and the cost of
travel) incurred by OPIC (A) in preserving in full force and effect, or
enforcing its rights under, any of the Financing Documents or (B) in connection
with the modification, amendment, or waiver of any provision of any Financing
Document.
(b) CURRENCY AND PLACE OF PAYMENT. All payments to OPIC shall be made in
Dollars by wire transfer in immediately available funds without counterclaim,
offset, or deduction, formatted as follows via a U.S. domestic bank:
U.S. Treasury Department
ABA No. ▇▇▇▇-▇▇▇▇-▇ TREASNYC/CTR/BNF=AC71000001
OBI=OPIC Loan No. 515-2001-181-DI
(c) COMPUTATION OF INTEREST ON NOTES AND OF CERTAIN FEES. Except as
otherwise provided herein or in any Note, the Interest Rate, the Default Rate,
the Commitment Fee and the Cancellation Fee shall accrue on a daily basis and
shall be computed on the basis of 360-day years composed of twelve (12) thirty
(30)-day months.
(d) APPLICATION OF PAYMENTS TO OPIC. Except as otherwise provided herein
or in any Note, payments received by OPIC under any of the Financing Documents
shall be applied to amounts due to OPIC in such manner as OPIC in its sole
discretion may determine.
(e) OBLIGATIONS ARE JOINT AND SEVERAL. The Borrowers agree that all
obligations of the Borrowers are joint and several.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants to OPIC on its behalf and on behalf
of its Subsidiaries that:
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(a) EXISTENCE AND POWER. (i) It (A) is a corporation or limited liability
company, as appropriate, duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its organization; (B) is duly authorized
to do business in each jurisdiction in which it conducts business; and (C)
solely with respect to each Borrower and each Subsidiary that is a party to any
Borrower Document, has the power to own its properties, carry on its business,
borrow money, create Liens on its properties, and execute, deliver, and perform
each of the Borrower Documents.
(ii) Each of its Subsidiaries (A) is a corporation or limited
liability company, as appropriate, duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its organization; (B) is duly
organized to do business in each jurisdiction in which it conducts business; and
(C) has the power to own its properties, carry on its business, create Liens on
its properties.
(b) AUTHORITY. Its execution, delivery, and performance of each of the
Borrower Documents: (i) have been duly authorized by all necessary corporate
action; (ii) will not violate any applicable law, regulation, or ruling of any
governmental authority; (iii) will not breach, or result in the imposition of
any Lien upon any of its assets (except as permitted by Section 7.01) under, any
of its Charter Documents or any agreement or other requirement by which it or
any of its properties may be bound or affected and (iv) will not violate any
existing Indebtedness or other obligations of the Borrowers and their
Subsidiaries. Each of the Borrower Documents has been duly executed and
delivered by the Borrowers and is a legal, valid, and binding obligation of each
of the Borrowers, enforceable in accordance with its terms. Except for Consents
referred to in Section 4.04, no Consent of any Person is required in connection
with each of the Borrower's execution, delivery, performance, validity, or
enforceability of any of the Borrower Documents. Each of the Borrower's
obligations hereunder and under the Notes will rank not less than PARI PASSU
with all of the Borrowers' and Subsidiaries' other Indebtedness and obligations.
(c) FINANCIAL CONDITION. PriceSmart's audited Consolidated Financial
Statements for the fiscal year ending August 31, 2000, unaudited Consolidated
Financial Statements for the nine months ending May 31, 2001, and PSMT Caribe's
unaudited Consolidated Financial Statements for the nine months ending May 31,
2001, which have been furnished to OPIC, are complete and correct and fairly
present the financial condition and results of operations for the period then
ended. The Borrowers have no obligations, contingent or otherwise, of any kind
except as disclosed in such Consolidated and unconsolidated Financial
Statements. No change has occurred in PriceSmart's and PSMT Caribe's financial
condition or prospects from that set forth in such Consolidated or
unconsolidated Financial Statements that could have a Material Adverse Effect,
and, since the date thereof, no dividend, Restricted Payment or Affiliate
Payment has been declared or paid to any shareholders or any other Person.
(d) CAPITALIZATION. (i) Each Borrower's and each Subsidiaries' authorized
and issued capital stock is as set forth in Schedule 3.01(d)(i). All such
capital stock has been duly authorized and validly issued and is fully paid and
nonassessable. (ii) There are no rights or claims of any character that restrict
the transfer of, require the issuance of, or otherwise relate to any class of
each Borrower's or each Subsidiaries' capital stock, except as set forth in
Schedule 3.01(d)(ii). (iii) Each Borrower's and each Subsidiaries' capital stock
is owned beneficially and of record by the Persons in the percentage amounts set
forth next to their names in Schedule 3.01(d)(i). Except as set forth in
Schedule 3.01(d)(iii), none of the Borrowers and none of the Subsidiaries own or
otherwise control any voting stock of, or have any ownership interest in, any
other Person.
(e) LIENS. The Security Documents are, or upon filing and registration
will be, effective to create in favor of OPIC legal, valid, and enforceable
first priority Liens on all of the Borrowers' assets intended to be covered
thereby. None of the Borrowers nor any of the Subsidiaries owned and controlled
by a Borrower has outstanding, nor is it contractually bound to create, any Lien
on or with respect to any of its assets, rights, or revenues, except as
permitted by Section 7.01.
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(f) TAXES AND REPORTS. Each Borrower and each Subsidiary has filed all tax
returns and reports required by applicable law to be filed and has paid (or
adequately PROVIDED for) all Taxes due.
(g) DEFAULTS. No Default or Event of Default has occurred and is
continuing. Neither the Borrowers, nor the Subsidiaries, nor any other party is
in breach of any provision of any contract to which any of the Borrowers or any
of the Subsidiaries is a party, which breach could have a Material Adverse
Effect.
(h) LITIGATION. No action, suit, other legal or arbitral proceeding, or
investigation is pending by or before any domestic or foreign court or
governmental authority or in any arbitral or other forum or, to the best of its
knowledge after due inquiry, is threatened, that (i) relates to any of the
transactions contemplated by any Financing Document, or (ii) if adversely
determined, could have a Material Adverse Effect.
(i) COMPLIANCE WITH LAW; CORRUPT PRACTICES. (i) Each Borrower and each
Subsidiary is conducting its business in compliance with all applicable laws,
regulations, and authorizations of all relevant governmental authorities and in
compliance with its Charter Documents. Schedule 4.04 sets forth each Consent
necessary for the conduct of each Borrower's and each Subsidiaries' business,
each of which is in full force and effect.
(ii) Without limiting the effect of clause (i) above, each Borrower,
and each of its respective officers, directors, employees, and agents have
complied with all applicable Corrupt Practices Laws in obtaining any Consents in
respect of the Project and are otherwise conducting the Project in compliance
with applicable Corrupt Practices Laws. Each Borrower's internal management and
accounting practices and controls are adequate to ensure compliance with
applicable Corrupt Practices Laws.
(j) EASEMENTS, PROPERTY INTERESTS, UTILITIES, ETC. All easements,
leasehold, and other property interests and all utility and other services,
means of transportation, facilities, other materials, and other rights that are
or can reasonably be expected to be necessary for the conduct of the Borrowers'
and the Subsidiaries' business in accordance with applicable law and the
Financing Documents have been procured or are commercially available to the
Borrowers or the Subsidiaries. No material licenses, trademarks, patents, or
other similar agreements are necessary for the conduct of the Borrowers' and the
Subsidiaries' business, except as set forth in Schedule 3.01(j).
(k) ENVIRONMENTAL MATTERS. Each Borrower has duly complied, and its
business, operations, and assets, and the Project, are materially in compliance,
with the World Bank Guidelines and the provisions of all applicable
environmental, health, and safety laws, codes and ordinances, and all rules and
regulations promulgated thereunder, and OPIC's environmental policies. Each
Project Company (i) has been issued and will maintain all required Consents
relating to, (ii) has received no complaint, order, directive, claim, citation,
or notice by any governmental authority or any Person with respect to, and (iii)
has received no complaint or claim from any Person seeking damages,
contribution, indemnification, cost recovery, compensation, or injunctive relief
that in the Borrower's reasonable judgment could result in a Material Adverse
Effect with respect to air emissions, discharges to surface water or ground
water, noise emissions, solid or liquid waste disposal, the use, generation,
storage, transportation, or disposal of toxic or hazardous substances or wastes,
or other environmental, health, or safety matters.
(l) (i) PROJECT COST AND COMPLETION. The Borrowers' estimate of the total
cost of the Project (including contingencies) is the equivalent of $10,113,500
based on the financial plan set forth in Schedule 3.01(l)(i) (the "PROJECT
FINANCIAL PLAN").
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(ii) CORPORATE EXPANSION PLAN COST AND COMPLETION. The Borrowers'
estimate of the total cost of the Corporate Expansion Plan (including
contingencies) is the equivalent of $199,670,000 based on the financial plan set
forth in Schedule 3.01(l)(ii) (the "CORPORATE FINANCIAL PLAN"), and the
Borrowers' good faith estimate of the date on which the Corporate Expansion Plan
will be completed is August 31, 2002.
(m) DISCLOSURE. All documents, reports, and other written information that
have been furnished to OPIC are true and correct in all material respects and do
not contain any material misstatement of fact or omit to state a material fact
or any fact necessary to make the statements contained herein or therein not
materially misleading. There is no fact known to the Borrowers or the
Subsidiaries the existence of which could have a Material Adverse Effect. No
condition has arisen since the date of the Application that has or could have a
Material Adverse Effect.
(n) SUSPENSION AND DEBARMENT. No event has occurred and no condition
exists that is likely to result in the debarment or suspension of any of the
Borrowers from contracting with the U.S. Government or any agency or
instrumentality thereof, and none of the Borrowers is now or has been subject to
any such debarment or suspension.
(o) ERISA COMPLIANCE. PriceSmart is in compliance with all requirements of
ERISA relating to its Plan and has not ever sponsored, maintained, administered,
contributed to, participated in, or had an obligation to contribute to or any
liability under any Multiemployer Plan. PSMT Caribe, PSMT Costa Rica, and Costa
Rica Landco do not sponsor, maintain, administer, contribute to, participate in,
or have any obligation to contribute to or any liability under, any Plan, or any
Multiemployer Plan and PSMT Caribe, PSMT Costa Rica, and Costa Rica Landco have
never sponsored, maintained, administered, contributed to, participated in, or
had any obligation to contribute to or any liability under, any Plan, or any
Multiemployer Plan.
(p) INVESTMENT COMPANY ACT. None of the Borrowers nor any of their
Affiliates is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(q) MARGIN REGULATION. No part of the proceeds of the Loan will be used
for purchasing or carrying any margin stock with the meaning of Regulation U, or
for any purpose that violates any Regulation, of the Board of Governors of the
Federal Reserve System.
ARTICLE IV
CONDITIONS PRECEDENT TO FIRST DISBURSEMENT
Unless OPIC otherwise agrees in writing, the obligation of OPIC to make
the first Disbursement of the Loan is subject to the prior fulfillment, to
OPIC's satisfaction in its sole discretion, of the following conditions
precedent and to their continued fulfillment on the first Closing Date:
SECTION 4.01 AUTHORIZATION.
OPIC shall have received the certificate of an Authorized Officer of each
Borrower dated the Closing Date, substantially in the form designated for each
Borrower in Exhibits C(i) through (iv).
7
SECTION 4.02 FINANCING DOCUMENTS.
OPIC shall have received the following documents, each of which shall be
satisfactory to OPIC in form and substance, shall have been duly executed by the
parties thereto, and shall be in full force and effect in accordance with its
terms without default:
(a) duly executed originals (or, at OPIC's election, Certified copies)
of
(i) the IFC A
Loan Agreement and the IFC C
Loan Agreement; and
(ii) each of the following documents (the "LOAN DOCUMENTS"):
(A) this Agreement; and
(B) the Note issued in connection with the Disbursement;
provided that any Note executed after the date hereof in
connection with a subsequent Disbursement shall be included in
the definition of "Loan Documents"; and
(iii) each of the following documents (the "SECURITY DOCUMENTS"):
(A) a Guaranty Trust agreement creating and perfecting in
favor of OPIC a valid and enforceable, first-priority Lien on
all of the immovable assets and equipment and all movable
assets and equipment of the Borrowers in Costa Rica listed in
Schedule 4.02(a)(iii)(A);
(B) a Chattel Mortgage creating and perfecting in favor of
OPIC a valid and enforceable, first-priority Lien on all of
the movable assets and equipment of the Borrowers in Costa
Rica listed in Schedule 4.02(a)(iii)(B);
(C) documentation whereby the Borrowers assign in favor of
OPIC all of the rights, title and interest in and to all
insurance proceeds under the insurance policies insuring the
assets provided as security for OPIC under the Security
Documents;
(D) the PriceSmart Stock Pledge and Share Retention Agreement;
(E) the PSMT Caribe Costa Rica Stock Pledge and Share
Retention Agreement;
(F) the DSR Agreement;
(G) the Security Sharing Agreement between OPIC and the IFC,
if any; and
(H) all such other agreements, documents, or actions that, in
the opinion of counsel to OPIC, are necessary or advisable to
secure the payment of all amounts due or to become due
hereunder and under the Notes with valid, enforceable,
first-priority Liens on the assets described in the applicable
Security Documents.
8
Each Lien shall be of first priority and (i) to the extent it arises or attaches
under the Uniform Commercial Code of any jurisdiction in the U.S., shall be
perfected, and (ii) in all other cases, shall be enforceable against the
Borrowers and third parties (including any holder of a subsequently established
Lien). Each of the Security Documents shall be in full force and effect and
shall have been duly filed and registered or recorded in every jurisdiction in
which such filing and registration or recording is necessary to make valid and
effective the Liens intended to be created thereby, and the rights of OPIC
thereunder, and OPIC shall have received evidence satisfactory to it that such
filing and registration or recording has been made.
(b) intentionally omitted.
The Loan Documents and the Security Documents, together with any other
agreements or instruments entered into in connection with any of the foregoing
or pursuant to which the Loan is made, are collectively referred to herein as
the "FINANCING DOCUMENTS."
SECTION 4.03 INVESTMENT.
OPIC shall have received evidence satisfactory to it that (a) all equity
investments set forth in the Project Financial Plan and Corporate Financial Plan
have been made in cash in accordance with the Project Financial Plan and
Corporate Financial Plan, and (b) the legal and beneficial title to such equity
investment is held by the Persons and in the percentages set forth in Schedule
3.01(d)(i).
SECTION 4.04 CONSENTS.
OPIC shall have received Certified copies of any Consent (a) required by
the government of the Project Country, (b) obtained in compliance with Sections
3.01(b) or (i), and (c) which is, in the opinion of legal counsel to OPIC,
necessary or advisable, in each case, for (i) the Financing Documents, and the
payment of all amounts due or to become due with respect thereto, not to be
subject to any Taxes, (ii) the performance by each of the Borrowers of each of
the Borrower Documents, (iii) all such other approvals, permits, and consents
necessary for each of the Borrowers to carry out its business and the Project,
(iv) the registration of the Loan with the central bank of the Project Country
and the receipt of all foreign exchange consents necessary for the payment of
all amounts payable under the Financing Documents, and (v) the arrangements
contemplated by the DSR Agreement. Each such Consent is listed in Schedule 4.04.
SECTION 4.05 LAND.
OPIC shall have received evidence in form and substance satisfactory to it
that the Project Companies, either directly or indirectly, have acquired
satisfactory title to or leasehold or other rights in all real property
necessary for each Project Company's conduct of its business, subject only to
Liens permitted under Section 7.01.
SECTION 4.06 INSURANCE.
OPIC shall have received Certified copies of the certificates of insurance
required by and issued in accordance with Section 6.04, together with evidence
that such policies are in full force and effect without default.
SECTION 4.07 ACCOUNTANTS.
OPIC shall have received evidence that PriceSmart has irrevocably
instructed its accountants to communicate directly with OPIC and to deliver to
OPIC the financial information described in Section 6.06.
9
SECTION 4.08. LEGAL OPINIONS.
OPIC shall have received favorable written opinions, dated the Closing
Date, satisfactory to OPIC in form and substance, of (a) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, its legal counsel in Costa Rica, (b) ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, PriceSmart's
legal counsel, and (c) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, legal counsel for the Bank
of
New York with respect to the DSR Agreement.
SECTION 4.09 OTHER DOCUMENTS.
OPIC shall have received such other certificates, opinions, agreements,
and documents, each satisfactory to OPIC in form and substance, as it may
reasonably request.
SECTION 4.10 OTHER FINANCINGS.
OPIC shall have received evidence satisfactory to it that (a) the
Borrowers have requested the disbursement of the IFC A Loan simultaneously with
the Disbursement of the Loan, (b) the IFC has made its pro rata disbursement
under the IFC A Loan, and (c) the IFC C Loan has been fully disbursed.
ARTICLE V
CONDITIONS PRECEDENT TO EACH DISBURSEMENT
Unless OPIC otherwise agrees in writing, the obligation of OPIC to make
each Disbursement of the Loan (including the first Disbursement) is subject to
the prior fulfillment, to OPIC's satisfaction in its sole discretion, of the
following conditions precedent and to their continued fulfillment on each
Closing Date:
SECTION 5.01 REPRESENTATIONS AND DEFAULTS.
The representations and warranties of each of the Borrowers set forth in
this Agreement and in the other Financing Documents shall be true and correct in
all material respects on such Closing Date as if made on such Closing Date, and
on such Closing Date no Default or Event of Default shall have occurred and be
continuing.
SECTION 5.02 CHANGE IN CIRCUMSTANCES.
At the time of each Disbursement, nothing shall have occurred and be
continuing that could have a Material Adverse Effect.
SECTION 5.03 DISBURSEMENT CERTIFICATE.
PriceSmart shall have furnished OPIC with a certificate of an Authorized
Officer, dated the Closing Date, substantially in the form of Exhibit D.
SECTION 5.04 FINANCIAL INFORMATION AND PROJECT PROGRESS.
Not less that ten (10) Business Days before the Closing Date, OPIC shall
have received (a) all Consolidated and unconsolidated Financial Statements,
reports, and other information that the Borrowers, pursuant to Section 6.06,
would otherwise be required to furnish to OPIC on or before the Closing Date,
and (b) a report, satisfactory to OPIC in form and substance, setting forth in
reasonable detail the progress of the Corporate Expansion Plan, including the
items described in Section 6.06(c).
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SECTION 5.05 PAYMENT OR REIMBURSEMENT OF EXPENSES.
All Fees and other amounts due, payable, or reimbursable by the Borrowers
with respect to the Loan on or prior to the Closing Date shall have been paid in
full.
SECTION 5.06 CENTRAL BANK REGISTRATION.
OPIC shall have received evidence satisfactory to it, as may be required
by law with respect to each Disbursement, other than the first Disbursement,
that each such Disbursement has been duly registered or recorded with the
central bank of the Project Country, and that the Borrowers have taken all other
steps necessary to obtain any Consents necessary with respect to each such
Disbursement. OPIC shall have received copies of such certificates, legal
opinions, or other documents, satisfactory to OPIC in form and substance, as
OPIC shall have requested to evidence such Consents.
SECTION 5.07 DEBT SERVICE RESERVE ACCOUNT.
Debt Service Reserve Account shall be fully funded in accordance with the
DSR Agreement and evidence of this funding shall be provided to OPIC.
ARTICLE VI
AFFIRMATIVE COVENANTS
Unless OPIC otherwise agrees in writing, so long as the Commitment shall
remain outstanding and until all amounts due and to become due hereunder and
under the Notes shall have been paid, the Borrowers agree as follows:
SECTION 6.01 PROJECT COMPLETION.
The Borrowers shall, and shall cause the Subsidiaries to, (a) implement
the Corporate Expansion Plan promptly in accordance with sound engineering,
financial and business practices, (b) apply the proceeds of the Loan exclusively
to the Project, and (c) use their best efforts to cause the Corporate Expansion
Plan to be completed on or prior to August 31, 2002. If the Borrowers become
unable to achieve the completion undertakings set out in the preceding sentence,
or become unable to complete the Corporate Expansion Plan, or become unable to
meet their other obligations prior to completion of the Corporate Expansion
Plan, the Borrowers shall promptly so notify OPIC.
SECTION 6.02 COMPANY OPERATIONS.
Each of the Borrowers shall duly and punctually perform its obligations
under each of the Borrower Documents. Each of the Borrowers shall, and shall
cause the Subsidiaries to, conduct its operations in accordance with customary
commercial practice and on an arm's-length basis, with due diligence and
efficiency and under the supervision of qualified and experienced management.
Each of the Borrowers shall, and shall cause the Subsidiaries to, repair,
replace, and protect each of its assets so that its business can be conducted
properly at all times.
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SECTION 6.03 MAINTENANCE OF RIGHTS AND COMPLIANCE WITH LAWS.
Each of the Borrowers shall, and shall cause the Subsidiaries to, (a)
whenever in its power to do so, obtain, maintain in full force and effect, and
renew all Consents, leases and other rights in land, and franchises necessary
for the conduct of its business and the performance of its obligations hereunder
and under the other Financing Documents; (b) conduct its business in compliance
with all applicable laws and directives of governmental authorities having force
of law, including Corrupt Practices Laws; and (c) duly pay before they become
overdue all Taxes levied or imposed in any jurisdiction upon its property,
earnings, or business that, if not paid, could have a Material Adverse Effect,
and all Indebtedness and other liabilities in a timely manner in accordance with
normal business practices and with the terms governing the same, except amounts
being contested in good faith by appropriate proceedings diligently pursued for
which adequate reserves shall have been set aside in accordance with GAAP.
SECTION 6.04 MAINTENANCE OF INSURANCE.
(a) Each of the Borrowers and Subsidiaries shall:
(i) insure and keep insured, with financially sound and reputable
insurers, all its assets and business against all insurable losses to include
the insurance specified in Schedule 6.04(a)(i) and any insurance required by
law;
(ii) punctually pay any premium, commission and any other amounts
necessary for effecting and maintaining in force each insurance policy;
(iii) promptly notify the relevant insurer of any claim by any
Borrower or Subsidiary under any policy written by that insurer and diligently
pursue that claim;
(iv) comply with all warranties under each policy of insurance;
(v) not do or omit to do, or permit to be done or not done, anything
which might prejudice any Borrower's or Subsidiaries', or, where OPIC is a loss
payee or an additional named insured, OPIC's right to claim or recover under any
insurance policy; and
(vi) not vary, rescind, terminate, cancel or cause a material change
to insurance policy required to be maintained under this Agreement unless the
same is replaced by other insurance satisfying the requirements of this Section
6.04;
provided always that if at any time and for any reason any coverage required to
be maintained under this Agreement shall not be in full force and effect, then
OPIC shall, thereupon or at any time while the same is continuing, be entitled
(but have no such obligation) on its own behalf to procure that insurance at the
expense of the relevant Borrower or Subsidiary and to take all such steps to
minimize hazard as OPIC may consider expedient or necessary.
(b) Each insurance policy required to be obtained pursuant to this Section
shall be on terms and conditions acceptable to OPIC, and shall contain
provisions to the effect that:
(i) no policy can expire nor can it be cancelled or suspended by any
Borrower or any Subsidiary or the insurer for any reason (including failure to
renew the policy or to pay premium or any other amount) unless OPIC and, in the
case of expiration, or if cancellation or suspension is initiated by the
insurer, the relevant Borrower or Subsidiary receives at least thirty (30) days'
notice (or such lesser
12
period as OPIC may agree with respect to cancellation, suspension or termination
in the event of war and kindred peril) prior to the effective date of
termination, cancellation or suspension;
(ii) OPIC and all contractors working on any store site are named as
additional named insureds on all liability policies;
(iii) where relevant, all applicable provisions (except those
relating to limits of liability) shall operate as if they were a separate policy
covering each insured party; and
(iv) on every insurance policy on the Borrowers' assets which are
subject to the Security Documents and for business interruption, OPIC is named
as loss payee for any claim of, or any series of claims arising with respect to
the same event whose aggregate amount is, the equivalent of five hundred
thousand Dollars ($500,000) or more.
(c) (i) OPIC may remit the proceeds of any insurance paid to it to the
relevant Borrower to repair or replace the relevant damaged assets or if in the
reasonable judgement of OPIC such insurable event creates a Material Adverse
Effect then, at OPIC's discretion, OPIC may apply those proceeds towards any
amount payable to OPIC under this Agreement, including to repay or prepay all or
any part of the Loan in accordance with Section 2.05(a)(i); provided there shall
be no minimum amount or notice period or prepayment premium for any such
prepayment.
(ii) Each of the Borrowers shall use any insurance proceeds it
receives (whether from OPIC or directly from the insurers) for loss of or damage
to any asset solely to replace or repair that asset.
(d) Unless OPIC agrees otherwise, each of the Borrowers shall provide to
OPIC the following:
(i) as soon as possible after its occurrence, notice of any event
which entitles the relevant Borrower to claim for an aggregate amount exceeding
the equivalent of five hundred thousand Dollars ($500,000) under any one or more
insurance policies;
(ii) within thirty (30) days after receipt of any insurance policy
issued to any Borrower, a copy of that policy incorporating any loss payee
provisions required under Section 6.04(b)(iv) (unless that policy has already
been provided to OPIC pursuant to Section 4.06);
(iii) not less than ten (10) days prior to the expiry date of any
insurance policy (or, for insurance with multiple renewal dates, not less than
ten (10) days prior to the expiry date of the policy on the principal asset), a
certificate of renewal from the insurer, insurance broker or agent confirming
the renewal of that policy and the renewal period, the premium, the amounts
insured for each asset or item and any changes in terms or conditions from the
policy's issue date or last renewal, and confirmation from the insurer that
provisions naming OPIC as loss payee or additional named insured, as applicable
remain in effect;
(iv) such evidence of premium payment as OPIC may from time to time
reasonably request; and
(v) any other information or documents on each insurance policy as
OPIC reasonably requests from time to time.
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SECTION 6.05. ACCOUNTING AND FINANCIAL MANAGEMENT.
(a) The Borrowers shall (i) maintain adequate accounting, management
information and cost control systems, (ii) prepare their Consolidated and
unconsolidated Financial Statements in accordance with GAAP, (iii) engage Ernst
& Young, or other independent internationally recognized accountants
satisfactory to OPIC as their regular independent auditors, (iv) notify OPIC of
any change in such accountants and the reason therefor, and (v) instruct such
accountants to communicate directly with OPIC regarding the Borrowers' accounts
and operations. Without limiting the foregoing, each of the Borrowers shall, and
shall cause the Subsidiaries to, maintain the systems described in clause (i)
and related management and accounting policies in a manner adequate to ensure
compliance with applicable Corrupt Practices Laws.
(b) The Borrowers shall make arrangements satisfactory to OPIC for
overseeing the financial operations of the Borrowers and the Subsidiaries,
including their cash management, accounting, and financial reporting, and for
overseeing the Borrowers' relationship with their lenders and independent
accountants, which arrangements shall include employing a chief financial
officer to oversee the financial operations of the Borrowers and Subsidiaries.
SECTION 6.06 FINANCIAL STATEMENTS AND OTHER INFORMATION.
At its cost, PriceSmart shall furnish to OPIC each of the following:
(a) Within forty-five (45) days after the end of each fiscal quarter
(including the fourth fiscal quarter) of each Fiscal Year, PriceSmart's and PSMT
Caribe's respective unaudited Consolidated and unconsolidated Financial
Statements and a comparison between such Financial Statements and the
projections for such fiscal quarter furnished pursuant to Section 6.06(e), all
certified by the chief financial officer of PriceSmart and PSMT Caribe as being
complete and correct, together with such officer's certificate (i) that his or
her review has not disclosed the existence any Default or Event of Default, or,
if any such Default or Event of Default then exists, specifying the nature and
period of existence thereof and what action PriceSmart or PSMT Caribe has taken
or proposes to take with respect thereto, and (ii) demonstrating in reasonable
detail PriceSmart's compliance with the ratios set forth in Sections 6.10(a) and
(b) and the basis for such calculations;
(b) Within ninety (90) days after the end of each Fiscal Year,
PriceSmart's audited Consolidated Financial Statements and PSMT Caribe's
unaudited Consolidated Financial Statements, together with a certificate by the
independent accountants reporting thereon (i) describing briefly the scope of
their examination (which shall include a review of the relevant terms of this
Agreement) and certifying whether their examination has disclosed the existence
of any Default or Event of Default and, if so, specifying the nature and period
of existence thereof, and (ii) demonstrating in reasonable detail PriceSmart's
compliance with the ratios set forth in Sections 6.10(a) and (b) and the basis
for such calculations;
(c) (i) Until the Corporate Expansion Plan is completed, within forty-five
(45) days after the end of each fiscal quarter, a report, Certified by an
Authorized Officer of PriceSmart, setting forth in reasonable detail the
progress of the Corporate Expansion Plan, including (A) the financial plan for
the remaining membership-shopping warehouse stores to be built and brought into
operation, (B) expenditures of funds, (C) estimated future costs, (D) unexpended
funds available to the Borrowers, (E) the progress and percentage of completion
of the major phases of Corporate Expansion Plan construction and the total
construction work of the Corporate Expansion Plan, (F) the acquisition of
fixtures and equipment, and (G) such other information with respect to the
Corporate Expansion Plan as OPIC may reasonably request from time to time; and
14
(ii) After the Corporate Expansion Plan is completed, within
forty-five (45) days after the end of each fiscal quarter, a report, Certified
by an Authorized Officer of PriceSmart, setting forth in reasonable detail any
continued expansion of PriceSmart's business, including (A) the planned addition
of any new membership-shopping warehouse stores, including the location,
expected construction completion date and opening date of such
membership-shopping warehouse store, (B) the financial plan for each such
warehouse store, including the source, amount and term of any new Indebtedness,
and the identity of local or other investors, if any, (C) the addition of new
licensees, (D) identification of and explanation for the significant and
on-going deterioration in the financial or operating performance of any
membership-shopping warehouse store, and (E) such other information with respect
to PriceSmart's continued expansion as OPIC may reasonably request from time to
time;
(d) Within forty-five (45) days after the end of each Fiscal Year, a
report, Certified by an Authorized Officer of PriceSmart, setting forth in
reasonable detail all Affiliate transactions excluding transactions (i) for
inventory purchase by PriceSmart and sold to any Affiliate for commercial resale
or (ii) inventory sold by one Affiliate to another Affiliate for commercial
resale.
(e) Not later than thirty (30) days prior to the beginning of each Fiscal
Year, an annual operating forecast for PriceSmart and PSMT Caribe on an
unconsolidated and Consolidated Basis, including their respective quarterly
projections for such Fiscal Year, together with a statement of the assumptions
on which such forecast is based;
(f) Within ninety (90) days after the end of each Fiscal Year, the
Self-Monitoring Questionnaire, Certified by an Authorized Officer of PriceSmart
as true and complete;
(g) Copies of all other annual or interim reports and management letters
submitted to PriceSmart and PSMT Caribe by its independent accountants, and such
other information and data with respect to PriceSmart's and PSMT Caribe's
operations, condition (financial or otherwise), assets, and prospects (including
supporting information as to compliance with this Agreement) as OPIC may
reasonably request from time to time; and
(h) Within forty-five (45) days after the end of each Fiscal Year, an
annual review of operations, such report shall be substantially in the form of
Exhibit F and acceptable to OPIC.
SECTION 6.07 ACCESS TO RECORDS; INSPECTION; MEETINGS.
The Borrowers shall, and shall cause the Subsidiaries to, upon OPIC's
request, give, or cause to be given, to any representatives of OPIC access
during normal business hours to, and permit them to (a) examine, copy, and make
extracts from, any and all records and documents in the possession or subject to
the control of the Borrowers or the Subsidiaries relating to their respective
operations and financial affairs, and (b) inspect any of their respective
facilities or properties. If OPIC so requests, the Borrowers shall give OPIC not
less than fifteen (15) days' notice of, and shall permit an OPIC representative
to attend, each meeting of the Borrowers' shareholders and of its directors.
SECTION 6.08 NOTICE OF DEFAULT AND OTHER MATTERS.
The Borrowers shall notify OPIC immediately of (a) the occurrence of any
Default or Event of Default, and (b) any legal or arbitral proceedings against
any Borrower or any Subsidiary that involve claims aggregating more than the
equivalent of $3,000,000.
15
SECTION 6.09 SECURITY DOCUMENTS.
Each of the Borrowers, at its own cost, shall take all actions necessary
to maintain each of the Security Documents in full force and effect and
enforceable in accordance with its terms, including all (a) filings and
recordations, (b) payment of fees and other charges, (c) issuing supplemental
documentation and continuation statements, (d) discharging of all Liens or other
claims adversely affecting the rights of OPIC in the property subject to any
Security Document, (e) publishing or otherwise delivering notice to third
parties, and (f) depositing title documents.
SECTION 6.10 FINANCIAL RATIOS; DEBT SERVICE RESERVE.
(a) PriceSmart shall at all times maintain the following financial ratios
on a Consolidated Basis: (i) the ratio of Adjusted Indebtedness to Tangible Net
Worth shall not exceed 1 to 1; and (ii) the ratio of Current Assets to Current
Liabilities shall not be less than 1.2 to 1.
(b) PriceSmart shall at all times maintain, on a Consolidated Basis, for
each four (4) consecutive fiscal quarters, taken as a single accounting period,
(i) a ratio of Cash Flow to Debt Service of not less than 1.3 to 1; and (ii) a
ratio of Cash Flow to Projected Debt Service (determined as of the last day of
such period) of not less than 1.3 to 1.
(c) PriceSmart shall at all times maintain funds or assets on deposit in
the Debt Service Reserve Account with a market value at least equal to the Debt
Service Reserve Requirement.
SECTION 6.11 ENVIRONMENTAL COMPLIANCE.
The Project Companies shall comply with, and shall conduct their business,
operations, assets, equipment, property, leaseholds, and other facilities in
compliance with, the provisions of the World Bank Guidelines, all applicable
environmental, health, and safety laws, codes and ordinances and all rules and
regulations promulgated thereunder, and OPIC's environmental policies. The
Project Companies shall maintain all required Consents relating to: (a) air
emissions; (b) discharges to surface water or ground water; (c) noise emissions;
(d) solid or liquid waste disposal; (e) the use, generation, storage,
transportation, or disposal of toxic or hazardous substances or wastes; and (f)
other environmental, health, or safety matters.
SECTION 6.12 ERISA COMPLIANCE.
PriceSmart shall comply with all requirements of ERISA relating to its
Plan.
ARTICLE VII
NEGATIVE COVENANTS
Unless OPIC otherwise agrees in writing, so long as the Commitment shall
remain outstanding and until all amounts due and to become due hereunder and
under the Notes shall have been paid in full, the Borrowers agree as follows:
SECTION 7.01 LIENS.
The Borrowers shall not, and shall cause the Subsidiaries not to, directly
or indirectly, create, assume, or otherwise permit to exist any Lien on any of
their assets, whether now owned or hereafter acquired, or in any proceeds or
income therefrom, except for:
16
(a) the Liens created under the Security Documents or pursuant to any
other Financing Documents;
(b) tax, mechanic's, worker's or other like Liens arising by mandatory
provision of law securing obligations incurred in the ordinary course of
business that are not yet overdue or that are being contested or litigated in
good faith;
(c) existing Liens as of the date of this Agreement as listed in Schedule
7.01;
(d) Liens with respect to permitted Indebtedness under Section 7.02, to
the extent that Section 7.02 permits secured Indebtedness; and
(e) Liens related to purchase money obligations incurred in the ordinary
course of business so long as such Liens only attach to property related to such
purchase money obligations.
SECTION 7.02 INDEBTEDNESS.
The Borrowers shall not, and shall cause the Subsidiaries not to, incur,
assume, guarantee, or permit to exist, or otherwise become liable for
Indebtedness except:
(a) the Loan;
(b) Indebtedness fully subordinated to the Loan on terms satisfactory
to OPIC;
(c) Indebtedness consisting of trade credit from suppliers of goods or
services incurred in the ordinary course of business on terms requiring payment
in full in not more than one hundred and twenty (120) days;
(d) Indebtedness consisting of unsecured short-term credit facilities from
commercial banks requiring repayment in not more than three hundred and sixty
(360) days;
(e) existing Indebtedness as of the date of this Agreement as listed in
Schedule 7.02;
(f) Indebtedness obtained to replace any existing Indebtedness, but only
to the extent such new Indebtedness is on terms and conditions (as to interest
rate, other costs and tenor) at least as favorable to the Borrowers as those of
the Indebtedness being replaced in accordance with Section 7.04(b);
(g) for the purposes of hedging business risks and exposures only, the
following types of Derivative Transactions entered into by the Borrowers:
(i) forward foreign exchange contracts (including non-deliverable
forward foreign exchange contracts);
(ii) cross-currency swaps; and
(iii) interest-rate swaps; and
(h) Long-term Indebtedness
17
PROVIDED, that in no event shall any Indebtedness described in (i) clauses (c),
(d), (e), (f) and (g) above, when incurred, cause PriceSmart to fail to meet the
financial ratios set forth in Section 6.10; and (ii) clause (h) above, when
incurred, cause PriceSmart to fail to meet, on a Consolidated Basis, (A) a
Long-term Indebtedness to Tangible Net Worth ratio not to exceed 1 to 1 and (B)
the financial ratios set forth in Section 6.10(b).
SECTION 7.03 NO ALTERATION OF AGREEMENTS.
The Borrowers shall not terminate, amend, grant any waiver of, or assign
any of the respective duties or obligations under, any provision of any of the
Financing Documents (other than amendments or waivers, either to correct
manifest error or which are of a formal, minor, or technical nature and do not
change materially any Person's rights or obligations, PROVIDED, that the
Borrowers shall promptly give OPIC notice of such amendment or waiver).
SECTION 7.04 RESTRICTED PAYMENTS.
The Borrowers or Subsidiaries shall not:
(a) make, or incur any obligation to make, any Restricted Payment until
all amounts due or to become due hereunder or under the Notes have been paid in
full; PROVIDED, HOWEVER, that after (i) the Corporate Expansion Plan is
completed and (ii) the Borrowers have made at least one Principal Installment,
the Borrowers and Subsidiaries may (subject to the mandatory prepayment
provisions set forth in Section 2.05(a)(ii)) make Restricted Payments if, but
only if, no earlier than sixty (60) days nor later than thirty (30) days prior
to doing so, the Borrowers certify to OPIC in writing that after giving effect
to each such Restricted Payment, (A) no Default or Event of Default shall have
occurred and be continuing, and (B) PriceSmart shall be in compliance with the
financial ratios set forth in Section 6.10; and
(b) prepay (whether voluntarily or involuntarily) or repurchase any
Indebtedness (other than the Indebtedness contemplated to be paid with the
proceeds of the IFC A Loan) pursuant to any provision of any agreement or note
with respect to that Indebtedness unless:
(i) that Indebtedness is refinanced using new Indebtedness on terms
and conditions (as to interest rate, other costs and tenor) at least as
favorable to the Borrowers as those of the Indebtedness being refinanced; or
(ii) the Borrowers give OPIC at least thirty (30) days' advance
notice of their intention to make the proposed prepayment and, if OPIC so
requires, the Borrowers contemporaneously prepay a proportion of the Loan
equivalent to the proportion of the part of the Indebtedness being prepaid, such
prepayment to be made in accordance with the provisions of Section 2.04 except
that there shall be no minimum amount, prepayment premium or advance notice
period for that prepayment.
SECTION 7.05 CONDUCT OF BUSINESS WITH AFFILIATES.
The Borrowers shall not, and shall cause the Subsidiaries not to, conduct
any business with, or enter into any business transaction involving, any
Affiliate, except on an arm's-length basis and subject to the reporting
requirement set forth in Section 6.06(d).
18
SECTION 7.06 AFFILIATE PAYMENTS.
Except for amounts permitted to be paid under Section 7.04, no Borrower or
any Subsidiary shall make, or incur or assume any obligation to make, any
Affiliate Payment; PROVIDED, HOWEVER, that the Borrowers and Subsidiaries may
(subject to Section 7.04 and the mandatory prepayment provisions set forth in
Section 2.05(a)(ii)) make such Affiliate Payments if, but only if, after giving
effect to each such Affiliate Payment, (a) no Default or Event of Default shall
have occurred and be continuing, and (b) PriceSmart shall be in compliance with
the financial ratios set forth in Section 6.10.
SECTION 7.07 NO SALE OF ASSETS; MERGERS.
Each of the Borrowers shall not, and shall cause the Subsidiaries not to:
(a) sell, assign, convey, lease, or otherwise dispose of all or a material
portion of its assets, other than inventory, and except for (i) the replacement
of a capital asset with a capital asset of equal or greater value; (ii) fixed
assets of the Borrowers with an aggregate value of less than ten percent (10%)
of the existing net fixed assets in any Fiscal Year; and (iii) assets that have
become worn out or obsolete and are replaced or upgraded or that are no longer
required for the purposes of carrying out the Corporate Expansion Plan, in each
case in the ordinary course of business and in a manner consistent with the
Financing Documents;
(b) dissolve, liquidate, or otherwise cease to do business; or
(c) merge, spin-off, reorganize or consolidate with any Person.
SECTION 7.08 ORDINARY CONDUCT OF BUSINESS.
Each of the Borrowers shall not, and shall cause each of the Subsidiaries
not to:
(a) change its Charter Documents in a manner that would be inconsistent
with the provisions of any of the Financing Documents;
(b) change its name or take any action that might adversely affect the
Liens created by the Security Documents;
(c) enter into any partnership, profit-sharing or royalty agreement, or
other similar arrangement whereby its income or profits are, or might be, shared
with any other Person;
(d) create any subsidiaries, except for: (A) the subsidiaries disclosed in
Schedule 3.01(d)(i); (B) subsidiaries formed for the purposes of the Corporate
Expansion Plan; and (C) subsidiaries formed by PriceSmart in similar lines of
business as the Borrowers;
(e) except for Back-to-Back Loans, make or permit to exist any loans or
advances to, or assume, guarantee, endorse, or otherwise become directly or
contingently liable for, any obligation, Indebtedness of, any Person, other than
the endorsement of negotiable instruments for collection in the ordinary course
of business and the prudent investment of idle surplus funds in readily
marketable Dollar-denominated debt securities;
(f) enter into any Derivative Transactions other than those permitted
pursuant to Section 7.02(g);
19
(g) fail to maintain its corporate existence and its right to carry on its
operations;
(h) adopt, establish, maintain, sponsor, administer, contribute to,
participate in, or incur any liability under or obligation to contribute to, any
Plan or incur any liability to provide post-retirement welfare benefits, except
such liability to provide post-retirement welfare benefits as may be required by
applicable law or other non-material post-retirement welfare benefits;
(i) allow the Central Office Expenditures (before Charge-backs) to exceed
nineteen million two hundred thousand Dollars ($19,200,000) or two and one-half
per cent (2.5%) of sales, whichever is greater, during the life of the Loan;
(j) change the nature or scope of the Project, the Corporate Expansion
Plan or change the nature of its business or operations;
(k) terminate, amend or grant any waiver with respect to any provision of:
(i) the IFC A
Loan Agreement and the IFC C
Loan Agreement; or
(ii) any document evidencing or securing any other senior loan set
forth under the Corporate Financial Plan; and
(l) terminate, waive or materially amend any license agreements,
trademarks or similar agreements set forth in Schedule 3.01(j).
SECTION 7.09 WORKER RIGHTS.
The Project Companies shall not take any action to prevent their
respective employees from lawfully exercising their right of association and
their right to organize and bargain collectively. The Project Companies further
agree 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 the Project Companies shall not use
forced labor. The Project Companies also agree that the Project shall employ no
persons under the age of 18 for work involving hazardous activity (the "WORKER
RIGHTS REQUIREMENTS"). The Project Companies shall require all Engineering,
Procurement and Construction (EPC), Operation and Maintenance (O&M) contractors
and subcontractors and each of its respective Project contractors to comply with
the Worker Rights Requirements with respect to employees of such Project
contractors, and with respect to employees of their respective subcontractors,
that are performing work under contracts between the Project Companies and such
Project contractors ("PROJECT CONTRACTS") in the Project Country. In the event
that information concerning non-compliance or potential non-compliance with the
Worker Rights Requirements with respect to employees under any Project Contract
comes to the attention of a responsible officer of the Project Companies, the
Project Companies shall give prompt notice thereof to OPIC. The Project
Companies (a) shall use best efforts to cause the relevant contractor to cure
such non-compliance and (b) shall terminate such contractor's Project Contract
unless such non-compliance is cured within ninety (90) days after such notice.
Notwithstanding the foregoing, the Project Companies shall not be responsible
for non-compliance with the Worker Rights Requirements resulting from actions of
a government.
20
SECTION 7.10 PENSION PLANS.
PriceSmart shall not (a) establish a Defined Benefit Plan, (b) permit any
condition to exist in connection with its Plan which might constitute grounds
for the PBGC to institute proceedings to have such Pension Plan terminated or a
trustee appointed to administer such Plan, (c) engage in, or permit to exist or
occur, any condition, event or transaction with respect to its Plan which could
result in the incurrence by PriceSmart of any liability, fine, or penalty which
could reasonably be expected to have a Material Adverse Effect, or (d) establish
or participate in a Multiemployer Plan.
No Subsidiary of PriceSmart shall establish a Plan or establish or
participate in a Multiemployer Plan.
ARTICLE VIII
DEFAULTS AND REMEDIES
SECTION 8.01 EVENTS OF DEFAULT.
Each of the following events or circumstances shall constitute an "EVENT
OF DEFAULT":
(a) PAYMENT DEFAULT. The Borrowers fail to pay when due any amount payable
to OPIC pursuant to this Agreement, any Note, or any other Financing Document.
(b) CROSS-DEFAULT. Any Borrower or Subsidiary fails to pay any principal
of or interest on any of its Indebtedness (including any premium or fee thereon,
but excluding Indebtedness evidenced by this Agreement and the Notes) when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) and such failure continues beyond the applicable grace period, if
any; or a default occurs under any agreement or instrument evidencing, or under
which the Borrowers or Subsidiaries have outstanding at the time, any such
Indebtedness and such default continues beyond the applicable grace period, if
any, if the effect of such default is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness
shall be declared to be due and payable, or required to be prepaid, prior to the
stated maturity thereof as a result of a default or other similar adverse event.
(c) REPRESENTATION DEFAULT. Any representation or warranty made by a
Borrower, on behalf of itself or a Subsidiary, or the Borrowers, on behalf of
themselves or their Subsidiaries, in any Financing Document proves to have been
incorrect in any material respect when made or deemed made.
(d) COVENANT DEFAULT. A Borrower fails to comply with any covenant or
provision set forth in Section 6.08, Section 6.09, Section 6.10, or Article VII.
(e) OTHER OBLIGATION DEFAULT. Any Borrower fails to perform any of its
obligations under any agreement pursuant to which there is outstanding any
Indebtedness, and any such failure continues for more than any applicable grace
period, if any, or any such Indebtedness becomes prematurely due and payable or
is place on demand;
(f) APPROVALS DEFAULT. Any Consent necessary for the execution, delivery,
or performance of any of the Financing Documents or for the validity or
enforceability of any of the Borrowers' obligations under any of the Financing
Documents is not effected or given or is withdrawn or ceases to remain in full
force and effect.
21
(g) OBLIGATION DEFAULT. A Borrower fails to comply with or perform any
agreement or covenant contained herein other than those referred to in Sections
8.01(a), (b), (c), (d), (e) or (f) above and such failure continues for thirty
(30) days after the occurrence thereof;
(h) AGREEMENT DEFAULT. Any Financing Document at any time for any reason
ceases to be in full force and effect, or is declared to be void or is
repudiated, or the validity or enforceability thereof is at any time contested
by the Borrower, or, in the case of a Security Document, ceases to give or
provide the respective Liens, rights, titles, remedies, powers, or privileges
intended to be created thereby.
(i) EXPROPRIATION DEFAULT. Any governmental authority condemns,
nationalizes, seizes, or otherwise expropriates any substantial portion of the
assets or the capital stock of any Borrower or takes any action that would
prevent any Borrower from carrying on any material part of its business or
operations.
(j) OTHER AGREEMENTS DEFAULT. The Borrowers or any other party fail to
comply with or perform any of its material obligations or undertakings set forth
in any Financing Document (other than this Agreement or the Notes) and such
failure continues beyond the applicable grace period, if any.
(k) VOLUNTARY BANKRUPTCY DEFAULT. Any of the Borrowers or any of the
Subsidiaries, (i) request a moratorium or suspension of payment of debts from
any court, (ii) applies for, or consents to the appointment of, a receiver,
trustee, custodian, intervenor, or liquidator of itself or of all or a
substantial part of its assets, (iii) files a voluntary petition in bankruptcy,
admits in writing that it is unable to pay its debts as they become due, or
generally fails to pay its debts as they become due, (iv) makes a general
assignment for the benefit of creditors, (v) files a petition or answer seeking
reorganization or an arrangement with creditors or to take advantage of any
bankruptcy, reorganization, or insolvency laws, (vi) files an answer admitting
the material allegations of, or consents to, or defaults in answering, a
petition filed against it in any bankruptcy, reorganization, or insolvency
proceeding where such action or failure to act will result in a determination of
bankruptcy or insolvency against it, or (vii) takes any corporate action to
authorize any of the foregoing.
(l) INVOLUNTARY BANKRUPTCY DEFAULT. Without its application, approval, or
consent, a proceeding is instituted in any court of competent jurisdiction or by
or before any government or governmental agency of competent jurisdiction,
seeking in respect of any of the Borrowers, or any of the Subsidiaries:
adjudication in bankruptcy, reorganization, dissolution, winding up,
liquidation, a composition or arrangement with creditors, a readjustment of
Indebtedness, the appointment of a trustee, receiver, liquidator, or the like of
it or of all or any substantial part of its property or assets, or other like
relief in respect of it under any bankruptcy, reorganization, or insolvency law;
and, if such proceeding is being contested by it in good faith, the same
continues undismissed for a period of sixty (60) days.
(m) JUDGMENT DEFAULT. A final judgment or litigation settlement for the
payment of money in an aggregate amount in excess of $500,000 or its equivalent
in another currency is rendered against, or entered into by, any of the
Borrowers, and such judgment is not satisfied or discharged within sixty (60)
days of entry.
(n) ADVERSE EFFECT DEFAULT. Any event shall have occurred that, in the
reasonable judgment of OPIC, could have a Material Adverse Effect.
22
(o) POLITICAL VIOLENCE DEFAULT. Any acts of war (whether declared or
undeclared), revolution, insurrection, civil war, strife of a lesser degree,
terrorism, or sabotage occur that cause the destruction, disappearance, or
physical damage of a substantial portion of the assets of the Borrowers or
prevent the Borrowers from carrying on any material part of their business or
operations.
(p) OWNERSHIP BY U.S. PERSONS. U.S. Persons acceptable to OPIC shall cease
to retain an ultimate beneficial ownership interest in the Borrowers of at least
twenty-five percent (25%).
(q) CHANGE OF CONTROL DEFAULT. PriceSmart ceases to retain management
control of any Subsidiary.
SECTION 8.02 REMEDIES UPON EVENT OF DEFAULT.
(a) Except as otherwise provided in Section 8.02(b), if any Event of
Default has occurred and is continuing, OPIC may at any time do any one or more
of the following: (i) suspend or terminate the Commitment, (ii) declare, by
written demand for payment, any portion or all of the Loan to be due and
payable, whereupon such portion or all of the Loan, together with interest
accrued thereon and all other amounts due under the Financing Documents, shall
immediately mature and become due and payable, without any other presentment,
demand, diligence, protest, notice of acceleration, or other notice of any kind,
all of which the Borrower hereby expressly waives, or (iii) without notice of
default or demand, proceed to protect and enforce its rights and remedies by
appropriate proceedings or actions, whether for damages or the specific
performance of any provision of any Financing Document, or in aid of the
exercise of any power granted in any Financing Document, or by law, or may
proceed to enforce the payment of any Note.
(b) Upon the occurrence of an Event of Default referred to in Sections
8.01(k) or (l), (i) the Commitment shall automatically terminate, and (ii) the
Loan, together with interest accrued thereon and all other amounts due under the
Financing Documents, shall immediately mature and become due and payable,
without any other presentment, demand, diligence, protest, notice of
acceleration, or other notice or action of any kind, all of which the Borrowers
hereby expressly waive.
SECTION 8.03 JURISDICTION AND CONSENT TO SUIT; WAIVERS.
Each of the Borrowers hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and any other Financing Document, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of
New York, the courts of the United
States of America for the Southern District of
New York, the courts of the
United States of America located in the District of Columbia, the courts of any
other jurisdiction where it or any of its property may be found, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
23
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to it c/o PriceSmart at
the address set forth in Section 9.01 or at such other address of which OPIC
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to ▇▇▇ in
any other jurisdiction; and
(e) agrees that judgment against it in any such action or proceeding shall
be conclusive and may be enforced in any other jurisdiction with or without the
U.S. by suit on the judgment or otherwise as provided by law, a certified or
exemplified copy of which judgment shall be conclusive evidence of the fact and
amount of such Borrower's obligation.
SECTION 8.04 JUDGMENT CURRENCY.
This is an international loan transaction in which the specification of
Dollars is of the essence and such currency shall be the currency of account in
all events. The payment obligations of the Borrowers to OPIC under any Financing
Document shall only be discharged by an amount paid in another currency, whether
pursuant to a judgment or otherwise, to the extent of the amount in Dollars
received by OPIC (after any premium and costs of exchange) on the prompt
conversion to Dollars in the U.S. of the amount so paid in another currency
under normal banking procedures. In the event that any payment by the Borrowers
in another currency, whether pursuant to a judgment or otherwise, upon
conversion and transfer, does not result in the payment of the amount of Dollars
then due at the place such amount is due, OPIC shall be entitled to demand
immediate payment of, and shall have a separate cause of action against the
Borrowers for, the additional amount necessary to yield the amount of Dollars
then due. In the event that OPIC, upon the conversion of a payment in another
currency into Dollars, shall receive an amount greater than that to which it was
entitled, the Borrowers shall be entitled to prompt reimbursement of the excess
amount.
SECTION 8.05 IMMUNITY.
Each of the Borrowers represents and warrants that it is subject to civil
and commercial law with respect to its obligations under each of the Borrower
Documents, that the making and performance of such Borrower Documents and the
borrowings by the Borrowers pursuant hereto constitute private and commercial
acts rather than governmental or public acts, and that none of the Borrowers nor
any of their respective properties or revenues has any right of immunity from
suit, court jurisdiction, attachment prior to judgment, attachment in aid of
execution of a judgment, set-off, execution of a judgment, or from any other
legal process with respect to their respective obligations under such Borrower
Documents. To the extent that the Borrowers may hereafter be entitled, in any
jurisdiction in which judicial or arbitral proceedings may at any time be
commenced with respect to any Borrower Document, to claim for itself or its
revenues or assets any such immunity, and to the extent that in any such
jurisdiction there may be attributed to a Borrower such an immunity (whether or
not claimed), each Borrower hereby irrevocably agrees not to claim and hereby
irrevocably waives such immunity. The foregoing waiver of immunity shall have
effect under the United States Foreign Sovereign Immunities Act of 1976.
24
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 NOTICES.
Each notice, demand, or other communication relating to this Agreement
shall be in writing, shall be hand-delivered or sent prepaid by mail or
overnight delivery service or facsimile transmission (with a copy by mail to
follow, receipt of which copy shall not be required to effect notice), and shall
be deemed duly given when sent to the following addresses:
To the Borrowers:
c/o PriceSmart, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(Attn.: General Counsel)
(Facsimile: 858-581-4707)
To OPIC:
Overseas Private Investment Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(Attn.: Vice President, Finance)
Re: PriceSmart
(Facsimile: 202-408-9866)
Either party may, by written notice to the other, change the address to which
such notices, demands, or other communications should be sent to it.
SECTION 9.02 ENGLISH LANGUAGE.
All documents to be furnished or communications made under each of the
Financing Documents shall be in English or, if in another language, shall be
accompanied by a Certified translation into English, which translation shall
govern between the Borrowers and OPIC.
SECTION 9.03 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, UNITED STATES OF AMERICA.
SECTION 9.04 SUCCESSION; ASSIGNMENT.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto, PROVIDED, HOWEVER, that the
Borrowers shall not, without the prior consent of OPIC, assign or delegate all
or any part of its interest herein or obligations hereunder.
25
SECTION 9.05 SURVIVAL OF AGREEMENTS.
Each agreement, representation, warranty, and covenant contained or
referred to in this Agreement shall survive any investigation at any time made
by OPIC and shall survive all disbursements of the Loan, except for changes
permitted hereby, and, except as otherwise provided in this Section, shall
terminate only when all amounts due or to become due under the Financing
Documents are paid in full. Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in Sections 2.07 and 9.10 shall survive the payment in full
of principal and interest hereunder and under the Notes.
SECTION 9.06 INTEGRATION; AMENDMENTS.
This Agreement and the agreements referred to herein embody the entire
understanding of the parties and supersede all prior negotiations,
understandings, and agreements between them with respect to the subject matter
hereof. The provisions of this Agreement may be waived, supplemented, or amended
only by an instrument in writing signed by the parties hereto.
SECTION 9.07 SEVERABILITY.
If any provision of this Agreement is prohibited or held to be invalid,
illegal, or unenforceable in any jurisdiction, the parties hereto agree to the
fullest extent permitted by law that it shall not affect the validity, legality,
and enforceability of the other provisions of this Agreement and shall not
render such provision prohibited, invalid, illegal, or unenforceable in any
other jurisdiction. If, and to the extent that, any obligation of the Borrowers
(including that under Section 9.10) is unenforceable for any reason, they agree,
independently of any other obligation hereunder, to make the maximum
contribution to the payment and satisfaction thereof as is permissible under
applicable law.
SECTION 9.08 NO WAIVER.
(a) No failure or delay by OPIC in exercising any right, power, or remedy
shall operate as a waiver thereof or otherwise impair any of its rights, powers,
or remedies. No single or partial exercise of any such right, power, or remedy
shall preclude any other or further exercise thereof or the exercise of any
other legal right, power, or remedy. No waiver of any such right, power, or
remedy shall be effective unless given in writing.
(b) The rights, powers, or remedies provided for herein are cumulative and
are not exclusive of any other rights, powers, or remedies provided by law. The
assertion or employment of any right, power, or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion of any other right, power, or remedy.
SECTION 9.09 WAIVER OF JURY TRIAL.
EACH OF THE BORROWERS AND OPIC IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE
ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP BETWEEN THEM ESTABLISHED BY ANY FINANCING DOCUMENT.
26
SECTION 9.10 INDEMNITY.
Each of the Borrowers shall, at all times, indemnify and hold harmless
OPIC and its directors, officers, and employees (each, an "INDEMNIFIED PERSON")
in connection with any Loss (as defined below) and any Costs of Defense (as
defined below) (the "BORROWER INDEMNITY"). The term "LOSS" shall mean any
losses, claims, damages, penalties, or other costs relating to the Loan, this
Agreement, any other Financing Document, or the Project to which an Indemnified
Person may become subject. The term "COSTS OF DEFENSE" shall mean costs, fees,
and expenses incurred by or imposed on any Indemnified Person in defending,
analyzing, settling, or resolving a Loss or Potential Loss (as defined below),
and the expenses associated with the making of any affirmative claim in
connection therewith (PROVIDED, that costs, fees, and expenses in connection
with a proceeding by any Indemnified Person to enforce his, her, or its rights
under the Borrower Indemnity shall not be considered to be "Costs of Defense").
The term "POTENTIAL LOSS" shall mean any event, fact, condition, or circumstance
that is reasonably likely to give rise to a Loss. The Borrower Indemnity shall
not apply to the extent that a court or arbitral tribunal with jurisdiction over
the Loss and each Indemnified Person who has a Loss or Costs of Defense in
connection therewith renders a final determination that the Loss or Costs of
Defense resulted from (a) the gross negligence or willful misconduct of the
Indemnified Person, or (b) OPIC's failure to perform any act required of it
relating to the Loan. The Borrower Indemnity is independent of and in addition
to (i) any rights of any party hereto in connection with any Loss or Costs of
Defense, and (ii) any other agreement, and shall survive the execution,
modification, and amendment of this Agreement and the other Financing Documents,
the expiration, cancellation, or termination of the Commitment, the disbursement
and repayment of the Loan, and the provisions of any other indemnity. Any
exclusion of an obligation to pay any amount under this Section shall not affect
the requirement to pay such amount under any other Section hereof or under any
other agreement. OPIC and each Indemnified Person shall have the right to
control its, his, or her defense, PROVIDED, HOWEVER, that each Indemnified
Person shall: (a) notify the Borrowers in writing as soon as practicable of any
Loss, Potential Loss, or Cost of Defense, and (b) keep the Borrowers reasonably
informed of material developments with respect thereto. In exercising the right
and power to control his, her, or its actions in connection with a Loss or
Potential Loss, including a decision to settle any such Loss, each Indemnified
Person shall, taking into account the nature and policies of such Indemnified
Person (i) consult with the Borrowers, and (ii) act as such Indemnified Person
would act if the Costs of Defense or settlement were to be paid by such
Indemnified Person. Each of the Borrowers acknowledge and agree that each
Indemnified Person is an express, third-party beneficiary of the Borrowers'
obligations under this Section 9.10.
SECTION 9.11 FURTHER ASSURANCES.
The Borrowers shall execute and deliver to OPIC such additional documents
and take such additional action as OPIC may require to carry out the purposes of
the Financing Documents, to cause the Financing Documents to be duly registered,
notarized, and stamped in any applicable jurisdiction, and to preserve and
protect OPIC's rights as contemplated herein or therein.
SECTION 9.12 COUNTERPARTS.
This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original and all of which together
shall constitute one and the same instrument.
27
SECTION 9.13 WAIVER OF LITIGATION PAYMENTS.
In the event that any action or lawsuit is initiated by or on behalf of
OPIC against the Borrowers or any other party to any Financing Document, the
Borrowers, to the fullest extent permissible under applicable law, irrevocably
waive their right to, and agree not to request, plead, or claim that OPIC and
its successors, transfers, and assigns (any such Person, an "OPIC PLAINTIFF")
post, pay, or offer, any CAUTIO JUDICATUM ▇▇▇▇▇ ▇▇▇▇, litigation bond, or any
other bond, fee, payment, or security measure provided for by any provision of
law applicable to such action or lawsuit (any such bond, fee, payment, or
measure, a "LITIGATION PAYMENT"), and the Borrowers further waive any objection
that it may now or hereafter have to an OPIC Plaintiff's claim that such OPIC
Plaintiff should be exempt or immune from posting, paying, making, or offering
any such Litigation Payment.
28
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed and delivered on its behalf by its authorized representative as of the
date first above written.
PRICESMART, INC.
By: ______________________________
Its: _____________________________
Authorized Officer
PSMT CARIBE, INC.
By: ______________________________
Its: _____________________________
Authorized Officer
PSMT ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ RICA, S.A.
By:________________________________
Its:_______________________________
Authorized Officer
PRICSMARLANDCO, S.A.
By:________________________________
Its:_______________________________
Authorized Officer
OVERSEAS PRIVATE INVESTMENT
CORPORATION
By: _______________________________
Its: ______________________________
Authorized Officer
)
) ss:
)
I, ______________________, a notary public in and for _______________,
DO HEREBY CERTIFY that ___________________________________, an Authorized
Officer of PriceSmart, Inc. ("PRICESMART"), personally appeared before me in
said _______________________, personally known to me and known by me to be
the person who executed on behalf of PriceSmart the
Loan Agreement annexed
hereto, who acknowledged the same to be his or her own free act and deed and
the free act and deed of PriceSmart, and that he or she had the necessary
authority to do so.
Given under my hand and notarial seal this _____ day of __________, 2001.
----------------------------------
----------------------------------
)
) ss:
)
I, ______________________, a notary public in and for _______________,
DO HEREBY CERTIFY that ___________________________________, an Authorized
Officer of PSMT Caribe, Inc. ("PSMT CARIBE"), personally appeared before me
in said _______________________, personally known to me and known by me to be
the person who executed on behalf of PSMT Caribe the
Loan Agreement annexed
hereto, who acknowledged the same to be his or her own free act and deed and
the free act and deed of the PSMT Caribe, and that he or she had the
necessary authority to do so.
Given under my hand and notarial seal this _____ day of __________, 2001.
----------------------------------
----------------------------------
2
)
) ss:
)
I, ______________________, a notary public in and for _______________,
DO HEREBY CERTIFY that ___________________________________, an Authorized
Officer of PSMT ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A. ("PSMT COSTA RICA"), personally
appeared before me in said _______________________, personally known to me
and known by me to be the person who executed on behalf of PSMT Costa Rica
the Loan Agreement annexed hereto, who acknowledged the same to be his or her
own free act and deed and the free act and deed of the PSMT Costa Rica, and
that he or she had the necessary authority to do so.
Given under my hand and notarial seal this _____ day of __________, 2001.
----------------------------------
----------------------------------
3
)
) ss:
)
I, ______________________, a notary public in and for _______________,
DO HEREBY CERTIFY that ___________________________________, an Authorized
Officer of Pricsmarlandco, S.A. ("COSTA RICA LANDCO"), personally appeared
before me in said _______________________, personally known to me and known
by me to be the person who executed on behalf of Costa Rica Landco the Loan
Agreement annexed hereto, who acknowledged the same to be his or her own free
act and deed and the free act and deed of the Costa Rica Landco, and that he
or she had the necessary authority to do so.
Given under my hand and notarial seal this _____ day of __________, 2001.
----------------------------------
----------------------------------
4
SCHEDULE X
----------
1. DEFINED TERMS. As used in this Agreement and this Schedule X, the
following terms shall have the following meanings.
"ADJUSTED INDEBTEDNESS" means Indebtedness excluding trade
liabilities incurred in the ordinary course of business, operating lease
obligations, and other items commonly considered current payables according to
GAAP.
"AFFILIATE" means, with respect to any Person, (i) any other Person
that is directly or indirectly controlled by, under common control with or
controlling such Person; (ii) any other Person owning beneficially or
controlling five percent (5%) or more of the equity interest in such Person;
(iii) any officer or director of such Person; or (iv) any spouse or relative of
such Person. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of partnership interests or
voting securities, by contract or otherwise.
"AFFILIATE PAYMENT" means any payment by any Borrower or any
Subsidiary to any Affiliate of any Borrower, except for Back-to-Back Loan
payments.
"AGREEMENT" means this Loan Agreement as amended, modified, or
supplemented from time to time.
"APPLICATION" means PriceSmart's application to OPIC for the Loan,
consisting of the Commitment Letter, and the items described in Schedule 1.01.
"AUTHORIZED OFFICER" means, with respect to any Person, any officer
designated in such Person's Charter Documents or otherwise in writing as having
been authorized to execute and deliver any of the Financing Documents.
"BACK-TO-BACK LOAN" means any loan or other advance to any Borrower
or any Subsidiary that are collateralized by cash or cash-equivalent deposits of
any Borrower or any Subsidiary.
"BORROWERS" has the meaning set forth in the preamble to this
Agreement.
"BORROWER DOCUMENTS" means each of the Financing Documents to which
the Borrowers are or will be a party.
"BORROWER INDEMNITY" has the meaning set forth in Section 9.10.
"BUSINESS DAY" means any day other than (i) a Saturday, Sunday, or
day on which commercial banks are authorized by law to close in the City of
New
York or Washington, D.C., United States of America, (ii) with respect to any
Disbursement or any payment or communication to OPIC, a day on which OPIC is not
open for business, and (iii) solely for the purpose of Disbursement, a day when
banks are not open for business in London, England.
"CANCELLATION FEE" has the meaning set forth in Section 2.06(b).
"CASH FLOW" of PriceSmart for any period, means the sum of (i) its
Net Income for such period, PLUS (ii) all interest expense, any expense for any
Commitment Fee, Facility Fee and Maintenance Fee, and depreciation,
amortization, deferred income taxes, and other non-cash expenses for such period
(but only to the extent deducted in determining Net Income), MINUS (iii) Changes
in Working Capital.
"CENTRAL OFFICE EXPENDITURES" means all costs related to the
operations of offices located in Miami, Florida and San Diego, California.
"CERTIFIED" means, in respect of any document, that it is being
delivered accompanied by a certification from an Authorized Officer that it is
true and complete (or a true and complete copy, as the case may be), including
all amendments to date, and in full force and effect in accordance with its
terms as of the date of certification.
"CHANGE IN CIRCUMSTANCES" has the meaning set forth in Section 5.02.
"CHANGES IN WORKING CAPITAL" means Working Capital at the end of any
period MINUS Working Capital at the beginning of such period.
"CHARGE-BACK" means any expense charged by PriceSmart to a
Subsidiary or Joint Venture for Central Office Expenditures.
"CHARTER DOCUMENTS" means, in respect of any Person, such Person's
founding act, charter, articles of incorporation and by-laws, memorandum and
articles of association, statute, or similar instrument.
"CHATTEL MORTGAGE" means a security device which creates a valid and
enforceable, first-priority lien over the movable assets secured by it.
"CLOSING DATE" for any Disbursement means the Business Day on which
a Disbursement is made.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute and all rules and regulations promulgated thereunder.
"COLLATERAL AGENT" means a U.S. financial institution acceptable to
OPIC, as collateral agent under the DSR Agreement.
"COMMITMENT" means OPIC's commitment to lend an amount up to
$5,000,000 less (i) the portion thereof that pursuant to Section 2.06(b) has
been canceled or has been deemed canceled, and (ii) any Loan amounts repaid or
prepaid.
"COMMITMENT FEE" has the meaning set forth in Section 2.06(a).
"COMMITMENT LETTER" means the letter agreement, dated September 25,
2000, among OPIC and PriceSmart.
"COMMITMENT PERIOD" means the period commencing on March 31, 2001,
and expiring on the earlier of (i) the first date on which the amount of the
Loan equals the amount of the Commitment and (ii) January 26, 2003.
2
"CONSENTS" means any registration, declaration, filing, consent,
license, right, approval, authorization, or permit.
"CONSOLIDATED" or "CONSOLIDATED BASIS" means financial statements
that present the financial position of legally separate parent and subsidiary
companies as if they were one economic entity and that eliminate inter-company
transactions.
"CORPORATE EXPANSION PLAN" means PriceSmart's plan to construct,
equip and place into operation and the provision of working capital for
twenty-four (24) deep discount membership-shopping warehouse stores.
"CORPORATE FINANCIAL PLAN" means the financial plan for the
Corporate Expansion Plan pursuant to Schedule 3.01(l)(ii).
"CORRUPT PRACTICES LAWS" means (i) the Foreign Corrupt Practices Act
of 1977 (Pub. L. No. 95-213,ss.ss.101-104), as amended, and (ii) any other law,
regulation, order, decree or directive having the force of law and relating to
bribery, kick-backs, or similar business practices.
"COSTS OF DEFENSE" has the meaning set forth in Section 9.10.
"CURRENT ASSETS" means assets of each Borrower treated as current
assets under GAAP.
"CURRENT LIABILITIES" means all Indebtedness of each Borrower and
liabilities due on demand or to become due within one year and other liabilities
of each Borrower treated as current liabilities under GAAP.
"DEBT SERVICE" means, as of any date of determination, the sum of
all payments of principal, interest, and fees made or required to be made by the
Borrowers in respect of Long-term Indebtedness during the period of four (4)
consecutive fiscal quarters immediately preceding such date of determination.
"DEBT SERVICE RESERVE ACCOUNT" means a Dollar-denominated account
established by PriceSmart in a U.S. financial institution acceptable to OPIC and
pledged to OPIC pursuant to the terms of the DSR Agreement.
"DEBT SERVICE RESERVE REQUIREMENT" has the meaning set forth in the
DSR Agreement.
"DEFAULT" means an event or condition that, with the passage of time
or the giving of notice, or both, could constitute an Event of Default.
"DEFAULT RATE" means a fixed interest rate equal to two percent (2%)
PER ANNUM above the highest Interest Rate set forth in any Note outstanding at
the time any amount due to OPIC under any Financing Document is not paid when
due.
"DEFINED BENEFIT PLAN" means a Plan that defines the benefits that
employees will receive.
"DERIVATIVE TRANSACTION" means any swap agreement, cap agreement,
collar agreement, futures contract, forward contract or similar arrangement with
respect to interest rates, currencies or commodities.
3
"DISBURSEMENT" means any disbursement of the Loan.
"DISBURSEMENT REQUEST" means a request for disbursement of the Loan
substantially in the form of Exhibit B.
"DOLLARS" or "$" means U.S. dollars.
"DSR AGREEMENT" means an agreement among PriceSmart, OPIC, and the
Collateral Agent, satisfactory to OPIC in form and substance, providing, among
other things, for the creation of a Lien in favor of OPIC on the Debt Service
Reserve Account and all assets deposited or held therein, together with
mechanisms for calculating the Debt Service Reserve Requirement and for
determining how assets, including all foreign exchange revenues of the
Borrowers, are to be deposited and held in the Debt Service Reserve Account and
applied by the Collateral Agent.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all rules and
regulations promulgated thereunder. References to sections of ERISA shall be
construed to also refer to any successor sections.
"ERISA AFFILIATE" shall mean (i) a corporation which is a member of
a controlled group of corporations with the Borrowers within the meaning of
Section 414(b) of the Code; (ii) a trade or business (including a sole
proprietorship, partnership, trust, estate, or corporation) which is under
common control with the Borrowers within the meaning of Section 414(c) of the
Code or Section 4001(b)(1) of ERISA; (iii) a member of an affiliated service
group with the Borrowers within the meaning of Section 414(m) of the Code; or
(iv) an entity described in Section 414(o) of the Code.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.01.
"FACILITY FEE" has the meaning set forth in Section 2.06(c).
"FEES" means the Commitment Fee, the Cancellation Fee, the Facility
Fee, and the Maintenance Fee.
"FINANCIAL STATEMENTS" means, with respect to each Borrower,
quarterly or annual balance sheet and statements of income, retained earnings,
and sources and uses of funds for such fiscal period, together with all notes
thereto and with comparable figures for the corresponding period of its previous
Fiscal Year, each prepared in English and in Dollars in accordance with GAAP.
"FINANCING DOCUMENTS" has the meaning set forth in Section 4.02.
"FISCAL YEAR" means, with respect to each Borrower, the period
beginning on September 1 and ending on August 31 of each year.
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time, applied on a consistent basis
both as to classification of items and amounts.
"GUARANTY TRUST" means a legal entity in Costa Rica created by the
grantor for the benefit of OPIC and which creates a valid and enforceable,
first-priority lien on the assets included within it.
"IFC A LOAN" means the loan made pursuant to the IFC A Loan
Agreement.
4
"IFC C LOAN" means the loan made pursuant to the IFC C Loan
Agreement.
"IFC A LOAN AGREEMENT" means the Loan Agreement entered into among
PriceSmart, Inc., PSMT Caribe, Inc., PSMT Trinidad/Tobago Limited, and
International Finance Corporation dated January 26, 2001, in the principal
amount of $22,000,000.
"IFC C LOAN AGREEMENT" means the Loan Agreement entered into among
PriceSmart, Inc., PSMT Caribe, Inc., PSMT Trinidad/Tobago Limited and
International Finance Corporation dated January 26, 2001, in the principal
amount of $10,000,000.
"INDEBTEDNESS" means, with respect to any Person at any date, total
liabilities as defined by GAAP, excluding Back-to-Back Loans, and any obligation
created, issued, incurred, or assumed by such Person for borrowed money or
arising out of any credit facility or financial accommodation, or for the
deferred purchase price of goods or services, including, any Permitted
Derivative Transactions, any credit to such Person under any conditional sale or
other title retention agreement, all guaranties by such Person of liabilities or
Indebtedness of any other Person, liabilities or Indebtedness of any other
Person secured by any assets or revenue of such Person, and the net aggregate
rentals under any lease by such Person as lessee that under GAAP would be
capitalized on the books of the lessee or that is the substantial equivalent of
the financing of the property so leased.
"INDEMNIFIED PERSON" has the meaning set forth in Section 9.10.
"INTEREST RATE" means, with respect to a Note, a fixed rate of
interest equal to the borrowing cost charged to OPIC, for the Disbursement
evidenced by such Note, by the U.S. Department of the Treasury plus four percent
(4%) PER ANNUM.
"IFC" means the International Finance Corporation, and international
organization established by Articles of Agreement among its member countries,
and a member of the World Bank Group.
"JOINT VENTURE" means a legal entity to which PriceSmart and one or
more Persons, other than an Affiliate, contribute assets, share risks, profits,
and losses, have the right to direct and govern the policy of the undertaking
all of which may altered by agreement.
"LIEN" means any lien, pledge, mortgage, security interest, deed of
trust, charge, assignment, hypothecation, title retention, or other encumbrance
on or with respect to, or any preferential arrangement having the practical
effect of constituting a security interest with respect to the payment of any
obligation with, or from the proceeds of, any asset or revenue of any kind.
"LITIGATION PAYMENT" has the meaning set forth in Section 9.13.
"LOAN" means, on any date, the aggregate of the outstanding unpaid
principal amounts of the Notes then outstanding.
"LOAN DOCUMENTS" has the meaning set forth in Section 4.02(a)(ii).
"LOAN MATURITY DATE" means September 15, 2010.
"LONG-TERM INDEBTEDNESS" means, in accordance with GAAP, any
Indebtedness, the final maturity of which, by its terms or the terms of any
agreement related to it, falls due more than one year after the date of its
incurrence.
5
"LOSS" has the meaning set forth in Section 9.10.
"MAINTENANCE FEE" has the meaning set forth in Section 2.06(d).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i)
PriceSmart, (ii) the Project, (iii) the business, operations, prospects,
condition (financial or otherwise), or property of PriceSmart or the Project or
any other Person whose continuing viability is essential to PriceSmart or the
Project, (iv) the ability of the Borrowers or any other party to perform in a
timely manner its material obligations under any of the Financing Documents, (v)
the validity or enforceability of any material provision of any Financing
Document, (vi) the rights and remedies of OPIC under any of the Financing
Documents, or (vii) the Liens provided to OPIC under the Security Documents.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is maintained for employees of PriceSmart or
any ERISA Affiliate.
"NET INCOME" means, on a Consolidated Basis with respect to
PriceSmart, for any period, the net income (loss) of PriceSmart for such period,
as determined in accordance with GAAP, PROVIDED, that there shall be excluded in
such determination (i) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of income
accrued during such period, (ii) any aggregate net gain during such period
arising from the sale, conversion, exchange, or other disposition of capital
assets, (iii) any gains resulting from the write-up of any assets, (iv) any net
gain arising from the extinguishment, under GAAP, of any Indebtedness of
PriceSmart, and (v) any net income or gain during such period resulting from (A)
any change in accounting principles in accordance with GAAP, (B) any prior
period adjustments resulting from any change in accounting principles in
accordance with GAAP, (C) any extraordinary items, and (D) any discontinued
operations or the disposition thereof.
"NOTE" means any promissory note issued by the Borrowers pursuant to
this Agreement substantially in the form of Exhibit A.
"OPIC" has the meaning set forth in the preamble to this Agreement.
"OPIC PLAINTIFF" has the meaning set forth in Section 9.13.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"PSMT CARIBE COSTA RICA STOCK PLEDGE AND SHARE RETENTION AGREEMENT"
means the Stock Pledge and Share Retention Agreement among PSMT Caribe, PSMT
Costa Rica, Costa Rica Landco, and OPIC, satisfactory to OPIC in form and
substance.
"PAYMENT DATE" means the 15th day of each March and September after
the date hereof until the Loan and all amounts due hereunder or under the Notes
are paid in full, unless such Payment Date is not a Business Day, in which case
the Payment Date will be the next succeeding Business Day.
"PERSON" means an individual, a legal entity, including, a
partnership, a joint venture, a corporation, a trust, and an unincorporated
organization, and a government or any department or agency thereof.
"PERMITTED DERIVATIVE TRANSACTION" means any Derivative Transaction
permitted in accordance with Section 7.02(g) of this Agreement.
6
"PLAN" shall mean any employee benefit plan within the meaning of
Section 3(3) of ERISA, other than a Multiemployer Plan, subject to Title I of
ERISA, which (i) is established, sponsored, maintained, or administered by a
Borrower or any ERISA Affiliate, or for which a Borrower or any ERISA Affiliate
has an obligation to contribute or any liability or in which a Borrower or any
ERISA Affiliate participates, or (ii) has, since the date which is six years
immediately preceding the date of this Agreement, been established, sponsored,
maintained or administered for employees of a Borrower or any of its current or
former ERISA Affiliates or for which a Borrower or any of its current or former
ERISA Affiliates had an obligation to contribute or any liability or in which a
Borrower or any of its current or former ERISA Affiliates participated.
"POTENTIAL LOSS" has the meaning set forth in Section 9.10.
"PREPAYMENT PREMIUM" has the meaning set forth in Section 2.04.
"PRICESMART STOCK PLEDGE AND SHARE RETENTION AGREEMENT" means the
Stock Pledge and Share Retention Agreement between PriceSmart, and OPIC,
satisfactory to OPIC in form and substance.
"PRINCIPAL INSTALLMENT" has the meaning set forth in Section 2.03.
"PROJECT" means the construction, equipping and placing into
operation and the provision of working capital for one deep discount
membership-shopping warehouse store located in Heredia, Costa Rica.
"PROJECT COMPANY" means either PSMT Costa Rica or Costa Rica Landco,
collectively, "Project Companies".
"PROJECT CONTRACTS" has the meaning set forth in Section 7.09.
"PROJECT COUNTRY" means Costa Rica.
"PROJECT FINANCIAL PLAN" means the financial plan for the Project
pursuant to Schedule 3.01(l)(i).
"PROJECTED DEBT SERVICE" means, as of any date of determination, the
sum of all payments of principal, interest, and fees required to be made by the
Borrowers in respect of Long-term Indebtedness during the period of four (4)
consecutive fiscal quarters next succeeding such date of determination.
"RESTRICTED PAYMENT" means any of the following made directly or
indirectly by any Borrower or Subsidiary: (i) any dividend or distribution on
any share of capital stock of PriceSmart, including any reduction of capital,
(ii) any payment of principal or interest on any Indebtedness of any Borrower or
Subsidiary to or for the benefit of any Affiliate, other than accounts payable
for goods or services PROVIDED on an arm's-length basis, and (iii) any purchase,
redemption, acquisition, or retirement of any shares of capital stock of any
Borrower or any Subsidiary or any Indebtedness of any Borrower or any Subsidiary
held by any Affiliate, except for the purchase of shares of capital stock of
PriceSmart Subsidiaries by PriceSmart.
"SECURITY DOCUMENTS" has the meaning set forth in Section
4.02(a)(iii).
7
"SECURITY SHARING AGREEMENT" means an undertaking between OPIC and
the IFC by which they will cooperate in exercising any remedies in respect of
the Loan, the IFC A Loan and the IFC C Loan and security granted therefor and
share any recoveries thereunder.
"SELF-MONITORING QUESTIONNAIRE" means the Annual Self-Monitoring
Questionnaire attached as Exhibit E, as the same may be revised and supplemented
by OPIC from time to time.
"SUBSIDIARY" means with respect to PriceSmart, any entity:
(i) over fifty percent (50%) of whose capital is owned, directly or
indirectly, by PriceSmart; or
(ii) for which PriceSmart may nominate or appoint a majority of the
members of the board of directors or such other body performing similar
function; or
(iii) which is otherwise effectively controlled by that PriceSmart.
"TANGIBLE NET WORTH" means, as of any date for the Borrowers, (i)
the total stockholders equity (including capital stock, paid-in capital and
retained earnings, after deducting treasury stock and reserves) that would
appear on each Borrower's Financial Statements prepared as of that date, less
(ii) the aggregate book value of all intangible assets shown on each Borrower's
Financial Statements as of that date (including goodwill, patents, trademarks,
trade names, copyrights, franchises, and unrealized appreciation of assets).
"TAXES" means all taxes, charges, fees, levies or other assessments,
including without limitation, all net income, gross income, gross receipts,
sales, use, ad valorem, value added, turnover, transfer, franchise, profits,
license, withholding, payroll, employment, excise, estimated, severance, stamp,
occupation, property or other taxes, customs duties, fees, assessments or
charges of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts imposed by any local taxing authority and
any political subdivision, instrumentality, agency or similar body of any local
taxing authority.
"U.S." means the United States of America.
"U.S. GOVERNMENT" means the government of the United States of
America and its agencies and instrumentalities.
"U.S. PERSON" means a:
(i) United States citizen; or
(ii) corporation, partnership or other association, including a
nonprofit association, created under the laws of the United States or any state
or territory thereof, or the District of Columbia, and more than fifty percent
(50%) beneficially owned by United States citizens; or
(iii) foreign corporation, partnership or other association wholly
owned by one or more such United States citizens, corporations, partnerships, or
other associations; provided, however, that the eligibility of such foreign
corporation shall be determined without regard to any shares, aggregating less
than five (5%) of the total of issued and subscribed share capital, held by
other than the United States owners.
8
"WORKER RIGHTS REQUIREMENTS" has the meaning set forth in Section
7.09.
"WORKING CAPITAL" means Current Assets (excluding all cash) MINUS
Current Liabilities (excluding the current portion of all Indebtedness).
"WORLD BANK GUIDELINES" means the International Finance
Corporation's Environmental, Health and Safety Guidelines for Office Buildings,
dated July 1, 1998.
2. RULES OF INTERPRETATION.
In this Agreement and this Schedule X, unless otherwise indicated or
required by the context: (a) reference to and the definition of any document
(including this Agreement) shall be deemed a reference to such document as it
may be amended, supplemented, revised, or modified from time to time; (b) all
references to an "Article," "Section", "Schedule," or "Exhibit" are to an
Article or Section of this Agreement or to a Schedule or an Exhibit attached
thereto and shall be deemed to have been made a part thereof; (c) the table of
contents and article and section headings and other captions are for the purpose
of reference only and do not limit or affect the meaning of the terms and
provisions thereof; (d) defined terms in the singular include the plural and
vice versa, and the masculine, feminine and neuter gender include all genders;
(e) accounting terms not defined in this Schedule X have the meanings given to
them under GAAP; (f) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement as a whole and not to any particular
provision of this Agreement; (g) the words "include," "includes," and
"including" mean include, includes and including "without limitation" and
"without limitation by specification"; (h) terms capitalized for other than
grammatical purposes that are defined in (i) the preamble, (ii) the recitals, or
(iii) the Sections of this Agreement have the meanings ascribed to them therein;
and (i) phrases such as "satisfactory to OPIC", "in such manner as OPIC may
determine," "to OPIC's satisfaction," "at OPIC's election," and phrases of
similar import authorize and permit OPIC to approve, disapprove, act or decline
to act in its sole discretion.
9
EXHIBIT A
[FORM OF] PROMISSORY NOTE
$___________ Dated: [ ], 2001
FOR VALUE RECEIVED, the undersigned, PriceSmart, Inc., a corporation
organized and existing under the laws of the State of Delaware, USA
("PriceSmart"), and PSMT Caribe, Inc., a corporation organized and existing
under the laws of the Territory of the British Virgin Islands ("PSMT CARIBE"),
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A., a corporation organized and existing under the laws
of Costa Rica ("PSMT COSTA RICA"), and Pricsmarlandco, S.A., a corporation
organized and existing under the laws of Costa Rica ("COSTA RICA LANDCO"), each
a "Borrower" and, collectively, the "Borrowers", HEREBY PROMISE TO PAY to the
order of OVERSEAS PRIVATE INVESTMENT CORPORATION, an agency of the United States
of America ("OPIC"), the principal sum of [______________] Dollars ($__________)
or, if less, the principal amount of the Disbursement (as defined below)
evidenced by this Promissory Note that is outstanding at any time, in
substantially equal consecutive semi-annual installments on the fifteenth day of
each March and September in each year, commencing on [_________] (each a
"PAYMENT DATE"), and ending no later than [_______] (the "LOAN MATURITY DATE");
PROVIDED, HOWEVER, that the last such installment shall be in the amount
necessary to repay in full the unpaid principal amount hereof; together with
interest on the principal amount hereof from time to time outstanding from the
date hereof until such principal amount is paid in full, payable semi-annually
in arrears on the fifteenth day of each March and September and on the Loan
Maturity Date at a fixed rate PER ANNUM equal at all times to [a fixed rate of
interest equal to the borrowing cost charged to OPIC by the U.S. Department of
Treasury plus four hundred basis points (4%) PER ANNUM] (the "INTEREST RATE")
and, with respect to interest on any overdue amount due to OPIC under any
Financing Document, payable on demand, at the Default Rate from the date that
such amount was due to the date of payment thereof in full. Both principal and
interest on the Disbursement are payable to OPIC in Dollars and otherwise as set
forth in Section 2.03 of the Loan Agreement (as defined below).
This Promissory Note is a Note referred to in, is issued under, and is
subject to and entitled to the benefits of, the Loan Agreement dated as of [ ],
2001, among the Borrowers and OPIC (the "LOAN AGREEMENT"; the terms defined
therein and not otherwise defined herein being used herein as therein defined).
The Loan Agreement, among other things, (i) provides for the making of
disbursements (each a "DISBURSEMENT") by OPIC to the Borrower, the indebtedness
of the Borrower resulting from each Disbursement being evidenced by a Note, and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for voluntary and mandatory
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified. No reference herein to the Loan
Agreement and no provision of this Promissory Note or the Loan Agreement shall
alter or impair the obligation of the Borrower to pay the principal of, interest
on, and all other amounts due pursuant to this Promissory Note as provided
herein.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF
NEW YORK
PRICESMART, INC.
By: ________________________
Its:
PSMT CARIBE, INC.
By: ________________________
Its:
PSMT ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ RICA, S.A.
By: ________________________
Its:
PRICSMARLANDCO, S.A.
By: ________________________
Its:
2
EXHIBIT B
FORM OF DISBURSEMENT REQUEST
PriceSmart, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[DATE]
Overseas Private Investment Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: Vice President for Finance
with a copy to Treasurer
DISBURSEMENT REQUEST
Dear Sir or Madam:
Reference is made to the Loan Agreement among PriceSmart, Inc. ("PRICESMART"),
PSMT Caribe, Inc. ("PSMT CARIBE"), ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A. ("PSMT COSTA
RICA"), Pricsmarlandco, S.A. ("COSTA RICA LANDCO"), each a "BORROWER" and,
collectively, the "BORROWERS", and Overseas Private Investment Corporation
("OPIC") dated as of [___], 2001 (the "LOAN AGREEMENT"). Except as otherwise
provided, capitalized terms used herein shall have the meanings set forth in the
Loan Agreement.
Each of PSMT Caribe, PSMT Costa Rica, and Costa Rica Landco has appointed
PriceSmart as its attorney-in-fact for the purpose of executing and delivering
this Disbursement Request.
Pursuant to Section 2.01(b) of the Loan Agreement, notice is hereby given that:
(i) the undersigned requests Disbursement of the Loan as follows:
Amount of Disbursement: $__________
Closing Date: [NOT LESS THAN 10 BUSINESS DAYS FROM THE DATE OPIC
RECEIVES THIS DISBURSEMENT REQUEST]; and
(ii) there is a simultaneous request for pro-rata disbursement (as defined
in the IFC A Loan Agreement) for the IFC A Loan, a copy of such request is
attached.
The proceeds of the Disbursement are needed for purposes of the Project to meet
the following expenses (detailed in Exhibit A attached hereto and which also
will be described in detail and documented in the Officer Certificate to be
delivered on the Closing Date pursuant to Section 5.03):
1. [___]
2. [___]
3
As of the Closing Date, each of the conditions set forth in [Articles IV and
VI][Articles V and VI] will be satisfied.
Very truly Yours,
PriceSmart, Inc.
By:__________________________
Its:
4
EXHIBIT C(i)
FORM OF CORPORATE AUTHORIZATION CERTIFICATE
PriceSmart, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 4.01
---------------------------
I, [__________], Corporate Secretary of PriceSmart, Inc., a corporation
organized and existing under the laws of the State of Delaware, USA
("PRICESMART"), DO HEREBY CERTIFY that:
1. Attached hereto as Exhibit A is a true and complete copy of the
[Charter Documents] of PriceSmart, as amended to date, which are in full force
and effect as of the date hereof [, together with [__________], evidencing that
such documents have been approved by the competent governmental agencies and
authorities in [_____]].
2. Attached hereto as Exhibit B are true and complete copies of
resolutions duly adopted by the [Board of Directors] of PriceSmart [and of all
documents evidencing any other necessary corporate or shareholder action taken
by PriceSmart] to authorize the execution, delivery and performance of the Loan
Agreement among PriceSmart, PSMT Caribe, Inc., ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A.,
Pricsmarlandco, S.A., each a "BORROWER" and, collectively, the "BORROWERS", and
Overseas Private Investment Corporation ("OPIC"), dated as of [_____], 2001 (the
"LOAN AGREEMENT") (capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the Loan Agreement), the Notes and
each of the other Financing Documents to which it is or will be a party, and
such resolutions are in full force and effect without amendment as of the date
hereof.
3. The following named individuals whose specimen signatures and titles
are set forth opposite their names are authorized to execute and deliver on
behalf of PriceSmart the Loan Agreement, the Notes, each of the other Financing
Documents to which PriceSmart is or will be a party and all other notices or
instruments contemplated in the Loan Agreement:
5
-------------------- -------------------- --------------------
Name Title Specimen Signature
-------------------- -------------------- --------------------
Name Title Specimen Signature
-------------------- -------------------- --------------------
Name Title Specimen Signature
WITNESS my hand this [_____] day of [__________], 2001.
----------------------------
[Name]
Corporate Secretary
I, [__________], the Chairperson and Chief Executive Officer of
PriceSmart, DO HEREBY CERTIFY that [Name of Corporate Secretary] is, and at all
times since [__________], [199_ or 200_] has been, duly elected and qualified as
Corporate Secretary of the Company, and that the signature of such Corporate
Secretary set forth above is true and genuine.
WITNESS my hand this [_____] day of [______], 2001.
---------------------------
6
United States of America )
) ss:
)
I, _____________________________, a [notary public in and for
_________________________], DO HEREBY CERTIFY that [Name], the Chairperson and
Chief Executive Officer of PriceSmart, Inc. ("PRICESMART"), personally appeared
before me in [_____________________], personally known to me and known by me to
be the person who executed on behalf of PriceSmart the Officer's Certificate
annexed hereto, who acknowledged the same to be [his/her] own free act and deed
and the free act and deed of PriceSmart, and that he had the necessary authority
to do so. I DO FURTHER CERTIFY that [Name], Corporate Secretary of PriceSmart,
personally appeared before me in [_______________________], personally known to
me and known by me to be the person who executed on behalf of PriceSmart the
Certificate of Corporate Secretary annexed hereto, who acknowledged the same to
be [his/her] own free act and deed and the free act and deed of PriceSmart, and
that [he/she] had the necessary authority to do so.
Given under my hand and [notarial] seal this [_____] day of
[__________], 2001.
------------------------------
-----------------------------
7
EXHIBIT C(ii)
FORM OF CORPORATE AUTHORIZATION CERTIFICATE
PSMT Caribe, Inc.
[Address]
---------------------------
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 4.01
---------------------------
I, [__________], Corporate Secretary of PSMT Caribe, Inc., a corporation
organized and existing under the laws of the Territory of the British Virgin
Islands ("PSMT CARIBE"), DO HEREBY CERTIFY that:
1. Attached hereto as Exhibit A is a true and complete copy of the
[Charter Documents] of PSMT Caribe, as amended to date, which are in full force
and effect as of the date hereof [, together with [__________], evidencing that
such documents have been approved by the competent governmental agencies and
authorities in [_____]].
2. Attached hereto as Exhibit B are true and complete copies of
resolutions duly adopted by the [Board of Directors] of PSMT Caribe [and of all
documents evidencing any other necessary corporate or shareholder action taken
by PSMT Caribe]to authorize the execution, delivery and performance of the Loan
Agreement among PriceSmart, Inc., PSMT Caribe, Inc., ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica,
S.A., Pricsmarlandco, S.A., each a "BORROWER" and, collectively, the
"BORROWERS", and Overseas Private Investment Corporation ("OPIC"), dated as of
[_____], 2001 (the "LOAN AGREEMENT") (capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the Loan
Agreement), the Notes and each of the other Financing Documents to which it is
or will be a party, and such resolutions are in full force and effect without
amendment as of the date hereof.
3. The following named individuals whose specimen signatures and titles
are set forth opposite their names are authorized to execute and deliver on
behalf of PSMT Caribe the Loan Agreement, the Notes, each of the other Financing
Documents to which PSMT Caribe is or will be a party and all other notices or
instruments contemplated in the Loan Agreement:
8
-------------------- -------------------- --------------------
Name Title Specimen Signature
-------------------- -------------------- --------------------
Name Title Specimen Signature
-------------------- -------------------- --------------------
Name Title Specimen Signature
WITNESS my hand this [_____] day of [__________], 2001.
----------------------------
[Name]
Corporate Secretary
I, [__________], the Chairperson and Chief Executive Officer of PSMT
Caribe, DO HEREBY CERTIFY that [Name of Corporate Secretary] is, and at all
times since [__________], [199_ or 200_] has been, duly elected and qualified as
Corporate Secretary of the Company, and that the signature of such Corporate
Secretary set forth above is true and genuine.
WITNESS my hand this [_____] day of [______], 2001.
----------------------------
9
United States of America )
) ss:
)
I, _____________________________, a [notary public in and for
_________________________], DO HEREBY CERTIFY that [Name], the Chairperson and
Chief Executive Officer of PSMT Caribe, Inc. ("PSMT CARIBE"), personally
appeared before me in [_____________________], personally known to me and known
by me to be the person who executed on behalf of PSMT Caribe the Officer's
Certificate annexed hereto, who acknowledged the same to be [his/her] own free
act and deed and the free act and deed of PSMT Caribe, and that he had the
necessary authority to do so. I DO FURTHER CERTIFY that [Name], Corporate
Secretary of PSMT Caribe, personally appeared before me in
[_______________________], personally known to me and known by me to be the
person who executed on behalf of PSMT Caribe the Certificate of Corporate
Secretary annexed hereto, who acknowledged the same to be [his/her] own free act
and deed and the free act and deed of PSMT Caribe, and that [he/she] had the
necessary authority to do so.
Given under my hand and [notarial] seal this [_____] day of
[__________], 2001.
------------------------------
------------------------------
10
EXHIBIT C(iii)
FORM OF CORPORATE AUTHORIZATION CERTIFICATE
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A.
[Address]
---------------------------
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 4.01
---------------------------
I, [__________], Corporate Secretary of ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A., a
corporation organized and existing under the laws of Costa Rica ("PSMT COSTA
RICA"), DO HEREBY CERTIFY that:
1. Attached hereto as Exhibit A is a true and complete copy of the
[Charter Documents] of PSMT Costa Rica, as amended to date, which are in full
force and effect as of the date hereof [, together with [__________], evidencing
that such documents have been approved by the competent governmental agencies
and authorities in [_____]].
2. Attached hereto as Exhibit B are true and complete copies of
resolutions duly adopted by the [Board of Directors] of PSMT Costa Rica
[and of all documents evidencing any other necessary corporate or shareholder
action taken by PSMT Costa Rica] to authorize the execution, delivery and
performance of the Loan Agreement among PriceSmart, Inc., PSMT Caribe, Inc.,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A., Pricsmarlandco, S.A., each a "BORROWER" and,
collectively, the "BORROWERS", and Overseas Private Investment Corporation
("OPIC"), dated as of [_____], 2001 (the "LOAN AGREEMENT") (capitalized terms
used herein and not otherwise defined herein shall have the meanings set forth
in the Loan Agreement), the Notes and each of the other Financing Documents to
which it is or will be a party, and such resolutions are in full force and
effect without amendment as of the date hereof.
3. The following named individuals whose specimen signatures and titles
are set forth opposite their names are authorized to execute and deliver on
behalf of PSMT Costa Rica the Loan Agreement, the Notes, each of the other
Financing Documents to which PSMT Costa Rica is or will be a party and all other
notices or instruments contemplated in the Loan Agreement:
11
-------------------- -------------------- --------------------
Name Title Specimen Signature
-------------------- -------------------- --------------------
Name Title Specimen Signature
-------------------- -------------------- --------------------
Name Title Specimen Signature
WITNESS my hand this [_____] day of [__________], 2001.
----------------------------
[Name]
Corporate Secretary
I, [__________], the Chairperson and Chief Executive Officer of PSMT Costa
Rica, DO HEREBY CERTIFY that [Name of Corporate Secretary] is, and at all times
since [__________], [199_ or 200_] has been, duly elected and qualified as
Corporate Secretary of the Company, and that the signature of such Corporate
Secretary set forth above is true and genuine.
WITNESS my hand this [_____] day of [______], 2001.
----------------------------
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ )
) ss:
)
I, ___________, a [notary public in and for_________________], DO
HEREBY CERTIFY that [Name], the Chairperson and Chief Executive Officer of
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A. ("PSMT COSTA RICA"), personally appeared before
me in [_____________________], personally known to me and known by me to be
the person who executed on behalf of PSMT Costa Rica the Officer's
Certificate annexed hereto, who acknowledged the same to be [his/her]own free
act and deed and the free act and deed of PSMT Costa Rica, and that he had
the necessary authority to do so. I DO FURTHER CERTIFY that [Name], Corporate
Secretary of PSMT Costa Rica, personally appeared before me in
[_______________________], personally known to me and known by me to be the
person who executed on behalf of PSMT Costa Rica the Certificate of Corporate
Secretary annexed hereto, who acknowledged the same to be [his/her] own free
act and deed and the free act and deed of PSMT Costa Rica, and that [he/she]
had the necessary authority to do so.
Given under my hand and [notarial] seal this [_____] day of
[__________], 2001.
------------------------------
------------------------------
13
EXHIBIT C(iv)
FORM OF CORPORATE AUTHORIZATION CERTIFICATE
Pricsmarlandco, S.A.
[Address]
---------------------------
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 4.01
---------------------------
I, [__________], Corporate Secretary of Pricsmarlandco, S.A., a
corporation organized and existing under the laws of Costa Rica ("COSTA RICA
LANDCO"), DO HEREBY CERTIFY that:
1. Attached hereto as Exhibit A is a true and complete copy of the
[Charter Documents] of Costa Rica Landco, as amended to date, which are in
full force and effect as of the date hereof [, together with [__________],
evidencing that such documents have been approved by the competent
governmental agencies and authorities in [_____]].
2. Attached hereto as Exhibit B are true and complete copies of
resolutions duly adopted by the [Board of Directors] of Costa Rica Landco [and
of all documents evidencing any other necessary corporate or shareholder
action taken by Costa Rica Landco] to authorize the execution, delivery and
performance of the Loan Agreement among PriceSmart, Inc., PSMT Caribe, Inc.,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A., Pricsmarlandco, S.A., each a "BORROWER" and,
collectively, the "BORROWERS", and Overseas Private Investment Corporation
("OPIC"), dated as of [_____], 2001 (the "LOAN AGREEMENT") (capitalized terms
used herein and not otherwise defined herein shall have the meanings set
forth in the Loan Agreement), the Notes and each of the other Financing
Documents to which it is or will be a party, and such resolutions are in full
force and effect without amendment as of the date hereof.
3. The following named individuals whose specimen signatures and titles
are set forth opposite their names are authorized to execute and deliver on
behalf of Costa Rica Landco the Loan Agreement, the Notes, each of the other
Financing Documents to which Costa Rica Landco is or will be a party and all
other notices or instruments contemplated in the Loan Agreement:
14
-------------------- -------------------- --------------------
Name Title Specimen Signature
-------------------- -------------------- --------------------
Name Title Specimen Signature
-------------------- -------------------- --------------------
Name Title Specimen Signature
WITNESS my hand this [_____] day of [__________], 2001.
----------------------------
[Name]
Corporate Secretary
I, [__________], the Chairperson and Chief Executive Officer of Costa
Rica Landco, DO HEREBY CERTIFY that [Name of Corporate Secretary] is, and at
all times since [__________], [199_ or 200_] has been, duly elected and
qualified as Corporate Secretary of the Company, and that the signature of
such Corporate Secretary set forth above is true and genuine.
WITNESS my hand this [_____] day of [______], 2001.
----------------------------
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ )
) ss:
)
I, _______________, a [notary public in and for _____________],
DO HEREBY CERTIFY that [Name], the Chairperson and Chief Executive Officer of
Pricsmarlandco, S.A. ("COSTA RICA LANDCO"), personally appeared before me in
[_____________________], personally known to me and known by me to be the
person who executed on behalf of Costa Rica Landco the Officer's Certificate
annexed hereto, who acknowledged the same to be [his/her]own free act and
deed and the free act and deed of Costa Rica Landco, and that he had the
necessary authority to do so. I DO FURTHER CERTIFY that [Name], Corporate
Secretary of Costa Rica Landco, personally appeared before me in
[_______________________], personally known to me and known by me to be the
person who executed on behalf of Costa Rica Landco the Certificate of
Corporate Secretary annexed hereto, who acknowledged the same to be [his/her]
own free act and deed and the free act and deed of Costa Rica Landco, and
that [he/she] had the necessary authority to do so.
Given under my hand and [notarial] seal this [_____] day of
[__________], 2001.
------------------------------
------------------------------
16
EXHIBIT D
FORM OF DISBURSEMENT CERTIFICATE
PriceSmart, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 5.03
---------------------------
I, [__________], the [Treasurer] of PriceSmart, Inc., a corporation
organized and existing under the laws of the State of Delaware, USA (the
"PRICESMART"), DO HEREBY CERTIFY that:
A. I am familiar with the terms of the Loan Agreement among PriceSmart,
PSMT Caribe, Inc. ("PSMT CARIBE"), ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Rica, S.A. ("PSMT
COSTA RICA"), Pricsmarlandco, S.A. ("COSTA RICA LANDCO"), each a
"BORROWER" and, collectively, the "BORROWERS", and Overseas Private
Investment Corporation ("OPIC"), dated as of [__], 2001 (the "LOAN
AGREEMENT") (capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the Loan Agreement);
B. Each of PSMT Caribe, PSMT Costa Rica, and Costa Rica Landco has
appointed PriceSmart as its attorney-in-fact for the purpose of executing
and delivering this Disbursement Certificate.
C. I have read the covenants, representations, warranties and agreements
of the Borrowers contained in the Loan Agreement and the IFC A Loan
Agreement and each of the Borrowers has been represented by counsel in
connection with the Loan Agreement and the IFC A Loan Agreement;
D. I have made or caused to be made such examination or investigation as
is necessary to enable me to express an informed opinion as to the
matters set forth below;
and pursuant to Section 5.03 of the Loan Agreement DO HEREBY CERTIFY that:
1. The representations and warranties set forth in Article III of the Loan
Agreement are true and correct in all material respects on the date hereof
as if made on the date hereof, and no Event of Default, and no event or
condition which with lapse of time or the giving of notice, or both, would
constitute an Event of Default, exists on the date hereof.
17
2. As of the date hereof, no circumstance exists, or change of law or
regulation of any governmental authority has occurred, that would have a
material adverse effect on (i) PriceSmart, (ii) the business, operations,
prospects, condition (financial or otherwise), or property of PriceSmart
or any other Person whose continuing viability is essential to PriceSmart,
(iii) the ability of the Borrowers or any other party to perform in a
timely manner their respective material obligations under any of the
Financing Documents, (iv) the validity or enforceability of any material
provision of any Financing Document, (v) the rights and remedies of OPIC,
if any, under any of the Financing Documents, or (vi) the Liens provided
to OPIC under the Security Documents;
3. Attached hereto as Exhibit A is a schedule setting forth the Project
costs to which the prior Disbursement have been applied, for which the
proceeds of this Disbursement are presently needed;
4. All conditions precedent to a disbursement under the IFC A Loan
Agreement have been satisfied as of the date of this certificate.
WITNESS my hand this [_____] day of [__________], 2001.
----------------------------
[Name]
Treasurer
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ )
) ss:
)
I, _____________________________, a [notary public in and for
_________________________], DO HEREBY CERTIFY that [Name], the Chairperson and
Chief Executive Officer of PriceSmart, Inc. ("PRICESMART"), personally appeared
before me in [_____________________], personally known to me and known by me to
be the person who executed on behalf of the Borrowers the Officer's Certificate
annexed hereto, who acknowledged the same to be [his/her] own free act and deed
and the free act and deed of the Borrowers, and that he had the necessary
authority to do so. I DO FURTHER CERTIFY that [Name], Corporate Secretary of
PriceSmart, personally appeared before me in [_______________________],
personally known to me and known by me to be the person who executed on behalf
of PriceSmart the Certificate of Corporate Secretary annexed hereto, who
acknowledged the same to be [his/her] own free act and deed and the free act and
deed of PriceSmart, and that [he/she] had the necessary authority to do so.
Given under my hand and [notarial] seal this [_____] day of
[__________], 2001.
------------------------------
-----------------------------
19
EXHIBIT E
PRIVILEGED BUSINESS INFORMATION
SELF MONITORING QUESTIONNAIRE FOR
INSURANCE & FINANCE PROJECTS
This form requests information from OPIC clients which is required by OPIC's
governing legislation. The information provided in this questionnaire will allow
OPIC to better assess the effects that OPIC-assisted projects have on the U.S.
economy and employment, as well as the environment and economic development
abroad. Complete responses to the collection of information in this form are
mandatory, per the Foreign Assistance Act of 1961, as amended, Section
231(k)(2). Client information contained in this questionnaire will be deemed
designated as privileged or confidential in accordance with OPIC's Freedom of
Information Act (FOIA) regulations (22 CFR part 706) and will be treated as
confidential to the extent permitted by the FOIA. An Agency may not conduct or
sponsor, and a person is not required to respond to, a collection of information
unless it displays a valid OMB control number with an expiration date that has
not expired.
PLEASE SEND COMPLETED FORM TO THE ATTENTION OF:
Overseas Private Investment Corporation
(An Agency of the United States Government)
Statutory Review Department
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇; ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
=========================================================================
INSTRUCTIONS: Please answer all questions as completely as possible. If space
is inadequate, please supply additional information on separate sheets of
paper and attach them to this form. For all questions, the term "Project"
refers to the NEW INVESTMENT associated with the OPIC insurance contract
and/or finance agreement identified by number above. If this investment is an
expansion of an existing enterprise, or otherwise only part of an enterprise,
only the INCREMENTAL effects directly related to and resulting from the new
investment should be provided.
=========================================================================
U.S. CONTRACT/
SPONSOR LOAN #
--------------------------------------- ----------------
FOREIGN
ENTERPRISE COUNTRY
-------------------------------------- ----------------
PROJECT
DESCRIPTION
---------------------------------------------------------------
NEW INVESTMENT
(FROM ALL SOURCES) AMOUNT ACTUALLY
IN FOREIGN INVESTED IN
ENTERPRISE $ FOREIGN $
ORIGINALLY ENTERPRISE TO
CONTEMPLATED DATE
---------------- -----------------
NOTICE: Public reporting burden for this collecting of information is estimated
to average three hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and maintaining the
data needed, and completing and reviewing the collection of information. Send
comments regarding this burden estimate or any other aspect of this collection
of information, including suggestions for reducing this burden to Agency Forms
Officer, Overseas Private Investment Corporation, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and to the Office of Information and Regulatory Affairs,
Office of Management and Budget, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
PRIVILEGED BUSINESS INFORMATION
PRIVILEGED BUSINESS INFORMATION
------------------------------------------------------------------------------------------------
1 Has the description of the Project changed since it was originally approved by OPIC?
No|_| Yes|_|
------------------------------------------------------------------------------------------------
If Yes, please indicate the changes:
------------------------------------------------------------------------------------------------
2 Has the Project become operational? Yes |_| No |_| If so, give date:__________________
------------------------------------------------------------------------------------------------
Starting Ending
3 Please specify the Project's most recently completed fiscal Month/Yr: Month/Yr:
year and USE DATA FROM THIS YEAR TO ANSWER THE FOLLOWING
QUESTIONS.
------------------------------------------------------------------------------------------------
4 What is the total value of remittances (dividends, profits, loans/interest, royalties,
etc.) from the Project?
------------------------------------------------------------------------------------------------
a. To the United States? $
--------------------------------------------------------------------------------------------
b. To other countries, excluding the U.S. and Host Country? $
------------------------------------------------------------------------------------------------
5 What was the value of the Project's final destination sales to: (IF MULTIPLE PRODUCT
LINES, PLEASE PROVIDE INFORMATION ON EACH ON SEPARATE SHEET. THIS QUESTION IS NOT
APPLICABLE FOR BRANCH BANKS.)
------------------------------------------------------------------------------------------------
a. The host country $
--------------------------------------------------------------------------------------------
b. The U.S. $
--------------------------------------------------------------------------------------------
c. Other countries (IN DESCENDING ORDER OF VALUE):
1. ___________________________________________ $________________
2. ___________________________________________ $________________
3. ___________________________________________ $________________
4. REMAINING SALES $________________
------------------------------------------------------------------------------------------------
6 Has there been any decrease in the number of U.S. employees of the Project's No|_| Yes|_|
investors (or affiliates) producing, processing, and/or supporting
goods/services comparable to those of the Project?
------------------------------------------------------------------------------------------------
If Yes, please explain the reason for the decrease:
------------------------------------------------------------------------------------------------
7 a. How much did the Project pay to the host government in duties, taxes, $
etc.?
--------------------------------------------------------------------------------------------
b. Were tax holidays in effect? No |_| Yes |_|
--------------------------------------------------------------------------------------------
c. What are the estimated duties lost related to import substitution of $
the Project?
------------------------------------------------------------------------------------------------
8 How many HOST COUNTRY NATIONALS were employed in the following categories:
------------------------------------------------------------------------------------------------
Management/Professional: employees Labor/Other: employees
------------------------------------------------------------------------------------------------
9 a. Have there been any changes in the Project or the environment which No Yes
have No Yes created new environmental, or occupational health & safety |_| |_|
issues?
(IF SO, PLEASE ATTACH A BRIEF DESCRIPTION OF THE CHANGES AND THE
MEASURES TAKEN TO ADDRESS THEM.)
------------------------------------------------------------------------------------------------
b. Labor conditions -- please check any that applied within the last 12 months:
1. Labor Union_________ 2. Collective Labor Agreement________ 3. Strike________
4. Age of Youngest Worker:
Less than 14 Yrs.________ Less than 15 Yrs.________ Less than 16 Yrs.________
5. Maximum Workweek Without Overtime: 40-44 Hrs. ________ 45-48 Hrs. ________
Greater than 48 Hrs. ________
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PRIVILEGED BUSINESS INFORMATION
PRIVILEGED BUSINESS INFORMATION
10.U.S. SUPPLIER AND PROCUREMENT INFORMATION: As indicated on the cover page,
the client data you provide is privileged business information that OPIC
treats as confidential, to the extent permitted by law. However, it is
important for OPIC to be able to demonstrate some of the effects of your
project. The historical U.S. supplier and procurement information in
Section A of this question is particularly useful for OPIC to illustrate
the specific benefits of your project for the U.S. economy. Unless you
provide an attached sheet with a compelling reason why this information
should not be made public, OPIC intends to use the information from
Section A in public statements and releases.
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TYPE OF GOOD
A. U.S. SUPPLIERS OR SERVICE MOST RECENT FISCAL YEAR
INITIAL OPERATIONAL
NAME OF SUPPLIER CITY STATE Please indicate PROCUREMENT(1) PROCUREMENT(2)
if used
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GENERAL
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$ $
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$ $
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$ $
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$ $
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$ $
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SMALL BUSINESS(3)
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$ $
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$ $
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$ $
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REMAINING PROCUREMENT $ $
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TOTALS $ $
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INITIAL PROCUREMENT OPERATIONAL PROCUREMENT
B. HOST COUNTRY PROCUREMENT
(MOST RECENT FISCAL YEAR) $_____________________ $_____________________
INITIAL PROCUREMENT OPERATIONAL PROCUREMENT
C. THIRD COUNTRY PROCUREMENT
(MOST RECENT FISCAL YEAR) $_____________________ $_____________________
11. PLEASE DETAIL ANY ADDITIONAL U.S. OR HOST COUNTRY BENEFITS OF THE PROJECT.
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I HEREBY REPRESENT THE INFORMATION PROVIDED IN THIS DOCUMENT IS COMPLETE
AND ACCURATE TO THE BEST OF MY KNOWLEDGE, AND THAT I AM AN AUTHORIZED
REPRESENTATIVE OF THE INVESTOR.
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Signature: Date: Telephone:
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Name and title:
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PRIVILEGED BUSINESS INFORMATION
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(1) Procurement using funds from initial project funding.
(2) On-going procurement funded by project revenues.
(3) As of 1998, small businesses are defined by OPIC as companies with annual
sales of less than $250 million, taking into account the consolidated sales of
the parent company. If more space is needed for small business suppliers,
include under "GENERAL" and denote with "(SB)" after supplier name, or attach
a separate sheet.
EXHIBIT F
INFORMATION TO BE INCLUDED IN ANNUAL REVIEW OF OPERATIONS
(See Section 6.06(h) of the Loan Agreement)
(1) SHAREHOLDINGS. Information on significant changes in share ownership of the
Borrowers, the reasons for such changes, and the identity of major new
shareholders.
(2) COUNTRY CONDITIONS AND GOVERNMENT POLICY. Report on any material changes in
local conditions, including government policy changes, that directly affect the
Borrowers (e.g. changes in government economic strategy, taxation, foreign
exchange availability, price controls, and other areas of regulations.)
(3) MANAGEMENT AND TECHNOLOGY. Information on significant changes in (i) the
Borrowers' senior management or organizational structure, and (ii) technology
used by the Borrowers, including technical assistance arrangements.
(4) CORPORATE STRATEGY. Description of any changes to the Borrowers' corporate
or operational strategy, including changes in products, degree of integration,
and business emphasis.
(5) MARKETS. Brief analysis of changes in the Borrowers' market conditions (both
domestic and export), with emphasis on changes in market share and degree of
competition.
(6) OPERATING PERFORMANCE. Discussion of major factors affecting the year's
financial results (sales by value and volume, operating and financial costs,
profit margins, capacity utilization, capital expenditure, etc.).
(7) FINANCIAL CONDITION. Key financial ratios for previous year, compared with
ratios covenanted in the Loan Agreement.