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SPANISH BUYER CREDIT AGREEMENT Signed on December , 2006 Between THE ACTING BY AND THROUGH ITS
« SECRETARIO DE ESTADO DE
FINANZAS »
As Borrower And FORTIS BANK S.A. SUCURSAL
EN ESPAÑA , as Agent and SOCIETE GENERALE, as Global Coordinator and
As Mandated Lead Arrangers |
CONTENTS
RECITALS 5
ARTICLE 1......... DEFINITIONS ......................................................................................... 6
ARTICLE 2......... AMOUNT OF THE SPANISH BUYER
CREDIT AGREEMENT.............. 10
ARTICLE 3......... CONDITIONS PRECEDENT FOR DISBURSEMENT .......................... 11
ARTICLE 4......... DISBURSEMENTS
........................... BORROWER’S
INSTRUCTIONS FOR PAYMENT............................... 13
ARTICLE 5......... REPAYMENT OF PRINCIPAL –
INTEREST .......................... 14
ARTICLE 6......... UNAVAILABILITY OF DEFENCES AS
AGAINST THE LENDER ........... 16
ARTICLE 7......... FEES ...................................................................................................... 17
ARTICLE 8......... CREDIT-INSURANCE PREMIUM........................................................... 18
ARTICLE 9......... TAXES, DUTIES LEVIES - COSTS
AND INCIDENTAL EXPENSES..... 19
ARTICLE 10....... REPRESENTATIONS OF THE BORROWER ..................................... 21
ARTICLE 11....... COVENANTS OF THE BORROWER ................................................... 23
ARTICLE 12....... LATE INTEREST..................................................................................... 24
ARTICLE 13....... INTERRUPTION OF THE LOAN -
........................... EVENTS OF
DEFAULT.......................................................................... 25
ARTICLE 14....... CHANGE IN CIRCUMSTANCES............................................................. 26
ARTICLE 15....... APPLICATION OF FUNDS RECEIVED BY
THE AGENT ..................... 27
ARTICLE 16....... PAYMENT CURRENCY - DOMICILIATION ........................................... 28
ARTICLE 17....... MISCELLANEOUS ................................................................................. 29
ARTICLE 18....... NOTICES ............................................................................................... 31
ARTICLE 19....... VOLUNTARY PREPAYMENT................................................................. 32
ARTICLE 20....... APPLICABLE LAW - JURISDICTION..................................................... 33
ARTICLE 21....... THE AGENT AND THE LENDERS......................................................... 34
ARTICLE 22....... DELEGATION......................................................................................... 37
ARTICLE 23....... ENTRY INTO EFFECT .......................................................................... 38
SCHEDULE 1.... DOCUMENTS TO BE PRESENTED BY THE
SUPPLIER
........................... TO THE AGENT
AND PAYMENT CONDITIONS.................................... 39
SCHEDULE 2.... FORM OF LEGAL OPINION (to be issued
by the “Consultor Juridico
...........................
SCHEDULE 3.... to be drafted if necessary........................................................................ 44
BETWEEN :
The
Mr Vicente Bengoa acting as Secretario de Estado de Finanzas, duly authorized
for the purposes hereof by a power of attorney from the President of the
(hereinafter
the "Borrower")
On the one part
AND
FORTIS BANK
S.A., SUCURSAL EN ESPAÑA a Spanish bank organised and existing as a public
limited liability company under the laws of the Kingdom of Spain its registered
office at Serrano 73, 28006 Madrid, Spain registered in the Registro Mercantil
de Sociedades of Madrid under the number
A-0021127- F, which is a branch of a
Belgian bank organised as a public liability company under the laws of the
Kingdom of Belgium
(hereinafter
the “Agent”,)
and
SOCIETE GENERALE, a French société
anonyme with a capital of 548.431.403,75 Euros with its registered office
located at 29 Boulevard Haussmann, 75009 Paris,
France, registered in the Registre
du Commerce et des Sociétés of Paris under the number B 552.120.222,
duly represented by Mr. . . .
(hereinafter
the “Global Coordinator”,)
and
FORTIS BANK
S.A., SUCURSAL EN ESPAÑA a Spanish bank organised and existing as a public
limited liability company under the laws of the Kingdom of Spain its registered
office at Serrano 73, 28006 Madrid, Spain registered in the Registro Mercantil
de Sociedades of Madrid under the number
A-0021127- F, which is a branch of a
Belgian bank organised as a public liability company under the laws of the
Kingdom of Belgium
(hereinafter the “Mandated Lead Arranger”)
and
SOCIETE GENERALE, a French société
anonyme with a capital of 548.431.403,75 Euros with its registered office
located at 29 Boulevard Haussmann, 75009 Paris,
France, registered in the Registre
du Commerce et des Sociétés of Paris under the number B 552.120.222,
duly represented by Mr. . . .
(hereinafter
the “Mandated Lead Arranger”,)
and
BNP PARIBAS, société
anonyme having its registered office in France, 16 boulevard des Italiens,
Paris 9ème, registered in the Register of Commerce and Companies of Paris under
number 662 042 449 represented by
…………………………………..
(hereinafter the “Mandated Lead Arranger”)
(hereinafter collectively the
"Lenders" and individually a "Lender")
On the second part
RECITALS
1.
On November 13, 2006, the Dominican Republic acting by and
through the “Oficina para el Reordenamiento del Transporte “ “OPRET” (hereinafter
the “Buyer” as defined in greater detail in Article 1 below) concluded with
Sampol Ingenieria y Obras, S.A., calle Gremio Boneteros N° 48, 07009 Palma de
Mallorca - Espana, a contract for the “suministro de electricidad normal y de
emergencia a las facilidades del SITRAM” for the underground system for the
city of Santo Domingo (hereinafter the “Commercial Contract”). The contract
price amounts to
EUR 12,036,673.90 (twelve million thirty-six thousand and six hundred seventy
three Euros and ninety cents) (the”Commercial Contract Price”) and is split
between:
Ø
A Spanish and Assimilated Share could amount to EUR
10.422.201,35 (ten million four hundred twenty two thousand two hundred and one euros and thirty five
cents)
Ø
A Local Share price could amount to EUR 1.614.472,55 (one million six hundred
fourteen thousand four hundred and seventy two euros and fifty five cents)
2.
The Commercial Contract Price shall be financed through :
Ø
A Long Term Commercial Loan amounting to EUR
1.786.471,73 ( one million seven hundred eight six thousand four hundred
seventy one euros and seventy three cents) to be granted by the Lenders in
order to finance the advance payment up to 15% of the Commercial Contract Price
up to EUR 1.614.472,55 and the 15% of the credit insurance premium payable to
CESCE up to EUR 171.999,18
Ø
The present Spanish Buyer Credit amounting to EUR
11,396.863,39 (eleven million three
hundred ninety six thousand eight
hundred and sixty three euros and thirty nine cents), to be granted by the
Lenders in order to finance (i) up to 85% of the Spanish and Assimilated Share,
(ii) the Local Share limited to the 15% of the advance payment of the Spanish
and assimilated Share and (iii) 85% of the credit insurance premium payable to
CESCE.
3.
Subject to the signing of the Long Term Commercial
Loan Agreement with the Lenders, the Lenders are willing to provide a Spanish
Buyer Credit Agreement on the terms and conditions set forth below,
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS :
ARTICLE 1 – DEFINITIONS
For the purposes hereof, the following terms,
where capitalised, shall have the following meaning:
“Agent” means
Fortis Bank S.A. Sucursal en España
"Agreement”: the
present Spanish Buyer Credit Agreement, including its Schedules as well as
later amendments thereto, if any;
“Available Facility” the undisbursed
portion of the Credit Facility at any time;
“Available Commitment” in relation to
any Lender at any time and save as otherwise provided herein, its Commitment at
such time less the aggregate of its portions in each Disbursement made to the
Borrower hereunder
"Banking Day" any day
when the central offices of banks are open for all types of business for the
entire day in Paris and Madrid, Saturdays and Sundays excluded ; (For day-to-day management : Disbursements,
payment dates of fees and intermediate interest, Payment Dates of principal or
interest) :
“Spanish and Assimilated Share” shall have the meaning given in Article
2.1
"Buyer”: The
CARI shall
mean the “Reciprocal Interest Make Up Agreement” to be signed with ICO to fix
the interest rate to be applicable during the repayment period
CESCE the Spanish
public institution for insurance of export credits which is subject to the
provisions of Law 10/1970 of 4 July (as amended), Decree 3138/1971 of 22
December, and any applicable legislation developing such regulations
“Closing Date” the date
on which this Agreement is executed by the Borrower, the Agent and the Lenders
"Commercial Contract”: has the meaning given
to it in the recitals hereof, including its Schedules as well as later
amendments thereto, if any;
“Commitment” in relation to any Lender and at any
time, the aggregate of:
(a)
any
amounts agreed to be financed by it under the Credit Facility; and
(b)
the
amounts transferred to it pursuant to Section 17(8) (Assignments), as the same may be varied as a result of subsequent
assignments;
"Credit Facility”: subject
to Article 8.3 herein-below, the maximum amount in principal as determined by
Article 2 available for Disbursement by the Borrower under the present
Agreement
“Date of Coming Into Force
of the Commercial Contract" : the date when the Commercial
Contract has come into force under the conditions laid down in Article 2 of the
Commercial Contract ;
"Disbursement”:..................................... a payment pursuant to
Article 4;
“Disbursement Period”........................ the
period starting on the Effective Date and ending 24 months after the Date of
Coming into Force of the Commercial Contract provided however that, the period
can be extended upon request of the Borrower and at the Agent’s discretion ;
“Effective Date”.................................... the date on
which the conditions as set out in Article 3.1.1 and 3.1.2 will be fulfilled at
the Agent’s satisfaction;
"EONIA" (Euro OverNight Index Average):
weighted average overnight rate calculated by the European Central Bank on all
overnight unsecured lending transactions carried out in the euro area interbank
money market and reported by the panel of reference banks selected for the
calculation of the EONIA.
This
annual rate is published on page EONIA of the Reuters screen or any other page
as may replace such page, by the Banking Federation of the European Union prior
to the start of operations on the TARGET DAY following its reporting to the
European Central Bank (D+1) by the reference banks;
"EURIBOR" (EURO InterBank Offered Rate):
the
percentage rate per annum determined by the European Union Banking Federation
for the relevant period displayed on page EURIBOR01 of the Reuters screen or
any other page which may be substituted for it (and if such page or service
ceases to be available, the Agent may specify another page or service
displaying the appropriate rate), being the average of prices supplied by the
sample reference banks participating in the calculation of EURIBOR and
published at 11.00 am Brussels time on the same day;
"Euro(s)" or "EUR": the
single currency of several member states of the European Union replacing their
national currencies under the conditions of the European Community Treaty;
"External Indebtedness"...................... means indebtedness which is payable (or may be
paid) in a currency other than the current lawful currency in the Dominican
Republic, or where such currency is payable to the Lenders and any person
domiciled, resident or having its registered office or principal place of
business outside the Dominican Republic.
“Facility Office”..................................... means any
branch, representative or other office of a Lender for the time being, wherever
located;
"Final Disbursement Date”: the date which is 24 months
after the Date of Coming into Force of the Commercial Contract;
“First Repayment Date” the date which is 6
months after the Repayment Starting Date;
ICO: shall mean the
Spanish “Instituto de Crédito Oficial” with its registered offices at Paseo del
Prado 4,
"Interest Period”: any period
between a Payment Date (included) and the following Payment Date (excluded);
however for any Disbursement the first Interest Period shall run from the date
of this Disbursement (included) to the following Payment Date (excluded);for
the calculation of the interest on delayed payments due according to the terms
of the Agreement, the interest shall be computed on a day to day basis;
“Instructing Group” (a) if there are no Outstanding Amount,
a Lender or Lenders whose Commitments aggregate more than 66% of the total
Commitments (or, if the total of such Commitments has been reduced to zero, aggregated
more than 66% of the total thereof immediately prior to the reduction); and
(b) at any
other time, a Lender or Lenders whose participations in Outstanding Amount
aggregate more than 66% of the Outstanding Amount;
“Lender” Société
Générale, BNP Paribas and Fortis Bank and any
other financial institutions which becomes a party hereto pursuant to an
assignment or transfer in accordance with Section 17.8
“Local Share” the
goods and services originating from the Borrower’s country, incorporated in the
Commercial Contract price;
“Long Term Commercial Loan” a portion of the Long
Term Commercial Loan Agreement signed in December, 2006 between the Borrower and the Lenders
for an amount of EUR 11,336,471.73 of which EUR 1.786.471,73 are related to the Commercial Contract;
“Lead Mandated Arranger” means individually Société
Générale Paris, BNPParibas Paris and Fortis Bank
“Margin”: 0.125% p.a. (zero point one hundred twenty-five per cent)
per annum;
"Outstanding Amount”: at any time the amount
in principal of the Credit Facility disbursed and not repaid by the Borrower;
"Payment Date”: - during the Preliminary Period, any of the dates
calculated every six (6) months as from the first Disbursement;
-
the Repayment Starting Date ;
-
during
the Repayment Period, any of the dates calculated every six (6) months from the
Repayment Starting Date ;
"Preliminary Period”: the period from
the date of the first Disbursement (included) to the Repayment Starting Date
(excluded);
"Repayment Period”: the period from
the Repayment Starting Date (included) to the last Payment Date;
“Repayment Starting Date the date agreed by the
Borrower and the Agent for the beginning of the Repayment Period being 30
months from the Date of Coming into Force of the Commercial Contract .
"Supplier”: means
Sampol Ingenieria y Obras, S.A., calle
Gremio Boneteros N° 48, 07009 Palma de Mallorca - Espana,
,
|
"TARGET": (Trans-European Automated Real-time Gross settlement Express
Transfer) |
European
real time gross settlement system managed by the European Central Bank and
linking the real time gross settlement systems of the Member States of the
European Union; |
"TARGET Day": a day
when the TARGET (Trans-European Automated Real-Time Gross settlement Express
Transfer) system is open;
“Taxes” all
present and future taxes, levies, imposts, duties, fees or charges of a similar
nature together with interest thereon and penalties in respect thereof;
“VAT” shall
be construed as a reference to value added tax including any similar tax, which
may be imposed in place thereof from time to time.
Words importing the plural shall include the singular and vice versa.
ARTICLE 2 – AMOUNT OF
THE SPANISH BUYER CREDIT AGREEMENT
2.1 The Lenders
shall make available to the Borrower, under the terms and conditions set forth
herein, a Credit Facility in reference to 2.1.1, 2.1.2 and 2.1.3 in a maximum amount of
EUR 11.396.863,39 (eleven million
three hundred ninety six thousand eight hundred and sixty three euros
and thirty nine cents ), subject to the provisions of Article 8.3 intended to:
2.1.1 finance,
up to a maximum amount of EUR 8.858.871,15
(eight million eight hundred fifty eight thousand eight hundred and
seventy one euros and fifteen cents),
corresponding to 85 % of the Spanish and Assimilated Share of the Commercial
Contract.
Spanish and Assimilated Share shall mean:
2.1.1.1 the goods and
services of Spanish origin included in the Contract Price of the Commercial
Contract,
2.1.1.2 the goods and
services (including transport and insurance of any nature) from any country
other than the Borrower's country or Spain, incorporated in the supply by the
Supplier, and which have been the subject matter of sub-contracting agreements
performed under the liability of the Supplier within the limits and conditions
determined by the Spanish Authorities,
2.1.2
finance the Local Share, up to a maximum amount of EUR 1.563.330,20 ( one
million five hundred sixty three thousand three hundred and thirty euros and
twenty cents) corresponding to the 15%
of the Spanish Assimilated Share of the Price of the Commercial Contract.
2.1.3
to repay to the Agent up to an estimated amount of EUR
974.662,04 (nine hundred seventy four thousand six hundred and sixty
two euros and four cents), 85% of the
credit-insurance premium payable to CESCE with regards to the payments made by
the Agent under Article 2.1 and financed in accordance with Article 8.
ARTICLE 3 – CONDITIONS
PRECEDENT FOR DISBURSEMENT
No Disbursement shall be made unless
the following conditions have been fulfilled to the satisfaction of the Agent:
3.1
Upon receipt of the Conditions Precedent 3.1.1 and
3.1.2 below by the Agent within 180 (one hundred and eighty) days following the
execution hereof, the Agent will declare the Effective Date:
3.1.1 copy
of the signed Commercial Contract and of all its Annexes, in terms satisfactory
to the Agent;
3.1.2 copy
of the decision of the relevant authorities of the Borrower's country including
the Congress ratification, required regulatory approvals, the publication in
the Official Gazette and the registration by the “Secretaria de Estado de
Finanzas”, authorising the Borrower to incur liability under the terms and
conditions of the present Agreement
3.2
The Conditions Precedent listed from 3.2.1 to 3.2.5 below
shall be received by the Agent within 30 (thirty) days from the Effective Date.
3.2.1
legal opinion issued by the “Consultor Jurídico del Poder Ejecutivo”, substantially in the form
attached hereto as Schedule 2;
3.2.2
evidence of the authority of the Borrower to execute,
deliver, perform and observe the terms and conditions of the Agreement and any
related document, and authority for each person who, on behalf of the Borrower,
will sign the Agreement and related documents, or will act as the Borrower’s
representative ;
3.2.3
authenticated sample of the signature of any
authorised representative of the Borrower (in particular the signatory hereof)
;
3.2.4
authenticated sample of the signature of any
authorised representative(s) of the Borrower, the Buyer and the Supplier for
the signing of the payment document as described in Schedule 1 hereinafter;
3.2.5
If any, copy
of all environmental permits and licenses;
3.3
Moreover, no Disbursement shall be made unless the
Agent receives the following documents and the following conditions be
fulfilled to its satisfaction:
3.3.1
a certificate issued jointly by the Buyer and the
Supplier certifying that the Commercial Contract is in force and stating the
Date of Coming into Force;
3.3.2
Evidence of the payment to the Supplier’s account of
the 15% advance payment provided in the Commercial Contract;
3.3.3
A credit-insurance policy from CESCE for the benefit
of the Agent under terms satisfactory for the Agent and this credit-insurance policy has become and
continues to be effective
3.3.4
delegation agreement if necessary;
3.3.5
no default and Event of Default exists and no material
adverse effect has occurred;
3.3.6
the payment by the Borrower of all amounts due under
the Article 7 and Article 9 hereof.
3.3.7
the CARI issued by ICO has become and continues to be
effective in accordance with its respective terms before the commencement of
the repayment period
ARTICLE 4 –
DISBURSEMENTS - INSTRUCTIONS FOR PAYMENT BY THE BORROWER
4.1 Any
Disbursement may be made only by payments to the Supplier or the Agent.
Therefore, the Borrower mandates the Agent to:
4.1.1 pay
in his name and on his behalf to the Supplier any amounts owed to it against
the delivery by each Supplier to the Agent of the documents provided under
Schedule 1 verified in compliance by the Lender ;
4.1.2 repay
the Lenders the credit-insurance premium due to CESCE under Article 8
hereinafter.
4.2
This mandate is irrevocable.
4.3
The Borrower shall provide an authorization to the
Agent to effect the Disbursement. Within two (2) Banking Days following the
delivery of all the document provided in Schedule 1 and after they have been
duly verified and declared in compliance, the Agent shall confirm, for each
Disbursement, to the Borrower (Agent’s Confirmation) that a Disbursement could
be made. No later than five (5) Banking Days after the receipt of the Agent’s
Confirmation (the Declaration Period) the Borrower shall submit to the Agent a
declaration (the Declaration) either authorizing or disputing the Disbursement
which the Agent shall acknowledge two (2) Banking Days of receipt. If no
Declaration has been received by the Agent during the Declaration Period, the
authorization for the Disbursement shall deemed to have been given.
4.3
The payments shall be made by the Agent to the account
of the Supplier designated by it within five (7) Banking Days following the delivery to
the Agent of the documents provided in Schedule 1 provided they have been
verified in compliance by the Agent.
4.4
The Agent reserves the right to refuse any
Disbursement of an amount less than EUR 1,000,000, except for the final
Disbursement.
4.4 The
Agent shall inform the Direccion General de Crédito Publico, (attention to the
Secretario de Estado de Finanzas, fax (809) 687-5170 or 687-6561) of the amount
and date of the Disbursement.
4.5 Verification
by the Agent of the documents provided under Schedule 1 shall be limited to
checking their apparent compliance as defined under the Uniform Customs 500 and
Practices for Documentary Credits published by the International Chamber of
Commerce.
4.6 No Disbursement shall be made after
the Final Disbursement Date.
4.7
Each Lender shall participate through its Facility
Office in each Disbursement made pursuant this Article 4 in the proportion
which its Available Commitment bears to the Available Facility immediately
prior to making the Disbursement.
ARTICLE 5 – REPAYMENT OF THE PRINCIPAL - INTEREST
5.1 Repayment of
principal
Any
Disbursement generates a right to repayment for the Lender.
Any
Disbursement shall be repaid in 20 (twenty) equal and consecutive six monthly
instalments, the first one falling due on the date which is 6 (six) months
after the Repayment Starting Date.
Once all
Disbursements have been made, the Agent will send a repayment schedule to the
Borrower.
5.2 Interest
The claim of the Lender under any Disbursement shall bear interest from
the date of such Disbursement and until the last Payment Date.
The interest shall be calculated on the Outstanding Amount on the exact
number of days of any Interest Period and on the basis of a year of 360 days.
The interest shall be payable at the end of the period at any Payment Date.
5.2.1 During the Preliminary
Period
The interest shall be calculated on the six
month EURIBOR rate with the exception of interest due under any first Interest
Period where such period is less than six months.
In this case the interest shall be calculated on
the basis of the 1, 2, 3, 4 and 5 month EURIBOR rate according to the duration
of such Interest Period except in the event of an incomplete period (1) where
the closest EURIBOR rates shall be used to carry out an interpolation (2)
according to banking practice.
The applicable EURIBOR rate shall be the rate in
force two TARGET Days prior to the first day of the relevant Interest Period
(D-2). This rate shall be increased by the Margin.
The Agent shall
notify the Borrower, by fax, no later than 8 (eight) Banking Days after any
Disbursement of the interest rate to be applied to the first Interest Period of
this Disbursement.
Similarly, the
Agent shall notify the Borrower, by fax, no later than 8 (eight) Banking Days
after the beginning of any Interest Period of the interest to be applied to
such Interest Period.
(1) Example
of incomplete period : (a) 1 month and 15 days , (b) 4 months and 10
days
(2)
Examples of interpolation :
a) 1
month and 15 days : EURIBOR 1 Month + (EURIBOR 2 Month – EURIBOR 1 Month) x
15/30
b) 4
months and 10 days : EURIBOR 4 Month + (EURIBOR 5 Month – EURIBOR 4 Month) x
10/30
For any Interest Period, the Agent shall draw up a statement of interest due and send it to the Borrower no later than fifteen (15) days before any Payment Date.
Events
preventing the determination of EURIBOR
Where
modifications arise affecting the determination of EURIBOR referred to in this
Agreement or of any other rate which is substituted for it and in the event of
disappearance of this rate or this rate and the substitution of a rate of the
same nature or equivalent, and in the event of modification affecting the
organisation publishing it, or in the conditions of publication the rate or
rate arising out of this modification or substitution shall automatically
apply.
In the event of
disappearance of EURIBOR or any other rate which may be substituted for it, and
in the absence of a replacement rate, the Agent shall inform the Borrower and
the parties shall consult in order to determine by common agreement a new rate.
In any event,
the application of any new rate shall be retroactive from the date of
modification of the disappearance or the termination of publication of EURIBOR
or any other rate which may be substituted for it.
Should no agreement be reached within 15 (fifteen) calendar days from
the date of the notification sent to the Borrower, the Borrower shall
immediately repay all amounts due under this Agreement in principal, interest,
fees, costs and ancillary expenses and any costs incurred by the Agent by such
repayment, it being agreed that the interest payable from the disappearance of
the EURIBOR or any other rate which may be substituted for it, or the publication
shall be determined at a fixed rate equal to the last Interest Rate published
on the Banking Day preceding the said event increased by the Margin
5.2.2 During the Repayment Period
During the
Repayment Period, the interest shall be computed at the Commercial Interest
Reference Rate (“C.I.R.R.”) according to OECD Consensus to be established by
the ICO in the CARI.
Within ten days
of the last Drawing or on the Final Disbursement Date, the Agent shall send to
the Borrower a repayment schedule specifying the amounts of principal and
interest due to the Lenders on each Payment Date.
The Payment
Dates and the amounts so determined may be modified by the Agent pursuant to
the provisions of this Article 5.
Special
provisions concerning Payment Dates
Any Payment
Date which is not a Banking Day shall be postponed to the following Banking Day
and shall entail no modification of the following Payment Dates.
In such cases,
the statement of interest shall be completed for the exact number of days of
the modified Interest Period.
One month
before the postponed Payment Date, the Agent shall send the Borrower a
statement showing the additional amount of interest owed by the Borrower on the
Payment Date.
ARTICLE
6 – UNAVAILABILITY OF DEFENCES AS AGAINST THE LENDER
6.1 The
Borrower acknowledges that its covenants under this Agreement are independent
and separate from the Commercial Contract and that their performance may in no
case be affected by any difficulty which may arise in the relations between the
Supplier and the Buyer under the Commercial Contract or for any other reason.
6.2 The
Borrower waives the right to set off where it considers that it holds any claim
against the Lenders.
ARTICLE 7 - FEE
Arrangement
Fee
The Borrower shall pay the Agent an Arrangement Fee at a rate of 0.30% (zero point
thirty per cent) flat.
It shall be calculated on the amount of the Credit Facility as defined
in Article 2.1.
It shall be payable in full within 30 days from the Effective Date, upon
production by the Agent to the Borrower of the corresponding statement.
SECTION 8 – CREDIT
INSURANCE PREMIUM
8.1 The premium owed to CESCE
under the credit-insurance policy taken out by the Agent shall be paid by the
Borrower.
8.2 This premium shall be payable
in full at the receipt of the CESCE’s debit note corresponding to the premium
due on (i) the amount of the Spanish and Assimilated Share, (ii) the amount of
the Local Share as mentioned respectively in Article 2.1.1 and 2.1.2.
8.3 At
the Borrower’s request, the Lenders have agreed to finance the premium due to
CESCE by increasing the amount of the Credit facility accordingly. The amount
given in Article 2 of the Agreement shall be automatically increased by the
amount of the premium, which would result in an increase by a corresponding
amount in the total amount of the Credit Facility.
These premium shall be paid to CESCE by Disbursement of the Credit Facility, in accordance with Article 4 of the Agreement
8.4
It is specially understood that the premium is not
reimbursed by CESCE in case of prepayment.
ARTICLE 9 – TAXES, DUTIES LEVIES - COSTS AND INCIDENTAL EXPENSES
9.1 Taxes
9.1.1 All
taxes and other tax amounts (including, where applicable, any stamp duties and
registration fees), payable upon the signature and/or the performance of this
Agreement.
9.1.2 The
Borrower agrees that all payments incumbent upon it under this Agreement shall
be made net of all taxes and withholdings.
If the Borrower
is required by law, tax treaty or regulation of any relevant revenue authority,
to make a deduction or a withholding on the payments to be made pursuant to
this Agreement the Borrower expressly agrees to increase the said payments in
such a manner that after deduction of such taxes or withholdings, the Agent
shall receive an amount in Euros equal to the amount which they would have
received in the absence of such a deduction.
The Borrower
expressly agrees to remit to the Agent within 2 months from the payment of the
amount subject to withholding a document from the local Tax Authority or from
the paying Agent of such amounts and certifying the payment of the
corresponding withholding tax.
If the Borrower
fails to perform its obligations under this Article, the Agent may in
accordance with Article 13 below, interrupt the Disbursements of the Credit
Facility.
9.2 Costs
and Incidental Expenses
The Borrower agrees to pay directly or to reimburse the Agent, upon
first demand, all costs, expenses and fees incurred by the Agent (including
travel and accommodation expenses, translation costs and transport and
telecommunication, fees and expenses of lawyers, consultants and experts)
incurred by :
9.2.1 the
preparation, negotiation, execution and implementation of this Agreement, its
Schedules and any other document related thereto ;
9.2.2 the
monitoring of the Credit Facility, legal opinions and any other document
attached thereto ;
9.2.3 any
modification of this Agreement, legal opinion or any document related thereto ;
9.2.4 (a)
the preservation by the Lenders of their rights under this Agreement, and any
document related thereto, (b) the non-performance by the Borrower of its
obligations under this Agreement, and any document related thereto; (c)
acceleration of the Outstanding Amount ,(d) preservation by the Lenders of
their rights of the risk mitigation instrument and (e) collection by the
Lenders of their claims ;
Costs, expenses and fees incurred by
the Agent in the events listed in 9.2.1; 9.2.2. and 9.2.3. above shall be
previously approved by the Borrower and they will be capped to EUR 20.000.
9.3 Cash
Management Costs
The Borrower shall immediately pay to the Agent the
various expenses, costs and breakage costs incurred by acceleration or
voluntary prepayment of all or part of the debt, in particular any possible
loss which may result for the Lenders, from the difference between the
refinancing costs and the expected reinvestment rate on the money market for
the expected funds concerned by acceleration.
Since
the Agent commits himself irrevocably vis a vis the Spanish Authorities in
charge of monitoring the fixed rate of interest, all advanced payments will be
subject to the payment of an indemnity by the Borrower.
This
indemnity will be determined, in accordance with the Spanish Authorities, by
taking into account the differential between the rate of interest of the credit
and the prevailing market yield for each advanced repaid maturity and applied
to the corresponding remaining residual period.
Each
of those rates differentials will be applied to the amount of the corresponding
advanced repaid maturity on the period from said repayment in advance till the
original maturity date.
The
net present value of each corresponding amount resulting from above calculation
will be determined at the corresponding market yield.
In case
the cumulated amount of such present values is negative, no indemnity shall be
due by the Borrower.”
The
Borrower shall compensate the Lenders for these sums immediately upon receipt
of supporting proof of such costs and losses given by the Agent.
ARTICLE 10 – REPRESENTATIONS OF THE BORROWER
10.1 The Borrower represents that :
10.1.1 the Credit Facility constitutes and
will constitute direct and unconditional External Indebtedness of the Borrower
and ranks and will rank at least pari passu with all other unsecured External
Indebtedness ;
10.1.2 according
to the Constitution of the
10.1.3 it
has obtained from the relevant Dominican authorities all the licences permits or approvals
required under the law of the Dominican Republic (including the Congress ratification, required regulatory
approvals, the publication in the Official Gazette and registration by the
“Secretaria de Estado de Finanzas” and regulations concerning financial
relations with foreign countries), for the validity of this Agreement and
authorising their execution and their performance, (including the right to
acquire and transfer the US Dollars required for the performance by the Borrower
of its repayment obligations under this Agreement);
10.1.4 the
Buyer has obtained all permits, licences, or authorisations required for the
execution and performance of the Commercial Contract ;
10.1.5 this
Agreement has been duly executed and any obligation contained therein
constitutes a valid and enforceable undertaking by the Borrower;
10.1.6 the execution of this Agreement and the performance of any obligation
arising therefrom is not in conflict with and does not breach any provision of
its Laws and does not breach of any of its obligations under any agreement or
undertaking to which it is party;
10.1.7 the
execution and performance of this Agreement is not contrary to public policy
nor any law or regulation applicable to the Borrower ;
10.1.8 no
stamp, registration or authorisation whatever shall be required as regards this
Agreement (a) to ensure the validity of the obligations contained therein and
(b) to produce such documents in evidence in the Dominican Republic and to
obtain their enforcement ;
10.1.9 the
Borrower is not in default in the payment or performance of any of its payment
obligations for or in respect of its External Indebtedness and no creditor is
entitled to accelerate payment of its debts as a result of a default by the
Borrower ;
10.1.10 the Borrower is involved in no legal, arbitration or administrative
proceedings, the result of which could affect its creditworthiness, or
jeopardise the performance of its obligations under this Agreement;
10.1.11 all
information supplied by the Borrower to the Lender under this Agreement is
accurate and complete and the Borrower is not aware of any information which,
had it been disclosed to the Lender, would have modified the decision of a
Lender to grant the Credit Facility;
10.1.12 this
Agreement is legal act governed by commercial law (acta de comercio);
10.1.13 the
Borrower has duly waived any immunity from jurisdiction, execution or
enforcement which it enjoys at present or may enjoy;
10.1.14 the
Borrower has validly elected Spanish law to govern its obligations under this
Agreement;
10.1.15 the
Borrower has validly submitted to the jurisdiction to the Court of Commerce of
10.2 The
representations hereinabove shall be deemed renewed by the Borrower on each
Payment Date.
ARTICLE 11 – COVENANTS OF THE BORROWER
The Borrower, until such time it is
fully discharged by the Lender with respect to the terms of this Agreement,
undertakes:
11.1 not to revoke
or change the authority given under Article 4.1.1 without express consent by the
Agent and that of the Supplier ;
11.2 not to revoke
or modify the mandate given under Section 4.1.2 without express consent by the
Agent;
11.3 to
comply with the applicable laws and regulations of its country, those which may
enter into force subsequent to the execution of this Agreement where
non-compliance could directly or indirectly affect the due performance of this
Agreement;
11.4 to
obtain and renew all authorisations required to perform its obligations under
this Agreement;
11.5 to
ensure that the Buyer
11.5.1 obtains and
maintains all authorisations which are required to perform its obligations
under the Commercial Contract ;
11.5.2 shall inform
the Agent of any provision that could alter the Commercial Contract including
those concerning the parties to the Commercial Contract, the purpose, the
price, the distribution of this price, the performance dates and more generally
any provision of the Commercial Contract which may affect the conditions of
Disbursement of the Credit Facility;
11.5.3 agrees to
and facilitates inspection by the representatives of the Agent and pays the
related travel expenses;
11.6 to inform the
Agent promptly of :
11.6.1 the
occurrence of any event likely to constitute an event of acceleration ;
11.6.2 the
occurrence of any event likely to affect the accuracy of, or modify, the
representations of the Borrower ;
11.6.3 the
occurrence of any event likely to affect the due performance of this Agreement;
11.6.4 any
negotiations undertaken with any of its creditors with a view to postponing or
restructuring any of its debts.
11.7 to supply to
the Agent any additional information which the Agent may request.
ARTICLE 12 – LATE
INTEREST
12.1 Any
amount payable by the Borrower under this Agreement shall automatically bear interest,
from the date it is payable until its actual payment, at a rate equivalent to
the EONIA increased by 2% p.a. (two percent per year).
In any case,
this rate may not be less than the rate fixed pursuant to Article 5.2 of the
Agreement, including the Margin, increased by 2% p.a.(two percent per year).
12.2 In
the event of any modification affecting the determination of the EONIA, the
disappearance of this rate or its substitution by another index of similar or
equivalent nature for it, any modification affecting the organisation
publishing it, or in the conditions of its publication, the index resulting
from such modification or such substitution shall be applied automatically.
In any case,
the application of any new rate shall be retroactive from the date of
modification, disappearance or cessation of publication of the EONIA or of any
other index that may be substituted for it.
12.3 Late
interest shall be calculated on the basis of the exact number of days on the
basis of a year of 360 days.
12.4 Late
interest shall be payable upon first demand in writing by the Agent.
ARTICLE 13 – INTERRUPTION
OF THE LOAN – EVENTS OF DEFAULT
No Disbursement may be made and
payment of all amounts owed by the Borrower under this Agreement may be
accelerated automatically upon simple written notification by the Agent to the
Borrower, without further formality upon the occurrence of any of the following
events:
13.1 The Borrower fails to pay at
the due date any amount payable under this Agreement;
13.2 The
Borrower fails to perform any of its obligations or fails to comply with any of
its undertakings made under this Agreement;
13.3 any
present or future External Indebtedness incurred or guaranteed by the Borrower
other than this Spanish Buyer Credit Agreement, becomes due and payable prior
to the stated maturity thereof or is being unpaid ;
13.4 A
representation made by the Borrower under this Agreement or a document supplied
by the Borrower under this representation is or becomes inaccurate or
incomplete;
13.5 The
Borrower, as a result of undertakings other than those arising out of this
Agreement fails to perform or comply with any payment obligation or any of the
Borrower’s creditors is entitled as a result of the default by the Borrower, to
accelerate payment of its debts;
13.6 The
Borrower is subject to legal, arbitration or administrative proceedings likely
to affect its creditworthiness, or jeopardise the performance of its
obligations under this Agreement;
13.7 The
Borrower suspends payment of all or part of its External Indebtedness or
undertakes with any of its creditors negotiations with a view to restructuring,
rescheduling or refinancing all or part of its debt,
13.8 Any
governmental measure or decision is made or any event occurs in the country of
the Borrower, or in any third country through which payments are made, which
prevents or may prevent the payment by the Borrower of the amounts due under
this Agreement ;
13.9 The
Commercial Contract is suspended, terminated or rescinded, for any reason, or
is the subject of arbitration or legal proceedings.
13.10 The
Credit Facility doesn’t constitute any more a direct and unconditional External
Indebtedness of the Borrower and doesn’t rank any more pari passu with all other unsecured External Indebtedness of the
Borrower.
13.11 The
credit-insurance policy delivered by CESCE to the Agent is modified, suspended,
terminated or rescinded.
ARTICLE 14 – CHANGE IN
CIRCUMSTANCES
14.1 The
provisions of this Agreement have been determined on the basis of economic,
financial, legal, tax and monetary data available at the date of execution of
this Agreement in the countries where the registered office of the Lenders and
the Borrower are situated, or the countries through which payments are made,
and the international economic and financial conditions at the same date.
14.2 Where,
as a result of any new law or regulation, or any amendment or construction of
such law or regulation by a relevant authority, whether such law, regulation or
authority be Spanish, European or foreign, it becomes illegal or impossible for
the Lender to maintain its participation in this Agreement :
14.2.1 the
Agent shall notify the Borrower of the occurrence of such new circumstances. No
Disbursement may be made subsequent to the date of such notification;
14.2.2 the
Borrower and the Agent shall consult to an amicable solution permitting the
performance of this Agreement to be continued ;
14.2.3 should
no such agreement be reached with thirty (30) calendar days following
notification above, the Agent shall notify the Borrower of the termination of
its obligations under this Agreement and shall require the immediate repayment
of all amounts due by the Borrower to the Lenders under this Agreement,
increased by any cash management costs entailed by such prepayment.
14.3 Where
as a result of any new law or regulation, or any modification or construction
of such law or regulation by a relevant authority, whether such law, regulation
or authority be Spanish, European or foreign, the Lenders are subject to any
tax, monetary, financial or banking measure entailing an increase in the cost
of its participation in this Agreement (resulting, for example, from mandatory
reserves or deposits, equity capital or liquidity or other ratios, any tax or
other levy with the exception of corporation tax) or resulting in a reduction
in their remuneration or where such reduction in remuneration results from a
court decision, the following provisions shall apply :
14.3.1 the
Agent shall notify the Borrower of the occurrence of such new circumstances. No
Disbursement may be made subsequent to the date of such notification;
14.3.2 the
Borrower may elect :
a) to request the Lenders to
maintain their participation in this Agreement by expressly undertaking to
fully pay the increase in cost of such participation or the reduction of their
remuneration under this Agreement ;
(b) to consult the Agent in order to find a new
arrangement.
14.3.3 should
no such agreement be reached with thirty (30) calendar days following
notification above, the Agent shall notify the Borrower of the termination of
the Lenders obligations under this Agreement and shall require the immediate
repayment of all amounts due by the Borrower to the Lenders under this
Agreement, increased by any cash management costs entailed by such prepayment.
ARTICLE 15 – APPLICATION
OF FUNDS RECEIVED BY THE AGENT
Any amount received by the Agent,
for any reason, shall be applied in the following manner:
15.1 in
priority, to the payment of arrears of whatever nature and beginning with costs
and incidental expenses as defined in Articles 9.2 and 9.3, fees, late
interest, then payment of arrears of interest and principal in order of their
Payment Dates, unless the Agent decides otherwise ;
15.2 in
the absence of arrears or where arrears have been settled as provided above, to
any Outstanding Amounts under this Credit Facility, beginning with the most
future payments of principal, the interest being recalculated to take such
application into account, unless otherwise agreed between the parties.
ARTICLE 16 – CURRENCY OF
PAYMENT - DOMICILE
16.1
All amounts due by the Borrower under this
Agreement shall be paid in EUR to the
office of the Agent in
16.2 All payments under this
Agreement shall be made in such a manner that the funds shall be available
before 11 a.m. (eleven) (
16.3 Only
payments in EUR shall be accepted.
16.4 Notwithstanding
the foregoing, where, under any court decision against the Borrower or in the
event of liquidation of the Borrower,
(a)
a payment under this Agreement has been made to the Agent, or amounts have been
recovered by the Agent, in a currency other than EUR, and
(b) where after conversion into
EUR of this other currency and transfer of such amount, the amount in EUR is
less than the relevant debt, the Borrower undertakes to pay to the Agent, on
first demand, the exact difference.
ARTICLE 17 –
MISCELLANEOUS
17.1 No-waiver
The failure by
the Lender to exercise or the partial or late exercise of any rights hereunder
shall not be deemed a waiver to such rights or exercise.
17.2 Severability
Where any
provision of this Agreement is declared void or unenforceable by any court, the
validity or the performance of any other provisions of this Agreement shall not
be affected.
Any provision
of this Agreement which is declared void or impossible to perform shall be, to
the extent possible, performed by the Borrower in accordance with the spirit of
this Agreement.
17.3 Binding effect
All statements
and other certificates issued by the Lender under this Agreement relating to
the amounts due by the Borrower to the Lender shall bind the Borrower, save
substantial error.
17.4 Alterations
Any alteration
of this Agreement shall be in writing and signed by the parties.
17.5 Schedules
The Schedules
to this Agreement shall form an integral part of such Agreement.
17.6 Language
The language of this Agreement or
its Schedules as well as any correspondence arising there from shall be
English. Where translations into other languages are required the English
version shall prevail.
17.7 Permitted
Disclosures
The Borrower authorises the Lender,
its subsidiaries, branches and representative offices, any other entity of its
group and its directors, officers, Agents and employees, to disclose
information relating to the Borrower, its business or its dealings with the
Lender to the Relevant Persons (as listed below) only if the Lender deem
such disclosure to be necessary or desirable for (a) the carrying out of their
duties, obligations, commitments and banking activities and/or (b) purposes of
their internal cross-selling, assets liabilities and risk management policy.
« Relevant Persons » means
any or all of the following in relation to (a) and (b) above as the case may
be:
(i)
any authority or person to which banking secrecy may
not be opposed pursuant to any applicable law or regulation or to case-law,
(ii) subsidiaries,
branches and representative offices of the Lender and any other entity of their
group,
(iii) rating
agencies, auditors, professional advisors, CESCE
and if necessary financial institutions and
institutional or other investors who are or might wish to be involved in
securitization schemes, hedging agreements, participations or any other risk
transfer arrangements.
17.8 Assignments
This Agreement shall be binding upon
and inure to the benefit of each party and its successors, transferees and
assigns.
The Borrower shall not be entitled
to assign or transfer any of its rights or obligations under this Agreement.
Each Lender may, at any time, assign all or any of its rights and
benefits or obligations hereunder to a bank or a financial institution,
provided, however, that any such assignment shall not be deemed to modify any
rights, obligations or benefits of the Borrower hereunder. In such case, the
Agent shall previously notify the Borrower of any assignment pursuant to this
Clause and no additional cost related to such assignments will be paid by the
Borrower, i.e. the Borrower will not incur in any additional cost or expenses
related to taxes.
ARTICLE 18 – NOTICES
18.1 All
notices by the Borrower and the Agent under this Agreement shall be given by
fax confirmed by ordinary mail, overnight delivery mail, registered letter with
recorded delivery, or hand delivery against receipt to the following addresses:
- the Borrower :
The
acting by and
through its Secretaria de Estado de Finanzas
Oficinas
Principales, Avenida México 45,
Santo Domingo,
DN, República Dominicana
Attention: Mr
Vicente Bengoa – Finance Secretary -
Phone: (809) 687 5131, ext 2059
Fax (809)
687-5170 or 687-6561
- the Agent :
FORTIS BANK, S.A. SUCURSAL EN ESPAÑA
Global Export
and Project Finance Iberia Department
Serrano, 73
28006
Attention :
Mrs. Carmen Manzanedo / Mrs. Maya Reparaz
Phone :
(34) 91 432 67 77 / (34) 91 432 59 28
Fax : (34) 91 432 67 82 / (34) 91 432 59 17
Any change in
address shall be communicated under the procedure provided in this Article.
18.2 Any
notice given under Article 18.1 shall take effect upon receipt by the other
party.
18.3 Notices shall
be in English.
ARTICLE 19 – VOLUNTARY
PREPAYMENT
No voluntary prepayment can be made
by the Borrower during the Disbursement Period
Subject to a 3 month prior notice to
the Agent, the Borrower may prepay all or part of the Outstanding Amount, such
prepayment concerning only an integral number of payments of principal and may
be made in a minimum of EUR 5,000,000 (five millions EUR) only at an interest
Payment Date. Amounts thus prepaid shall be applied in accordance with Article
15.
In the case that the Borrower makes
a prepayment on a date that is not a Payment Date; the Borrower will indemnify
the Agent with an indemnity ( the”Indemnity”). The amount of such Indemnity
shall be the difference between the financing rate, determined in accordance
with Article 5.2 hereof, and the investment rate of the financial markets for
each voluntary prepaid amount, any prepayment date and for each related
remaining term.
The conditions of such prepayment
shall be determined by common agreement between the Agent and the Borrower
prior to such repayment. In any event, the Borrower shall notify its final
decision to the Agent no later than five (5) Banking Days before the repayment
date.
Two (2) Banking Days before the
prepayment date, the Agent shall notify the Borrower in writing of the amount
of the indemnity payable.
No prepaid amount may be
redisbursed.
When making a prepayment under this
Agreement, the Borrower shall also prepay in due proportion the Long Term
Commercial Loan Agreement.
ARTICLE 20 – APPLICABLE
LAW - JURISDICTION
20.1 This Agreement
shall be governed by Spanish law.
20.2 Any
dispute arising out of the validity, construction or performance of this
Agreement shall be settled (if possible) by an agreement to be entered on the
ground of good faith negotiations between the parties hereto. Should the
parties fail to reach such an agreement, such dispute shall be settled by the
Court of Commerce of
20.3 The
Borrower hereby waives any immunity from jurisdiction or execution that it
enjoys or may enjoy.
ARTICLE 21 – THE AGENT
AND THE LENDERS
21.1 Appointment
of the Agent. Each Lender
hereby appoints the Agent to act as its Agent for the purpose of this Agreement
and authorizes the Agent to exercise such rights, powers, authorities and
discretions as are specifically delegated to the Agent by the terms hereof,
together with all such rights, powers, authorities and discretions as are
reasonably incidental thereto.
21.2 Agent's Discretions. The Agent may:
(a) assume,
unless it has, in its capacity as Agent of the Lenders, received notice to the
contrary from any other party hereto, that (i) any representation made or
deemed to be made by the Borrower in connection herewith is true, (ii) no Event
of Default has occurred, (iii) the Borrower is not in breach of or in default
under its obligations hereunder and (iv) any right, power, authority or
discretion vested in the Lenders or any other person or group of persons
(whether pursuant to the Agreement or otherwise) has not been exercised;
(b) engage
and pay for the advice or services of any lawyers, accountants, or other
experts whose advice or services may to it seem necessary, expedient or
desirable and rely upon any advice so obtained;
(c) rely at
to matters of fact which might reasonably be expected to be within the
knowledge of the Borrower upon a certificate signed by or on behalf of the
Borrower;
(d) rely upon
any communication or document believed by it to be genuine;
(e) refrain
from exercising any right, power or discretion vested in it as Agent hereunder
unless and until instructed by the Instructing Group as to whether or not such
right, power or discretion is to be exercised and, if it is to be exercised, as
to the manner in which it should be exercised; and
(f) refrain
from acting in accordance with any instructions of an Instructing Group to
begin any legal action or proceeding arising out of or in connection with this
Agreement, until it shall have received such security as it may require
(whether by way of payment in advance or otherwise) for all costs, claims,
losses, expenses (including legal fees) and liabilities together with any VAT
thereon which it will or may expend or incur in complying with such
instructions.
21.3 Agent's Obligations. The Agent shall:
(a) act as
paying Agent for the purposes of disbursement of the Facility and the receipt
of repayments and payments;
(b) promptly
inform each Lender of the contents of any notice or document received by it in
its capacity as Agent from the Borrower hereunder; and
(c) promptly
notify each Lender of the occurrence of any Event of Default or any default by
the Borrower in the due performance of or compliance with its obligations under
this Agreement of which the Agent has notice from any other party hereto;
21.4 Lenders’ Instructions.
(a) Unless
a contrary indication appears in this Agreement, the Agent shall exercise any
right, power, authority or discretion vested in it as Agent in accordance with
any instructions given to it by an Instructing Group (or, if so instructed by
an Instructing Group, refrains from exercising any right, power, authority or
discretion vested in it as Agent).
(b) In the absence
of instructions from an Instructing Group, the Agent may act (or refrain from
taking action) as it considers to be in the best interest of the Lenders.
(c) The
Agent is not authorised to act on behalf of a Lender in any legal or
arbitration proceedings relating to this Agreement, without having first
obtained that Lender’s authority to act on its behalf in those proceedings.
21.5 Excluded Obligations. Notwithstanding anything to the
contrary expressed or implied herein, the Agent shall not:
(a) be bound
to enquire as to (i) whether or not any representation made by the Borrower in
connection herewith is true, (ii) the occurrence or otherwise of any Event of
Default; (iii) the performance by the Borrower of its obligations hereunder or
(iv) any breach of or default by the Borrower of its obligations hereunder;
(b) be
bound to account to any Lender for any sum or the profit element of any sum
received by it for its own account;
(c) be
bound to disclose to any other person any information relating to any Borrower
or any of its agencies if such disclosure would or might in its opinion
constitute a breach of any law or regulation or be otherwise actionable at the
suit of any person; or
(d) be
under any obligations other than those for which express provision is made
herein.
21.6 Indemnification. Each Lender shall,
from time to time, indemnify the Agent on its demand in due proportion of its
share of the Facility, against any cost, claim, loss, expense (including legal
fees) and liability together with any VAT thereon which such Agent may incur in
acting in its capacity as Agent hereunder.
21.7 Exclusion of Liabilities. The Agent
accepts no responsibility for the adequacy, accuracy completeness and/or
reasonableness of any representation, warranty, statement, projection,
assumption or information supplied by the Borrower in connection herewith or
for the legality, validity, effectiveness, adequacy, enforceability or
admissibility in evidence of this Agreement, or any such notice or other
document and accordingly the Agent shall be under no liability as a result of
taking or omitting to take any action in relation to this Agreement, save in
the case of gross negligence or wilful misconduct.
21.8 No Actions. The Lenders agree that they
will not assert or seek to assert against any director, officer or employee of
the Agent any claim it might have against any of them in respect of the matters
referred to in Section 20.7 (Exclusion of
Liabilities).
21.9 Business with Borrower. The Agent may
accept deposits from, lend money to and generally engage in any kind of banking
or other business with the Borrower.
21.10 Resignation. Subject to the prior written
consent of the Borrower, such consent not to be unreasonably withheld or
delayed, the Agent may resign its appointment hereunder at any time without
assigning any reason therefore by giving not less than thirty (30) days' prior
written notice to that effect to the Lenders provided that no such resignation
shall be effective until a successor for the Agent is appointed in accordance
with the succeeding provisions of this Section 16 and provided further that the
consent of the Borrower shall not be required in relation to any resignation:
(a) required by reason of any
change of law or interpretation and/or compliance with any request or
requirement relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other authority in
respect of which compliance in the relevant jurisdiction is generally customary
by banks and financial institutions; or
(b) where
the proposed successor Agent is in another part of FORTIS
BANK S.A. SUCURSAL EN ESPAÑA or is a person that controls, is controlled by, or
is under common control with, FORTIS BANK S.A.SUCURSAL EN ESPAÑA
21.11 Successor
Agent. If the Agent gives notice of its resignation pursuant to
Clause 20(10) (Resignation),
then, unless Section 20(10)(b) applies, any reputable and experienced bank or
other financial institution may be appointed as a successor thereto by an
Instructing Group during the period of such notice but, if no such successor is
so appointed, the Agent may appoint such a successor itself.
21.12 Rights
and Obligations. If a successor to the Agent is appointed under the
provisions of Section 20(11) (Successor
Agent), then (a) the retiring Agent shall be discharged from any
further obligation hereunder but shall remain entitled to the benefit of the
provisions of this Section 20 and (b) its successor and each of the
other parties hereto shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a party hereto.
21.13 Own Responsibility. It is understood and agreed by the Lenders
that they have themselves been, and will continue to be, solely responsible for
making their own independent appraisal of and investigations into the business,
financial condition, prospects, creditworthiness, status and affairs of the
Borrower and, accordingly, the Lenders warrant to the Agent that they have not
relied on and will not hereafter rely on the Agent or any other Lender:
(a)
to provide them with any
information relating to the business, financial condition, prospects,
creditworthiness, status or affairs of the Borrower or any other person,
whether coming into its possession before or after the making of any
Disbursement;
(b) to check or enquire into the adequacy, accuracy, completeness
or reasonableness of any representation, warranty, statement, projection,
assumption or information at any time provided by or on behalf of the Borrower
or any other person under or in connection with this Agreement or the
transactions herein contemplated (whether or not such information has been or
is at any time hereafter circulated to the Lenders by the Agent); or
(c) to assess or keep under review the business, financial
condition, prospects, creditworthiness, status or affairs of the Borrower or
any other person.
ARTICLE 22 – DELEGATION
22.1
Pursuant to Article 1.709 of the Spanish Civil Code,
the Borrower delegates to the Agent acting on behalf the Lenders, who accept
such delegation, any amounts which may be due by the Supplier’s guarantors to
the Buyer under the Commercial Contract, any documents relating thereto, any
court decision settling any dispute arising out of the Commercial Contract or
any documents relating thereto.
Consequently,
and without prejudice to the exercise by the Agent, acting on behalf the
Lenders, its direct remedies against the Borrower, the Borrower shall take all
measures necessary to ensure that the amounts due to the Buyer by the
Supplier’s guarantors shall be paid directly to the Agent acting on behalf the
Lenders, which shall apply them as provided by Article 15 above.
For the
purposes hereof, the Borrower shall take all necessary measures to ensure that
prior to any Disbursement, the Delegation Agreement concerning the Supplier's
guarantors, comply substantially with the forms attached hereto as Schedule 3.
ARTICLE 23 – ENTRY INTO
EFFECT
This Agreement shall enter into
effect on the Effective Date.
Executed in
In four original counterparts
THE BORROWER
For and on
behalf of THE DOMINICAN REPUBLIC
Name: Mr.
Vicente Bengoa
Title: Secretary
of Finance
THE AGENT
For and of
behalf of FORTIS BANK S.A. SUCURSAL EN ESPAÑA
Name: Mr
Title :
THE GLOBAL COORDINATOR
For and of
behalf of SOCIETE GENERALE Paris
Name: Mr
.
Title:
THE MANDATED LEAD ARRANGERS
For and of
behalf of SOCIETE GENERALE Paris
Name: Mr
.
Title:
For and of
behalf of BNP PARIBAS
Name: Mr
Title:
For and of
behalf of FORTIS BANK S.A. SUCURSAL EN ESPAÑA
Name: Mr
Title :
SCHEDULE 1
DOCUMENTS TO BE PRESENTED BY THE SUPPLIER TO THE AGENT
AND TERMS AND CONDITIONS OF DISBURSEMENTS
Subject to the fulfilment of the
conditions set out in Article 3 of this Agreement and after the payment of the
advance payment, payments will be made to the Supplier according to the
provisions of the Commercial Contract as follows:
For each payment, each supplier
involved in the Consortium shall have to present its own commercial invoice and
each commercial invoice shall have to state expressly the split between the
Spanish and Assimilated Share and Local Share and have to be certificated by
the Buyer.
Ø
The commercial invoices for the payment term will be
presented by Sampol Ingenieria y Obras,
- 10% of the amount of the equipment against presentation to the Agent
of copy of the following document :
-
a commercial invoice
-
evidence that the equipment have been ordered
- 70% of the amount of the equipment, at the shipment date (FOB) against
presentation to the Agent of a copy of the following documents:
-
a commercial invoice
-
Bill of lading
-
Insurance certificate with the OPRET as beneficiary
-
Packing list in Spanish or English, one (1) original
and three (3) copies with mentions of the ….weight,
-
Certificate of origin
- 5% of the amount of the equipment against presentation to the Agent of
copy of the following document :
-
a commercial invoice
-
evidence that the provisional acceptance has been
pronounced
SCHEDULE 2
FORM OF LEGAL OPINION
(to be issued for the Agreement)
.......................(name of
Lender)
.......................(address)
Attention
date......
Dear Sirs,
As ..........., my opinion has been requested as regards the
Long Term Commercial Loan (hereinafter the "Agreement") signed
on....... between the Dominican Republic acting by and through its Secretaria
de Estado de Finanzas (hereinafter the "Borrower") and FORTIS BANK
S.A. SUCURSAL EN ESPAÑA as Agent , and SOCIETE GENERALE, BNP Paribas and FORTIS
BANK S.A. SUCURSAL EN ESPAÑA the lenders
(hereinafter the Lenders) in an amount of ………………. to finance part of the
contract executed on November <>, 2006, between the Dominican Republic acting by and
through the “Oficina para el Reordenamiento del Transporte “ “OPRET” (hereinafter
the “Buyer”) and Sampol Ingenieria y
Obras, S.A., calle Gremio Boneteros N° 48, 07009 Palma de Mallorca -
Espana, a contract for the “suministro de electricidad normal y de emergencia a
las facilidades del SITRAM” for the underground system for the city of Santo
Domingo (hereinafter the “Commercial Contract”). The contract price amounts to
EUR 12,036,673.90 (twelve million thirty-six thousand and six hundred seventy
three euros and ninety cents)
This opinion is given in accordance
with Article 3.2.1 of the Agreement.
To give this opinion, I have
examined the original of [or a certified copy of the original of] [1] :
(i) the Agreement ;
(ii)
the Delegation Agreement;
(iii) the Commercial Contract
[to be
completed if needed]
as well as all other documents that I
considered necessary for the purposes hereof.
The capitalised terms in this
opinion have the meaning given to them under the Agreement.
As regards the law of the
(1) The Borrower has the
power to borrow under the Agreement and to sign the Agreement and the
Delegation Agreement.
(2) Under the law
of............ (the Borrower's country) and under …………, (a) the Borrower has
been duly authorised by ……… dated ............. to borrow and to commit itself
under the Agreement and the Delegation Agreement and (b) Mr ............. [and Mr.............]
has [have] been validly authorized to execute the Agreement and the Delegation
Agreement.
(3) The Borrower has
obtained from the relevant authorities of
............. (Borrower's country)
all permits, licences or authorisations under the law of....... (Borrower's country) and (including
Congress ratification, publication in the Official Gazette and registration by
the “Secretario de Estado de Finanzas” and the regulations concerning the
financial relations with foreign countries), required for the validity of
Agreement and permitting their execution and performance.
(4) The Buyer has obtained
all permits, licences or authorisations required for the execution and
performance of the Commercial Contract.
(5) The Agreement and the
Delegation Agreement have been duly executed and any obligation therein represents
a valid and enforceable undertaking by the Borrower.
(6) The execution by the
Borrower of the Agreement and the Delegation Agreement and the performance by
the Borrower of its obligations arising there from is not contrary to or in
breach of any provision of the ………………… and does not entail a breach by the
Borrower of any obligation under any agreement or undertaking to which it is
[may be] party.
(7) The execution and
performance of the Agreement and the Delegation Agreement and the decision to
borrow are not contrary to any law or regulation, decree or order
of............. (Borrower's country).
No provision in the
Agreement and the Delegation Agreement including the determination of interest
rates and late interest is contrary to public policy in.............
(Borrower's country)
(8) No stamps, registration
of the Agreement and the Delegation Agreement, payment of any duty or the
obtaining of any authorisation whatever is required (a) to ensure the validity
of any obligations under such documents or (b) to produce such documents in
evidence in........ (Borrower's country)
and to obtain their enforcement or payment.
(9) The payments incumbent
on the Borrower under the Agreement are not the subject in............. (Borrower's country) to any tax or any
other tax deduction (including stamp duty or registration fee).
Nevertheless, where
such a tax or other tax deduction is subsequently levied, the provisions of
Article 8.1 of the Agreement apply, such provisions being valid under the
applicable law of............. (Borrower's country).
(10) The Lenders will be in no
way deemed residents or domiciled or exercising a business, or liable to tax
in............. (Borrower's country)
by reason of the execution or performance of the Agreement and the Delegation
Agreement.
(11) The Agreement and the
Delegation Agreement are legal acts governed by commercial law (actes de commerce)
(12) The Borrower has validly
waived any immunity from jurisdiction and/or execution that it enjoys or may
enjoy.
(13) Any claims arising out of
the Agreement will enjoy at least the same rank as claims of other unsecured
creditors of the Borrower.
(14) The Borrower has validly
elected Spanish law to govern its obligations under the Agreement and the
Delegation Agreement.
The validity of such
choice will be recognised by the courts of......... (Borrower's country).
(15) The Borrower has validly granted jurisdiction to the Court of
Commerce of
A decision given by
such court will be recognised and enforceable by the courts of …….. (Borrower's country) without any further
decision as regards the merits of the case or procedure being required.
(16) The courts of............
(Borrower's country) may give
judgments in a currency other than the local currency.
(17)
The election of domicile provided by Article 20 of the
Agreement and Article 6 of the Delegation Agreement complies with the legal
requirements of notification of proceedings in the law of............. (Borrower's country).