EXHIBIT 10.44
LOAN AGREEMENT
THIS LOAN AGREEMENT is dated as of the ___ day of __________, 2001, by and
among PSMT, LLC, a U.S. Virgin Islands limited liability company doing business
as PriceSmart, whose mailing address is 6501 Red Hook Plaza, Suite 201, St.
Xxxxxx, U.S. Virgin Islands 00802 (the "Borrower"), PRICESMART, INC., a Delaware
corporation, whose mailing address is 0000 Xxxxxx Xxxx., Xxx Xxxxx, XX 00000
(the "Guarantor"), and BANCO POPULAR DE PUERTO RICO, a commercial banking
institution whose mailing address is X.X. Xxx 0000, Xx. Xxxxxx, X.X. Xxxxxx
Xxxxxxx 00000 (the "Bank").
WHEREAS, the Bank has agreed to extend to the Borrower, and the Borrower
has accepted, a revolving line of credit facility upon the terms and conditions
hereinafter described (the "Line of Credit" or the "Loan"), to be used by the
Borrower for (a) the funding of working capital requirements of the Borrower,
and (b) closing costs associated with the Loan;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties hereto agree as follows:
1. REPRESENTATIONS. The Borrower and the Guarantor, respectively,
represent, covenant and warrant that:
1.1 COMPANY / CORPORATE EXISTENCE AND POWER. The Borrower is a limited
liability company duly organized, validly existing and in good standing under
the laws of the Territory of the U.S. Virgin Islands and has the power to make
this Agreement and to borrow hereunder. The Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power to make this Agreement and to guaranty the
Loan.
1.2 COMPANY / CORPORATE AUTHORITY. The making and performance by the
Borrower and Guarantor of this Agreement has been duly authorized by all
necessary corporate and company action and will not violate any provision of law
or of their respective Articles of Organization, Articles of Incorporation,
Limited Liability Company Agreement, Bylaws or other organizational documents or
result in the breach of, or constitute a default under, or, except as
hereinafter provided, result in the creation of any lien, charge or encumbrance
upon any property or assets of the Borrower or Guarantor pursuant to any
indenture or bank loan or credit agreement, or other agreement or instrument to
which the Borrower or Guarantor is a party or by which the Borrower, Guarantor
or the property or either may be bound or affected.
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1.3 FINANCIAL CONDITION. The most recent financial statements of the
Borrower and Guarantor, and other related information, heretofore furnished to
the Bank, are complete and correct and fairly present the financial condition of
the Borrower and Guarantor and the results of operations for the period(s)
specified therein. To the best of the Borrower's and Guarantor's knowledge and
belief, neither the Borrower nor the Guarantor has any contingent obligations,
liabilities for taxes, or unusual forward or long term commitments, except as
herein specifically mentioned, or disclosed by, or reserved against, in said
financial statements, and, at the present time, there are no material unrealized
or anticipated losses from any unfavorable commitments of the Borrower or
Guarantor. Said financial statements have been prepared in accordance with
generally accepted accounting principles and practices consistently maintained
by the Borrower and Guarantor throughout the period involved. Since the dates of
such financial statements, and since the date of the other financial information
provided to the Bank, there have been no material adverse changes in the
financial condition of the Borrower or Guarantor from that set forth in said
financial statements or in said other financial information as of the date
thereof.
1.4 LITIGATION. Except as Bank has been advised in writing, there are no
suits or proceedings pending, or, to the knowledge of the Borrower or Guarantor,
threatened, against or affecting the Borrower or Guarantor which, if adversely
determined, would have a material adverse effect on the financial condition or
business of the Borrower or Guarantor, except as indicated in Exhibit "A"
hereto. There are no proceedings by or before any governmental commission,
bureau or other administrative agency pending, or to the knowledge of the
Borrower or Guarantor threatened, against the Borrower or Guarantor.
1.5 TITLES; LIENS. The Borrower and Guarantor have exclusive good and
marketable title to each of the fixed properties and assets reflected in their
financial statements free and clear of all mortgages, liens and encumbrances,
except (a) liens, if any, for current taxes, assessments and governmental
charges not delinquent or whose validity is being contested at the time in good
faith and by appropriate proceedings, and covenants, restrictions, rights,
easements, liens, encumbrances and minor irregularities in title which, in their
opinion, do not and will not interfere with the occupation, use and enjoyment of
such properties and assets in the normal course of business as presently
conducted or planned or materially impair the value of such properties and
assets for the
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purpose of such business, (b) mortgages, liens and encumbrances disclosed in the
financial statements provided in SUBSECTION 1.3 above, and (c) mortgages, liens
and encumbrances in favor of the Bank. The Borrower is the sole owner of all
assets located at the St. Xxxxxx PriceSmart store free and clear of all liens
and encumbrances except as specifically allowed in this subsection.
1.6 ENVIRONMENTAL COMPLIANCE. To the best of the Borrower's knowledge and
belief, the Borrower has duly complied with, and the Borrower's business
operations, assets, equipment, property, leaseholds or other facilities are in
compliance with the provisions of all federal and territorial environmental,
health, and safety laws, codes and ordinances, and all rules and regulations
promulgated thereunder and the Borrower has been issued and will maintain all
required federal and territorial permits, licenses, certificates, and approvals
relating to (1) air emissions, (2) discharges to surface water or groundwater,
(3) noise emissions, (4) solid or liquid waste disposal, (5) the use,
generation, storage, transportation or disposal of toxic or hazardous substances
or wastes (intended hereby and hereafter to include any and all such materials
listed in any federal or territorial law, code or ordinance, and all rules and
regulations promulgated thereunder, as hazardous or potentially hazardous), or
(6) other environmental, health, or safety matters; and the Borrower has
received no notice of, and neither knows of nor suspects, facts which might
constitute any violations of any federal or territorial environmental, health,
or safety laws, codes or ordinances, and any rules or regulations promulgated
thereunder with respect to the Borrower's business, operations, assets,
equipment, property, leaseholds, or other facilities; and, except in accordance
with a valid governmental permit, license, certificate or approval, there has
been no emission, spill, release, or discharge into or upon (1) the air, (2)
soils or any improvements located thereon, (3) surface water or groundwater, or
(4) the sewer, septic system or waste treatment, storage or disposal system
servicing the Borrower's business or property, of any toxic or hazardous
substances or wastes at or from the Borrower's business premises or other
property, and accordingly, except for inventory of raw materials, supplies, work
in progress and finished, that are to be used or sold in the ordinary course of
business, the Borrower's business premises and other properties are free of all
such toxic or hazardous substances or wastes and there has been no complaint,
order, directive, claim, citation, or notice by any governmental authority or
any person or entity with respect to (1) air emissions, (2) spills, releases, or
discharges to soils or improvements located thereon, surface water, groundwater
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or the sewer, septic system or waste treatment, storage or disposal systems
servicing the Borrower's business or properties; (3) noise emissions, (4) solid
or liquid waste disposal, (5) the use, generation, storage, transportation, or
disposal of toxic or hazardous substances or waste, or (6) other environmental,
health, or safety matters affecting the Borrower or the Borrower's business,
operations, assets, equipment, property, leaseholds, or other facilities. The
Borrower has received no notice of indebtedness, obligation or liability,
absolute or contingent, matured or not matured, with respect to the storage,
treatment, cleanup, or disposal of any solid wastes, hazardous wastes, or other
toxic or hazardous substances (including without limitation any such
indebtedness, obligation or liability with respect to any current regulation,
law or statute regarding such storage, treatment, cleanup, or disposal) not
previously disclosed to and approved by the Bank in writing.
1.7 CONTRACT OBLIGATIONS. The Borrower is not a party to any contract or
agreement which materially and adversely affects Borrower's business,
properties, or assets, or Borrower's condition, financial or otherwise, except
as herein specifically identified; and neither the execution and delivery of
this Agreement, the consummation of the transactions contemplated herein, nor
compliance with the terms, conditions and provisions of this Agreement, the
Security Instruments referred to herein and the Note issued hereunder will
conflict with or result in a breach of the terms, conditions, or provisions of
any indenture or other agreement or instrument to which the Borrower is a party
or by which the Borrower is bound or will result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Borrower, except as permitted by the provisions
hereof.
1.8 BUSINESS LICENSES AND GOVERNMENTAL PERMITS. The Borrower possesses all
licenses, franchises and permits necessary for the conduct of Borrower's
business without substantial known conflict with the rights of others.
1.9 USE OF LOAN PROCEEDS. The proceeds of the Loan shall be used solely
for the purposes herein stated in accordance with the provisions hereof.
1.10 ENFORCEABILITY. This Agreement, the Note (as defined in SUBSECTION
2.7), the Security Instruments (as defined in SECTION 3) and other documents to
be delivered and executed simultaneously herewith (collectively, the "Loan
Documents") are the legal, valid and binding
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obligations of the Borrower and Guarantor, enforceable against the Borrower and
Guarantor in accordance with their respective terms.
2. THE AGREEMENT TO LEND.
2.1 AMOUNT. The Bank agrees, on the terms and conditions of this
Agreement, to extend to the Borrower a revolving line of credit in the aggregate
maximum principal amount at any one time outstanding of TWO MILLION AND 00/100
DOLLARS ($2,000,000.00).
2.2 TYPE; ADVANCES UNDER LINE OF CREDIT. The Line of Credit shall be a
revolving line of credit with interest payable monthly as hereinafter provided
and principal and all unpaid and accrued interest due and payable on the date
that is twelve (12) months from the date hereof. Each advance under the Line of
Credit shall be evidenced by a draw request in accordance with this Agreement
signed by the Borrower and approved by the Bank and the aggregate principal
balance outstanding under the Line of Credit shall not exceed the aggregate
maximum principal amount of the Line of Credit set forth above. As a revolving
line of credit, provided that the Line of Credit and Borrower's right to draw
thereunder shall not have expired or been terminated, any principal sums
previously advanced by the Bank that shall have been repaid by the Borrower may
subsequently be redrawn by the Borrower subject to the terms hereof.
2.3 REPAYMENT OF PRINCIPAL. If not previously repaid, the Borrower shall
repay the entire principal balance of the Line of Credit and all unpaid interest
thereon on the date that is twelve (12) months from the date hereof. All
payments shall be applied first to late charges, if any, second to accrued
interest and the remainder to the outstanding principal balance.
2.4 RENEWAL, TERMINATION AND MODIFICATION OF THE LINE OF CREDIT. On the
first anniversary of the date hereof, and on each subsequent anniversary
thereafter (if any), at the Borrower's request, the Bank shall review the terms,
provisions and outstanding balance of the Line of Credit, the Borrower's use of,
and overall performance under, the Line of Credit during the prior year, the
financial statements and overall financial condition of the Borrower and the
Guarantor, and such other documents and information as the Bank deems necessary
or desirable for the purpose of determining whether the Line of Credit should be
terminated, revised or renewed. The Bank shall have the right, in its sole
discretion, to make such determination and shall advise the Borrower of
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any decision to renew, modify or terminate the Line of Credit. Upon any renewal,
the Borrower shall pay to the Bank the renewal fee of $5,000.00.
2.5 ANNUAL CLEANUP FOR LINE OF CREDIT. In the event that the Bank agrees
to extend or renew the term of the Line of Credit pursuant to SUBSECTION 2.4
hereof, during the first one hundred twenty (120) days of the twelve-month
period following any such extension or renewal there shall be a period of thirty
(30) days during which the Borrower shall have repaid to the Bank all
outstanding principal and accrued interest and there shall be no principal or
interest outstanding under the Line of Credit during said thirty (30) day
period.
2.6 INTEREST. Advances under the Line of Credit shall bear interest at a
rate per annum equal to one and one-half percent (1.50%) above the prime rate as
it varies (any change in interest resulting from the change in the prime rate to
be effective at the beginning of the day on which such change in the prime rate
is announced). The term "prime rate" as used herein means that rate of interest
from time to time announced by The Chase Manhattan Bank, N.A. at its principal
offices in New York, New York as its commercial loan prime rate. Interest on
advances under the Line of Credit shall be calculated daily on a three hundred
sixty (360) day basis at the rate hereinabove set forth. Interest accrued on the
principal sum from time to time outstanding under the Line of Credit at the rate
hereinabove set forth shall be due and payable monthly on the first day of each
month until the entire principal sum and all accrued interest are fully paid.
Notwithstanding the foregoing, at any time that an Event of Default (as
hereinafter defined) shall have occurred and be continuing, the Loan shall bear
interest at a rate per annum equal to three and one-half percent (3.50%) above
the prime rate as it varies (the "Default Rate") (any change in interest
resulting from the change in the prime rate to be effective at the beginning of
the day on which such change in the prime rate is announced). Interest at the
Default Rate shall be calculated daily on a three hundred sixty (360) day basis
and shall be due and payable monthly on the first day of each month as provided
in the preceding paragraphs. Interest and late charges, if any, that are not
paid when due shall be compounded monthly.
2.7 THE NOTE. The Line of Credit shall be evidenced by a Revolving Line of
Credit Note of even date herewith in the maximum principal amount of the Line of
Credit (the "Note").
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2.8 PREPAYMENT. The Loan may be prepaid at any time, and from time to
time, in whole or in part, without any premium or penalty therefor. All payments
and prepayments shall be applied first to late charges (including any interest
charged at the Default Rate), if any, second to other accrued interest and the
remainder to the outstanding principal balance.
2.9 LATE CHARGE. Any payment due hereunder that is not actually received
by the Bank within ten (10) business days after its due date, shall be subject
to a late charge of five percent (5%) of such payment, which late charge shall
be immediately due and payable to the Bank.
3. SECURITY. The Loan shall be secured by this Agreement and the
following agreements, pledges, and assignments of the Borrower and Guarantor
(collectively, the "Security Instruments"):
3.1 SECURITY AGREEMENT AND UCC-1 FINANCING STATEMENT. A Security Agreement
in favor of the Bank (the "Security Agreement"), granting to the Bank a first
priority security interest in all inventory and documents covering such
inventory of the Borrower. The lien of said Security Agreement shall be
perfected by a UCC-1 Financing Statement(s) to be executed of even date herewith
by the Borrower and the Bank and filed with the Corporate Division of the Office
of the Lieutenant Governor of the U.S. Virgin Islands.
3.2 UNLIMITED GUARANTY. The unlimited and unconditional guaranty (the
"Guaranty") of the Guarantor, guaranteeing repayment of the Loan, and the
Borrower's obligations under this Agreement and the Security Instruments
securing the Note.
4. CONDITIONS OF LENDING. The obligation of the Bank to make any
advance under the Loan is subject to and contingent upon the Borrower's and
Guarantor's fulfillment of the following conditions precedent:
4.1 LOAN DOCUMENTS. The Bank shall have received fully executed and
authorized originals in recordable form, as applicable, of this Agreement,
the Note and the Security Instruments.
4.2 APPROVAL OF BANK COUNSEL. All legal matters incident to the
transactions hereby contemplated shall be satisfactory to counsel for the
Bank.
4.3 LOAN FEES AND OTHER FEES. The Bank shall have received from the
Borrower a facility fee in the amount of Ten Thousand Dollars ($10,000.00) and
an application fee of One Hundred Fifty Dollars ($150.00). Each year, if any,
that the Line of Credit is renewed, the Bank shall have
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received from the Borrower a renewal fee in the amount of Five Thousand Dollars
($5,000.00) due and payable twelve months from the date hereof, if renewed, and
every twelve (12) months thereafter that the Line of Credit is renewed.
4.4 GOVERNMENTAL LICENSES AND PERMITS. The Bank shall have received copies
of all licenses and permits necessary for the operation of the Borrower's
business.
4.5 PROOF OF CORPORATE / COMPANY ACTION. The Bank shall have received
certified copies of all corporate and company organizational documents and all
corporate and company action taken by the Borrower and Guarantor to authorize
the execution and delivery of the Loan Documents and the borrowing and
guaranteeing hereunder, and such other papers as the Bank shall reasonably
request.
4.6 SUBORDINATION OF LOANS. If applicable, all members of the Borrower
shall have executed and delivered to the Bank a subordination agreement,
satisfactory in form and substance to the Bank and its counsel, subordinating
their loans to the Borrower, if any, to the Loan.
4.7 INSURANCE. The Bank shall have received from the Borrower the
following policies of insurance procured through agencies licensed to do
business in the U.S. Virgin Islands, from insurance companies which shall be
financially sound, reputable and satisfactory to the Bank:
(a) Comprehensive General and Excess Liability Insurance coverage,
including employer's liability "stop-gap", personal injury, hired and no-owned
automobiles, products/completed operations, independent contractors (if any),
blanket liability broad form, property damage and personal injury, in form,
amount and coverage satisfactory to the Bank and its counsel.
(b) Standard Multi-Peril insurance coverage, with extended coverage
endorsementst, with respect to the property pledged to the Bank as collateral
security for the Loan, naming the Bank as mortgagee/loss payee, for the full
insurable value of such property.
(c) Appropriate workers' compensation insurance in respect of
all employees of the Borrower in accordance with U.S. Virgin Islands law.
(d) If it is determined from the National Flood Insurance Report
that the Borrower's business premises or any other area in which the personal
property or any part thereof pledged as collateral security for the Loan is
located in a designated flood prone area, Federal Flood Insurance
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naming the Bank as mortgagee/loss payee up to the maximum amount available
covering such property.
(e) Such other insurance with respect to such property and the
Borrower's business in such amounts and against such insurable hazards as the
Bank from time to time may reasonably require.
(f) The foregoing insurance policies shall provide that they may not
be canceled, or the amount(s) of coverage provided reduced, for any reason until
not less than thirty (30) days written notice shall have been give to the Bank
of the insurance company's intention to cancel or reduce the amount(s) of
coverage provided under such policy or policies during which time the Borrower
shall replace said policy or policies with new, substitute or successor policies
to comply with the requirements of this SUBSECTION 4.7. The foregoing insurance
policies shall be provided by a company with a current rating by A.M. Best & Co.
of A- or better.
4.8 TAX CLEARANCE LETTER. The Bank shall have received evidence to the
effect that all taxes, assessments, and governmental charges lawfully levied and
assessed against the Borrower have been fully satisfied.
4.9 LIEN SEARCH. The Bank shall have received a satisfactory lien
search showing no liens or judgments against the Borrower or its property.
4.10 OPINION OF COUNSEL FOR BORROWER AND GUARANTOR. The Bank shall have
received from counsel for the Borrower and Guarantor a favorable opinion dated
the same date hereof addressed to the Bank and satisfactory in scope, form and
substance to the Bank and its counsel, covering the following matters:
(a) BORROWER. The Borrower is a limited liability company duly
formed, validly existing and in good standing under the laws of the U.S. Virgin
Islands, has the legal capacity and authority to own and to pledge its real
property and other property and to take such other actions and exercise such
other powers to the extent required to properly and adequately conduct its
business and to carry out its obligations under the Loan Documents and that no
part of this transaction violates any restriction, term, condition or provision
of the Borrower's organizational documents.
(b) GUARANTOR. The Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the legal capacity and authority to
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take such action and exercise such powers to the extent required to properly and
adequately conduct its business and to carry out its obligations under the Loan
Documents and that no part of this transaction violates any restriction, term,
condition or provision of the Guarantor's Articles of Incorporation, Bylaws or
other organizational documents.
(c) LOAN DOCUMENTS. The Loan Documents have been duly executed and
delivered by the Borrower and Guarantor and constitute legal, valid and binding
instruments except as may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws generally affecting the rights of creditors.
(d) REMEDIES. The remedies contained within all the Loan Documents are
effective and enforceable under the laws of the U.S. Virgin Islands.
4.11 OTHER DOCUMENTATION. The Bank shall have received from the Borrower
and Guarantor such other items and documents required to be provided by the
Borrower as may be set forth on the Closing Agenda utilized by the Bank and the
Borrower to close the Loan, but not otherwise specifically referred to herein.
4.12 NO EVENT OF DEFAULT. No Event of Default (as defined in SECTION
7 hereof) shall have occurred and be continuing.
4.13 ADVANCES. The Bank shall make advances under the Line of Credit upon
not less than three (3) business days prior written request from the Borrower to
the Bank, and not more frequently than weekly in amounts not less than Fifty
Thousand Dollars ($50,000.00) each. All advances shall be made at the principal
office of the Bank or at such other place as the Bank may from time to time
designate. The Bank shall have no obligation to make a requested advance unless
and until the Borrower has complied to the satisfaction of the Bank and its
counsel with all applicable terms and conditions of this Agreement.
5. AFFIRMATIVE COVENANTS. The Borrower and the Guarantor agree that so
long as credit shall remain available hereunder and until payment in full of the
Note, and until complete performance by the Borrower and Guarantor under the
Loan Documents is satisfied, unless the Bank shall otherwise consent in writing,
the Borrower and the Guarantor will:
5.1 PAYMENT OF TAXES. Pay and discharge, or cause to be paid and
discharged, all taxes, assessments and governmental charges or liens imposed
upon the Borrower or upon the income or
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profits of the Borrower, or upon any property belonging to the Borrower prior to
the date on which penalties attach thereto, and all lawful claims which, if
unpaid, might become a lien or charge upon the property of the Borrower;
provided that the Borrower shall not be required to pay any such tax,
assessment, charge, levy or claim the payment of which is being contested in
good faith and by proper proceedings and so long as Borrower furnishes the Bank,
immediately upon such tax, assessment, charge, levy or claim becoming overdue,
notice of that which Borrower intends to contest.
5.2 INSURANCE. Maintain, or cause to be maintained, the insurance coverage
specified in SUBSECTION 4.7 above.
5.3 NOTICE OF LITIGATION, ETC. Promptly give notice in writing to the Bank
of any material contingent liability of the Borrower and of all litigation and
of all proceedings by or before any governmental regulatory agency, against or
affecting the Borrower, where the amount in controversy exceeds $100,000.00 or
which, if adversely determined, would otherwise have a material adverse effect
on the financial condition or business of the Borrower.
5.4 LOAN PROCEEDS. Apply the proceeds of the Loan for the specific
purposes provided for herein.
5.5 SUBORDINATION OF LOANS. Subordinate all existing and future members'
loans and/or advances to the Loan; provided that the Borrower may make routine
installment payments under such loans so long as (a) no Event of Default has
occurred, and (b) interest on any such loans does not exceed the interest rate
charged on the Note.
5.6 FINANCIAL STATEMENTS. Furnish the Bank (a) within ninety (90) days
after the end of each fiscal year of the Borrower and Guarantor, audited
financial statements of the Borrower, Guarantor and Guarantor's subsidiaries as
of the close of such fiscal year; (b) within thirty (30) days after the end of
each quarter, quarterly financial statements of the Borrower, Guarantor and
Guarantor's subsidiaries as of the close of such quarter, prepared in such
manner as is acceptable to the Bank, which quarterly financial statements if
unaudited, shall be at least a review prepared by an independent CPA; and ( c)
such additional other information regarding the business affairs and financial
condition of the Borrower and Guarantor as may be requested by the Bank, at such
times, and prepared in such manner and by such persons as are acceptable to the
Bank.
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5.7 DEPOSITS. Maintain all direct and indirect depository accounts of the
Borrower with the Bank.
5.8 INTERCOMPANY CHARGES. Restrict intercompany charges between Guarantor
and Borrower to direct verifiable out-of-pocket expenses incurred by Guarantor
in providing services to Borrower, which charges shall not in any event exceed
in any calendar year an amount equal to 1.5% of Borrower's gross sales for such
calendar year; and provide to the Bank documentation of any such charges
promptly upon request.
5.9 DEBT SERVICE RATIO. Maintain a year-end debt service coverage ratio of
1.25:1.00, which ratio shall be the sum of operating income and depreciation
less parent company management fees, divided by the sum of the current portion
of long term debt and interest expense, for both Borrower and Guarantor.
5.10 ENVIRONMENTAL COMPLIANCE. Be and remain in compliance with the
provisions of all federal, territorial, and local environmental, health, and
safety laws, codes and ordinances, and all rules and regulations issued
thereunder; notify the Bank immediately of any notice of a hazardous discharge
or environmental complaint received from any governmental agency or any other
party; notify the Bank immediately of any hazardous discharge from or affecting
the Borrower's business premises or other property; immediately contain and
remove the same, in compliance with all applicable laws; promptly pay any fine
or penalty assessed in connection therewith; and at the Bank's request, and at
the Borrower's expense, provide a report of a qualified environmental engineer,
satisfactory in scope, form, and content to the Bank, and such other and further
assurances reasonably satisfactory to the Bank that the condition has been
corrected.
5.11 INSPECTION AND MAINTENANCE. Allow the Bank or its duly authorized
representatives to inspect the books, records, assets, property, and operations
of the Borrower at any reasonable time on reasonable notice and maintain said
books, records, assets, property and operations of the Borrower to the
satisfaction of the Bank.
5.12 LICENSES. Obtain and promptly renew from time to time all consents,
licenses, approvals and authorizations as may be required under any applicable
law or regulation for the Borrower's business operations and for the making,
performance, validity and enforceability of the Security Instruments.
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5.13 SEC FILINGS. Upon filing with the Securities Exchange Commission,
provide a copy to the Bank of the Guarantor's 10Q and 10K filings.
6. NEGATIVE COVENANTS. The Borrower and Guarantor hereby agree that so
long as credit shall remain available hereunder and until payment in full of the
Note, and all other credit advanced by the Bank to the Borrower, without the
prior written consent of the Bank, Borrower and Guarantor will not:
6.1 LIMITATION OF LIENS. Sell, mortgage, pledge, hypothecate, assign,
transfer, suffer to exist, or voluntarily subject to any lien or encumbrance to
secure any indebtedness, any of the Borrower's assets, now owned or hereafter
acquired, excluding, however, from the operation of this covenant, the Loan and
other indebtedness of the Borrower to the Bank.
6.2 LIMITATION ON INDEBTEDNESS. Create or incur any indebtedness or
obligation for borrowed money of the Borrower or issue or sell any obligations
of the Borrower, excluding, however, from the operation of this covenant, the
Loan hereunder, other loans made by the Bank and subordinated members' loans.
6.3 CONTINGENT LIABILITIES. Assume, guarantee, endorse or otherwise become
liable upon the obligations of any person, firm, partnership, corporation or any
other entity except by endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
6.4 CONSOLIDATION OR MERGER. Merge the Borrower into or consolidate with
or into any other corporation, partnership or business entity. For the purposes
of this SUBSECTION 6.4, the acquisition by the Borrower of all or substantially
all of the assets, together with the assumption of all or substantially all of
the obligations and liabilities, of any other corporation or entity shall be
deemed to be a consolidation of such corporation or entity with the Borrower.
6.5 DISPOSITION OF ASSETS. Lend, sell, lease, transfer or otherwise
dispose of any of the assets of the Borrower (other than obsolete or worn-out
property not used or useful in its business), whether now owned or hereafter
acquired, except in the ordinary and regular course of the Borrower's business.
6.6 CHANGE IN BORROWER'S BUSINESS. Effect, cause or permit any change from
the business now conducted by the Borrower.
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6.7 CHANGE IN OWNERSHIP. Effect, cause or permit any change in the
ownership of Borrower or in the beneficiary or legal ownership of any membership
or other interests in Borrower.
6.8 AMENDMENT TO COMPANY DOCUMENTS. Amend the Borrower's Articles of
Organization, Limited Liability Company Agreement or other organizational
documents.
7. DEFAULT. If any one of the following events (each an "Event of
Default") shall occur:
(a) any failure by the Borrower or Guarantor to comply with any term
of this Agreement or any of the Security Instruments, which failure remains
unremedied ten (10) business days after notice thereof from the Bank to the
Borrower;
(b) any failure by the Borrower to pay any of the principal of or
interest (including late charges) on the Note, or of any other indebtedness,
which term shall mean any obligation or liability for borrowed money, owing by
the Borrower to the Bank now existing or hereafter incurred, when the same shall
be due, which failure remains unremedied ten (10) business days after notice
thereof from the Bank to the Borrower;
(c) any representation or warranty made by the Borrower or Guarantor
in connection with the Loan proves to have been incorrect in any material
respect as of the date of this Agreement or as of the date on which it is made,
or any statement, certificate or data furnished by the Borrower or Guarantor
proves to have been incorrect in any material respect as of the date when the
facts therein set forth were stated or certified;
(d) a judgment for the payment of money shall be rendered against
the Borrower or Guarantor and any such judgment shall remain unsatisfied and in
effect for any period of sixty (60) consecutive days without a stay of
execution;
(e) the Borrower or Guarantor shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of the Borrower or Guarantor or
of all or a substantial part of the assets of the Borrower or Guarantor, (ii) be
unable, or admit in writing, the inability to pay debts as they mature, (iii)
make a general assignment for the benefit of creditors; (iv) be adjudicated a
bankrupt or insolvent, or (v) file a voluntary petition in bankruptcy or a
petition or an answer seeking reorganization or an arrangement with creditors or
to take advantage of any insolvency law or an answer admitting the material
allegations of a petition filed against the Borrower or Guarantor in any
LOAN AGREEMENT
PAGE 15
bankruptcy, reorganization or insolvency law or an answer admitting the material
allegations of a petition filed against the Borrower or Guarantor in any
bankruptcy proceeding, reorganization or insolvency proceeding, or corporate
action shall be taken by the Borrower or Guarantor for the purpose of effecting
any of the foregoing;
(f) an order, judgment or decree shall be entered, without the
application, approval or consent of the Borrower or Guarantor, by any court of
competent jurisdiction, appointing a receiver, trustee or liquidator of all or a
substantial part of the assets of the Borrower or Guarantor, and such order,
judgment or decree shall continue unstayed and in effect for any period of sixty
(60) consecutive days; or
(g) the financial condition of the Borrower or Guarantor shall
adversely change in any material respect from the condition of any of the
foregoing represented in the information and documentation submitted by the
Borrower and Guarantor in support of the application for the Loan;
THEN the Bank may by written notice to the Borrower (i) immediately
terminate the commitments of the Bank hereunder, and (ii) declare the principal
of and interest accrued on the Note, and all other liabilities of the Borrower
and Guarantor to the Bank to be forthwith due and payable, whereupon the same
shall become forthwith due and payable.
8. LOAN EXPENSES. The Borrower agrees to pay all reasonable expenses
(including legal expenses and attorneys' fees) payable in connection with the
execution and delivery of this Agreement and of the Note, and the Security
Instruments herein referred to, as well as all expenses (including legal
expenses and attorneys' fees) of every kind incidental to the collection or
enforcement of this Agreement, the Note and the Security Instruments; and the
Borrower shall indemnify the Bank against all reasonable claims for such fees,
charges and commissions arising in connection with the transaction contemplated
by this Agreement.
9. REPLACEMENT OF NOTE(S); DOCUMENT RE-EXECUTION. Upon the Bank's request
and receipt of evidence reasonably satisfactory to the Borrower, of the loss,
theft, destruction or mutilation of the Note and, in the case of any loss, theft
or destruction, if the Borrower so requests, upon delivery of an indemnity
agreement reasonably satisfactory to the Borrower, or, in the case of any such
mutilation, upon surrender and cancellation of such Note, the Borrower will
issue, in lieu thereof, a new Note, dated the date to which interest has been
paid on the lost, stolen,
LOAN AGREEMENT
PAGE 16
destroyed or mutilated Note and otherwise of like tenor, with appropriate
variations. Further, upon the Bank's request, the Borrower and Guarantor, will
execute or re-execute any other document that should have been signed at or
before the closing of the Loan, or which was incorrectly drafted and/or
executed, or which has been lost, misplaced, stolen, damaged or destroyed. If
the Borrower or Guarantor fails to comply with such request under this Section,
the Borrower and Guarantor agree to be liable for any and all loss or damage
which the Bank sustains by reason thereof, including but not limited to all
attorneys' fees and costs incurred by the Bank.
10. NO WAIVER; REMEDIES CUMULATIVE. No failure to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and are not exclusive of any remedies provided by law.
11. ENTIRE AGREEMENT. The Borrower understands and agrees that this
Agreement, along with the Note and Security Instruments, constitute the entire
agreement of the parties with respect to the subject matter hereof, and
supersede any and all prior agreements, written or oral, among the parties
concerning the subject matter hereof (except that Commitment Letter dated June
19, 2001, and accepted July 2, 2001, the terms and provisions of which are
incorporated herein by this reference, shall survive the closing of the Loan as
set forth in Paragraph 21 of said Commitment Letter to the extent not
inconsistent with the terms of the Loan Documents).
12. AMENDMENT TO LOAN AGREEMENT. This Agreement may not be changed orally,
but only by an agreement in writing signed by both parties to this Agreement.
Borrower may not assign its rights or obligations hereunder.
13. WAIVER OF RIGHT TO TRIAL BY JURY. THE BORROWER AND GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT EITHER OF THEM MAY
HAVE TO A TRIAL BY JURY WITH RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE LOAN DOCUMENTS, AND/OR ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING,
LOAN AGREEMENT
PAGE 17
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS BY ANY PARTY. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE BANK'S PERFORMANCE UNDER THIS AGREEMENT.
FURTHER, THE BORROWER AND GUARANTOR HEREBY CERTIFY THAT NO REPRESENTATIVE OR
AGENT OF THE BANK, NOR THE BANK'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE BANK WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO REPRESENTATIVE OR AGENT
OF THE BANK, NOR THE BANK'S COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR
MODIFY THIS PROVISION.
14. JURISDICTION. Should any one or more provisions of this Agreement be
determined to be illegal or unenforceable, all other provisions shall remain
effective. Any legal action or proceeding with respect to this Agreement or any
other agreement executed in connection therewith may be brought in the courts of
the U.S. Virgin Islands (including, without limitation, the Federal District
Court for the District of the U.S. Virgin Islands), and by execution and
delivery of this Agreement, the Borrower consents, for itself and in respect of
its property, to the non-exclusive jurisdiction of those courts. The Borrower
irrevocably waives any objection, including any objection to the laying of venue
and any objection based on the grounds of FORUM NON CONVENIENS, which it may now
or hereafter have to the bringing of any action or proceeding in such
jurisdiction in respect of this Agreement or any other agreement executed in
connection therewith. The Borrower waives personal service of any summons,
complaint or other process, which may be made by any other means permitted by
U.S. Virgin Islands law. This paragraph shall not be deemed to preclude any
party from filing any such action, suit or proceeding in any other appropriate
forum if the courts of the U.S. Virgin Islands decline jurisdiction.
15. MISCELLANEOUS.
15.1 DEFINITIONS. Any accounting term used herein shall, unless the
context otherwise specifies, be defined as most commonly defined in accordance
with generally accepted accounting principles.
15.2 NOTICE. Any notice or communication required herein shall be deemed
to have been properly served if delivered by nationally-recognized overnight
courier or if sent by United States
LOAN AGREEMENT
PAGE 18
first class certified mail, postage prepaid, return receipt requested, addressed
as follows (or at such other address as such party shall have furnished to the
other party in writing) if to the Borrower:
PSMT, LLC
0000 Xxx Xxxx Xxxxx, Xxx. 000
Xx. Xxxxxx, Xxxxxx Xxxxxxx 00000
and if to the Guarantor:
PriceSmart, Inc.
0000 Xxxxxx Xxxx.
Xxx Xxxxx, XX 00000
and if to Bank:
(BY U.S. MAIL) (BY COURIER)
Banco Popular de Puerto Rico Banco Popular de Puerto Rico
Attn: J. Xxxxxx Xxxxxxx Attn: J. Xxxxxx Xxxxxxx
Vice President Vice President
X.X. Xxx 0000 Xx. 000 Xxxxxx Xxxxxx & Welgunst
St. Xxxxxx, U.S. Virgin Islands 00000 Xx. Xxxxxx, X.X. Xxxxxx Xxxxxxx 00000
with a copy to:
Xxxxxx X.X. Xxxxxx, Esq.
Xxxxxx, Topper and Feuerzeig, LLP
X.X. Xxx 000
Xx. Xxxxxx, X.X. Xxxxxx Xxxxxxx 00000
Notice shall be deemed received upon delivery if sent by courier or three (3)
days after deposit with the U.S. post office if sent by U.S. certified mail.
LOAN AGREEMENT
PAGE 19
15.3 CONSTRUCTION. This Agreement is being executed in and shall be
construed in accordance with the laws of the United States Virgin Islands.
IN WITNESS WHEREOF, the parties have caused these presents to be executed
as of the date first above written.
PSMT, LLC, Borrower
By: PriceSmart, Inc., its sole member
By: ____________________________________
________________, __________________
(SEAL)
Attest: ____________________________________
________________, [Asst.] Secretary
PRICESMART, INC., Guarantor
By: ____________________________________
________________, __________________
(SEAL)
Attest: ____________________________________
_________________, [Asst.] Secretary
BANCO POPULAR DE PUERTO RICO
By: ____________________________________
____________________, Vice President
LOAN AGREEMENT
PAGE 20
STATE OF CALIFORNIA )
) SS:
COUNTY OF ______________ )
On this ___ day of __________ , 2001, before me, the undersigned officer,
personally appeared _____________________, who acknowledged himself/herself to
be the duly authorized officer of PriceSmart, Inc., a Delaware corporation, as
sole member of PSMT, LLC, a U.S. Virgin Islands limited liability company, and
acknowledged that he/she, being authorized so to do, executed the foregoing
instrument for the purposes therein contained on behalf of said limited
liability company.
IN WITNESS WHEREOF, I have set my hand and official seal.
----------------------------------
Notary Public
STATE OF CALIFORNIA )
) SS:
COUNTY OF ______________ )
On this ___ day of __________ , 2001, before me, the undersigned officer,
personally appeared _____________________, who acknowledged himself/herself to
be the duly authorized officer of PriceSmart, Inc., a Delaware corporation, and
acknowledged that he/she, being authorized so to do, executed the foregoing
instrument for the purposes therein contained on behalf of said corporation.
IN WITNESS WHEREOF, I have set my hand and official seal.
----------------------------------
Notary Public
