EXHIBIT 10.10.1
EXECUTION COUNTERPART
Loan No.: 1227/OC-CH
================================================================================
LOAN AGREEMENT
dated as of
December 22, 1999
between
COMUNICACION Y TELEFONIA RURAL S.A.
and
INTER-AMERICAN DEVELOPMENT BANK
$25,000,000
================================================================================
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience of reference only.
Page
----
Section 1. Definitions and Accounting Matters............................ 1
1.01 Certain Defined Terms................................... 1
1.02 Principles of Construction.............................. 4
Section 2. The Commitment, Loan, the Notes and Prepayments............... 5
2.01 Loan.................................................... 5
2.02 Disbursements........................................... 5
2.03 Changes of the Commitment............................... 5
2.04 Fees.................................................... 6
2.05 The Notes............................................... 6
2.06 Optional and Mandatory Prepayments...................... 7
2.07 Premium for Prepayment of Fixed-Rate Loan............... 7
Section 3. Payments of Principal and Interest............................ 7
3.01 Repayment of Loan....................................... 7
3.02 Interest................................................ 8
3.03 Late Charges............................................ 9
3.04 Maximum Interest Rate................................... 9
3.05 Fixed Rate Option....................................... 10
Section 4. Payments; Computations; Etc................................... 10
4.01 Payments................................................ 10
4.02 Computations............................................ 11
4.03 Minimum Disbursement Amounts............................ 11
4.04 Certain Notices......................................... 11
Section 5. Yield Protection, Etc......................................... 11
5.01 Determination of Interest Rates Inadequate or Unfair.... 11
5.02 Increased Costs......................................... 12
5.03 Illegality.............................................. 12
5.04 Costs, Expenses and Losses.............................. 13
5.05 Taxes................................................... 13
Section 6. Conditions.................................................... 14
6.01 Initial Disbursement.................................... 14
6.02 Initial and Subsequent Disbursements.................... 14
6.03 Suspension or Cancellation.............................. 15
Section 7. Representations and Warranties................................ 15
Section 8. Covenants of the Borrower..................................... 15
Section 9. Events of Default ............................................ 16
Section 10. Miscellaneous................................................ 16
10.01 Notices................................................. 16
10.02 Waiver.................................................. 16
10.03 Amendments, Etc......................................... 17
10.04 Successors and Assigns.................................. 17
10.05 Assignments and Participations.......................... 17
10.06 Survival..... .......................................... 17
10.07 Counterparts............................................ 18
10.08 Governing Law; Jurisdiction; Service of Process; Etc.... 18
10.09 Waiver of Jury Trial.................................... 18
10.10 No Immunity............................................. 18
10.11 Judgment Currency....................................... 19
10.12 Use of English Language................................. 19
10.13 Captions................................................ 19
10.14 Severability............................................ 19
10.15 Confidential Information................................ 19
10.16 Set-Off................................................. 20
10.17 Indemnity............................................... 20
EXHIBIT A - Form of Note
EXHIBIT B - Form of Disbursement Request
EXHIBIT C - Form Disbursement Receipt
- ii -
LOAN AGREEMENT (this "Agreement") dated as of December 22.
1999, between: Comunicacion y Telefonia Rural S.A., a sociedad anonima duly
organized and validly existing under the laws of Chile (the "Borrower"); and the
Inter-American Development Bank, an international organization established by
the Articles of Agreement among its member countries ("IDB").
The Borrower has requested that IDB make a loan to it in an
aggregate principal amount not exceeding $25,000,000. IDB is prepared to make
such loan upon the terms and conditions hereof, and, accordingly, the parties
hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. Except as otherwise expressly
provided herein, capitalized terms used herein which are defined in the Common
Agreement (referred to below) shall have the meanings herein as defined therein.
As used herein, the following terms shall have the following meanings (all terms
defined in this Section 1.01 or in other provisions of this Agreement in the
singular to have the same meanings when used in the plural and vice versa):
"A Loan" means the portion of the Loan made by IDB to the
Borrower pursuant to Section 2.02(a).
"A Loan Interest Rate" means the rate of interest payable on
the outstanding principal amount of the A Loan from time to time, determined in
accordance with Section 3.02(a).
"Anticipated Income Stream" shall mean the aggregate interest
payments which would have been due on the Loan at the interest rates specified
in Section 3.05 hereof for the period from the prepayment date until the
sixteenth Principal Payment Date, assuming that: (a) no prepayment takes place;
(b) the schedule of installment dates is adhered to; and (c) all payments are
made on their due dates; provided, however, that if the maturity dates of the A
Loan and the B Loan are different, then the Anticipated Income Stream shall be
calculated separately for each of the A Loan and the B Loan.
"Applicable Law" means any law, statute, regulation,
ordinance, communique, enactment, judgment, order, decree, directive,
requirement or other similar legally binding decision of, or any legally binding
interpretation of, any of the foregoing by any Governmental Body whether now or
in the future in effect.
"Applicable Margin" means (a) with respect to a Disbursement
of the A Loan, 4.50% per annum and (b) with respect to a Disbursement of the B
Loan, a percentage per annum not to exceed 4.50%.
"Available Income Stream" shall mean the interest payments
which would have been due on the Loan at a rate equal to the aggregate of (a)
the Applicable Margin applicable to the A Loan and (b) the Current Swap Market
Fixed Rate for the period from the prepayment date until the sixteenth Principal
Payment Date, assuming that: (i) no prepayment takes place; (ii) the
IDB Loan Agreement
- 2 -
schedule of installment dates is adhered to; and (iii) all payments are made on
their due dates: provided, however, that if the maturity dates of the A Loan and
the B Loan are different, then the Available Income Stream shall be calculated
separately for each of the A Loan and the B Loan,
"B Loan" means the portion of the Loan which may be made or
acquired by the Participant(s) to the Borrower pursuant to Section 2.02(b).
"B Loan Interest Rate" means the rate of interest payable on
the outstanding principal amount of the B Loan from time to time, as set out in
Section 3.02(b).
"Commitment" means the obligation of IDB to make one or more
Disbursements in an aggregate principal amount up to but not exceeding
$25,000,000 (as the same may be reduced at any time or from time to time
pursuant to Section 2.03).
"Commitment Termination Date" means the date which is the
earliest of (a) the date on which the aggregate amount of the Commitment is
fully borrowed, (b) the unused Commitment is terminated in full or reduced to
zero, (c) December 31, 2000 and (d) the date upon which Completion of Network
Construction has occurred.
"Common Agreement" means the Common Agreement dated as of the
date hereof among the Borrower, IDB and EDC.
"Disbursement" means any amount of the Loan (in the form of
either an A Loan or a B Loan) disbursed from time to time pursuant to Section
2.02.
"Disbursement Request" means the notice by the Borrower to be
made in accordance with Sections 2.02 and 4.04, substantially in the form of
Exhibit B.
"Dollars" and "$" each means the lawful money of the United
States of America.
"Conversion Notice" shall have the meaning assigned to such
term in Section 3.05.
"Current Swap Market Fixed Rate" means the fixed rate quoted
in the relevant swap market as the equivalent of the U.S. Dollar six-month
LIBOR: (a) for a notional principal amount equal to the amount of the Loan then
outstanding, in Dollars; (b) for a period equal to the scheduled remaining life
of the Loan; (c) with an amortization schedule as provided in Section 3.01; (d)
on terms otherwise in accordance with the ISDA Terms (with any necessary
determinations being made by IDB in accordance with customary market practices);
and (e) calculated by IDB as of the prepayment date on the basis of quotations
in the relevant swap market for value on that date; provided, however, that if
the terms of the A Loan and the B Loan have different tenors and/or different
amortization schedules, then the Current Swap Market Fixed Rate shall be
calculated separately for each of the A Loan and the B Loan.
"Fixed Swap Equivalent Rate" means, as of any New York
Business Day, the fixed interest rate being offered in the London eurodollar
interbank market as the rate at which a floating interest rate obligation may be
exchanged for a fixed interest rate obligation of similar maturity, amount and
creditworthiness, as adjusted for transaction costs. The Fixed Swap
IDB Loan Agreement
- 3 -
Equivalent Rate shall be the prevailing swap rate on the applicable Interest
Rate Determination Date as determined by IDB with reference to
generally-accepted quoted swap rates. IDB's determination of the Fixed Swap
Equivalent Rate shall be conclusive in the absence of clearly demonstrable
error.
"IDB" has the meaning given to such term in the introductory
paragraph to this Agreement.
"Interest Payment Date" means November 15th and May 15th of
each calendar year occurring during the term of this Agreement, or, if any such
date is not a Business Day, the next succeeding Business Day.
"Interest Period" means:
(a) for any Disbursement, each period commencing on the date
of such Disbursement and ending on and including the date preceding the
next Interest Payment Date; or
(b) for those amounts in default payable pursuant to Sections
2.04, 5.01, 5.02, 5.03, 5.04 and 5.05 hereof and Sections 2.05, 2.06
and 10.04 of the Common Agreement, the period commencing on and
including the date of default and ending on and including the date
preceding the next Interest Payment Date;
and thereafter the period commencing on and including the relevant Interest
Payment Date and ending on and including the date preceding the next Interest
Payment Date.
"Interest Rate Determination Date" means (a) at any time when
the interest rate applicable to the Loan is calculated by reference to LIBOR,
the day which is two London Business Days prior to (i) the date of a
Disbursement or (ii) any Interest Payment Date and (b) at any time after the
exercise of the Borrower's option pursuant to Section 3.05, the day which is two
New York Business Days prior to (i) the date of a Disbursement or (ii) the
Interest Payment Date on which the option pursuant to Section 3.05 is exercised.
"ISDA Terms" means the terms and conditions set forth in the
Master Agreement (Multicurrency-Cross Border) published by the International
Swaps and Dealers Association, Inc.
"LIBOR" means, for any Interest Period, the rate per annum for
six-month deposits appearing on Page 3750 of the Dow Xxxxx Markets (Telerate)
Service at approximately 11:00 a.m. London time on the relevant Interest Rate
Determination Date as the rate for the offering of Dollar deposits having a term
comparable to such Interest Period, provided that if more than one such rate
appears, the offered rate shall be the arithmetic average (rounded upward, if
necessary, to the nearest 1/16th of 1%) of such offered rates. If for any reason
LIBOR cannot be determined by reference to Telerate Page 3750 on any Interest
Rate Determination Date, IDB shall notify the Borrower and shall determine LIBOR
as of such Interest Rate Determination Date using the arithmetic average
(rounded upward, if necessary, to the nearest 1/16th of 1%) of such offered
rates quoted by three internationally recognized banking
IDB Loan Agreement
- 4 -
institutions to be selected by the Senior Lenders on such Interest Rate
Determination Date. All determinations of LIBOR by IDB shall be conclusive
absent clearly demonstrable error.
"Loan" means the loan provided for in Section 2.01. Each
reference to the "Loan" at any time after the execution and delivery of a
Participation Agreement shall be deemed to be a reference to the A Loan and B
Loan, collectively.
"Maintenance Amount" has the meaning assigned to such term in
Section 5.02.
"Net Present Value" means the value of the relevant
Anticipated Income Stream discounted (with stops on the same dates as would have
been Payment Dates) back to the prepayment date from each of the relevant
Payment Dates at a discount rate equal to the Current Swap Market Fixed Rate.
"Notes" means the promissory notes provided for in Section
2.05(a), substantially in the form of Exhibit A.
"Participant" means a Person designated by IDB from whom IDB
receives a formal commitment to acquire a Participation in the B Loan in the
form of an executed Participation Agreement and, provided the prior written
consent of IDB is obtained to such succession or assignment, any successor or
assignee of such Person.
"Participation" means the interest of a Participant in the B
Loan or, as the context may require, in a Disbursement of the B Loan.
"Participation Agreement(s)" means each Participation
Agreement entered into between IDB and a Participant from time to time and
pursuant to which such Participant agrees to acquire a Participation.
"Paying Agency Agreement" means the Paying Agency Agreement to
be entered into among the Borrower, IDB and the Paying Agent, in all respects
satisfactory to IDB in its sole discretion, with respect to the collection and
administration of disbursements and payments made by the Borrower in respect of
the Loan and other amounts payable hereunder and under the other Transaction
Documents; provided, however, that, in the event there is not more than one
Participant in the B Loan, there shall be no Paying Agency Agreement.
"Paying Agent" means the paying agent appointed pursuant to
the terms of the Paying Agency Agreement, if any, in its capacity as paying
agent thereunder, or any successor agent appointed pursuant to the terms of the
Paying Agency Agreement.
"Principal Payment Dates" means May 15th and November 15th of
each calendar year, commencing upon May 15, 2001, and ending on November 15,
2008.
1.02 Principles of Construction. Section 1.02 of the Common
Agreement is incorporated herein by reference as if fully set forth herein.
IDB Loan Agreement
- 5 -
Section 2. The Commitment Loan, the Notes and Prepayments.
2.01 Loan. IDB agrees, on the terms and subject to the
conditions of this Agreement, to make a loan (the "Loan") to the Borrower in
Dollars on or before the Commitment Termination Date in an aggregate principal
amount up to but not exceeding the amount of the Commitment. The Loan, which
will be disbursed as provided in Section 2.02, may, subject to the execution and
delivery of a Participation Agreement, consist of:
(a) an A Loan, to be funded by IDB from its ordinary capital
resources; and
(b) a B Loan, to be funded by Participants, if any, pursuant
to their respective Participation Agreements.
2.02 Disbursements. Disbursements of the Loan shall be made by
IDB, in Dollars, upon receipt of a Disbursement Request from the Borrower and
the Borrower's compliance with the provisions of Section 6 hereof, to the credit
of an account of the Borrower maintained with a financial institution in New
York, New York, advised to IDB, or to the credit of another account maintained
with a bank in such place as the Borrower and IDB shall from time to time agree
upon. The Borrower shall, in accordance with Section 4.04, deliver to IDB a
request for such Disbursement (a "Disbursement Request") in writing,
substantially in the form of Exhibit B and upon receipt of the proceeds of each
Disbursement or any portion thereof, the Borrower shall execute and deliver to
IDB within three Business Days after the Disbursement a receipt therefor
substantially in the form of Exhibit C. In the event that a Participation
Agreement has been executed and delivered prior to the Commitment Termination
Date, IDB shall have no obligation to make a Disbursement of the B Loan except
to the extent that each Participant shall have made available to IDB, in
immediately available funds, its proportionate share of such Disbursement in
accordance with the Participation Agreement to which it is a party.
2.03 Changes of the Commitment.
(a) Voluntary Reduction of Commitment. The Borrower shall have
the right only on one occasion during the term of this Agreement to terminate or
reduce the unutilized amount of the Commitment; provided that (i) the Borrower
shall give notice of each such termination or reduction as provided in Section
4.04, (ii) a partial reduction shall be in an amount at least equal to
$1,000,000 and (iii) the Borrower shall demonstrate to the written satisfaction
of IDB, either (A) that sufficient available permitted sources of funds exist to
achieve Completion of Network Construction or (B) that additional funds are not
needed to achieve Completion of Network Construction.
(b) Automatic Termination of Commitment. The Commitment shall
be automatically reduced to zero at the close of business on the Commitment
Termination Date. Any borrowing hereunder shall be deemed to reduce
automatically the Commitment in the amount of such borrowing. Amounts borrowed,
and subsequently repaid or prepaid, may not be reborrowed.
(c) No Reinstatement of Commitment. The Commitment once
terminated or reduced may not be reinstated.
IDB Loan Agreement
- 6 -
2.04 Fees.
(a) Commitment Fee. The Borrower shall pay to IDB a commitment
fee on the daily average unutilized amount of the Commitment, for the period
from and including the date hereof to but not including the earlier of the date
the Commitment is terminated and the Commitment Termination Date, at a rate per
annum equal to 0.75%. Accrued commitment fee shall be payable on each Interest
Payment Date including the Interest Payment Date first following the earlier of
the date the Commitment is terminated and the Commitment Termination Date.
(b) Front-End Fee. The Borrower shall pay to IDB a front-end
fee in an amount equal to $250,000 on the date of the initial Disbursement of
the Loan.
(c) Administration Fee. In the event that a Participation
Agreement is executed and delivered at any time during the term of this
Agreement, the Borrower shall pay to IDB on the first Interest Payment Date
following such execution and delivery of such Participation Agreement and each
anniversary thereof throughout the term of this Agreement an administration fee
in an amount equal to the lesser of (i) $25,000 and (ii) the product of (A)
$5,000 multiplied by (B) the number of Participants. The fee referred to in the
preceding sentence shall be in addition to the Borrower's obligation to pay for
any costs incurred under the Paying Agency Agreement and to reimburse any
consultants' fees in connection with such administrative role.
(d) Underwriting Fee. Upon the execution and delivery of any
Participation Agreement, the Borrower shall pay to the Participant party to such
Participant Agreement an amount equal to 0.5% of the B Loan acquired pursuant
thereto.
2.05 The Notes.
(a) As additional evidence of the Borrower's obligation to pay
the principal of the Loan as provided herein, the Borrower shall execute and
deliver to IDB or, at the direction of IDB, to the Custodian for the benefit of
IDB, on the date of each Disbursement pursuant to Section 2.02 hereof, a duly
executed and notarized promissory note of the Borrower (such Note also to be
signed by Chilean Holdco, BVI Holdco and SR (BV) Holdings) on which stamp tax
has been paid (such payment to be certified by the Notary Public that notarized
such Note), payable on demand to the order of IDB, dated the date of such
Disbursement, and in a principal amount equal to the amount of the Disbursement
to be made by IDB on such date. The rights of IDB under this Agreement, and
under each of the other Transaction Documents, shall not be limited, reduced or
otherwise affected by the existence of, or any action with respect to, the
Notes; provided, however, that any reduction (by repayment, prepayment or
otherwise) in the principal amount of any Disbursement hereunder or repayment or
prepayment of the face amount of the Notes, as the case may be, shall discharge
pro tanto the equivalent face amount of the Notes or, as the case may be, the
corresponding principal amount of any Disbursement hereunder.
(b) The Borrower shall re-execute the Notes as and when
requested to do so by IDB or the Custodian for the benefit of IDB and in any
event upon ten month intervals of the
IDB Loan Agreement
- 7 -
date of each Disbursement; it being understood that IDB or the Custodian may
re-execute the Notes pursuant to the authority contained in the Power of
Attorney described in the IDB Custodian Agreement.
(c) Upon the payment in full of the obligations evidenced
thereby, IDB shall cancel, and return, or instruct the Custodian to cancel and
return to the Borrower, each such Note so paid in full.
(d) IDB shall not be entitled to make a demand for payment
under any Note unless the amounts so demanded are then due and payable (whether
at scheduled maturity, by mandatory prepayment, acceleration or otherwise) by
the Borrower in accordance with the terms of this Agreement. If IDB exercises
any right in any court in Chile under any Note delivered pursuant to this
Agreement, it shall not be required for such purpose to evidence to the Borrower
or any other Person that such Notes represent obligations of the Borrower under
this Agreement or any other Person under any other Transaction Document nor that
any condition herein or therein has been fulfilled.
2.06 Optional and Mandatory Prepayments. The parties hereto
agree that any optional or mandatory prepayment of the Loan shall be made in
accordance with Section 2.05 or 2.06, as the case may be, of the Common
Agreement.
2.07 Premium for Prepayment of Fixed-Rate Loan. In addition to
the prepayment fees described in Sections 2.05 and 2.06 of the Common Agreement,
if the Loan has been converted to a fixed rate of interest loan, then, on the
date of any prepayment of the Loan in accordance with Section 2.05 or Section
2.06 of the Common Agreement, the Borrower shall pay a premium, in Dollars, in
an amount equal to the positive difference, if any, between the Net Present
Value of the Anticipated Income Stream and the Net Present Value of the
Available Income Stream or, in the case of a partial prepayment, the same
proportion of such difference as the proportion of the amount of the Loan to be
prepaid to the amount of the Loan then outstanding. The determination by IDB of
the prepayment premium shall be final and conclusive unless shown by the
Borrower to have involved manifest error.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loan. The Borrower hereby promises to pay on
the Principal Payment Dates to IDB the principal of the Loan in sixteen
consecutive installments in amounts equal to the percentages (set forth below)
of the aggregate principal amount of the Loan outstanding on the date following
the date of the final Disbursement of the Loan hereunder, as follows:
Installment Number Percentage
------------------ ----------
1-4 5.00%
5-8 6.00%
9-16 7.00%
provided that the Borrower shall pay the aggregate outstanding principal amount
of the Loan on November 15, 2008. Amounts paid pursuant to this Section 3.01 may
not be reborrowed. Upon
IDB Loan Agreement
- 8 -
the execution and delivery of any Participation Agreement. IDB shall notify the
Borrower in writing the portion of each subsequent installment of principal
which should be paid to IDB and to each Participant.
3.02 Interest.
(a) Provisions Specific to the A Loan. Subject to Sections
3.03 and 3.04, the Borrower shall pay interest on the outstanding principal
amount of the A Loan from time to time as follows:
(i) During each Interest Period, the A Loan (or, in respect of
the first Interest Period of each Disbursement, the amount of that
Disbursement) shall bear interest at the A Loan Interest Rate (as
determined under Section 3.02(a)(ii) below) for that Interest Period;
(ii) The A Loan Interest Rate shall equal the sum of LIBOR
plus the Applicable Margin. The A Loan Interest Rate will be reset
semiannually on each Interest Rate Determination Date during each year,
will apply to the total outstanding disbursed amount of the A Loan at
such dates and will accrue for the then relevant Interest Period
between the immediately succeeding Interest Payment Date and the next
succeeding Interest Payment Date. For Disbursements made on a date
other than an Interest Payment Date, interest will accrue from the
Disbursement Date until the next Interest Payment Date at the interest
rate prevailing at the Interest Rate Determination Date plus the
Applicable Margin corresponding to the monthly quoted LIBOR interest
period equal to or greater than the period from the Disbursement to the
next Interest Payment Date;
(iii) On each Interest Rate Determination Date for any
Interest Period, IDB shall, in accordance with the relevant subsection
above, determine the A Loan Interest Rate applicable to that Interest
Period and promptly notify the Borrower thereof; and
(iv) The determination by IDB, from time to time, of the A
Loan Interest Rate shall be final and conclusive and shall be binding
on the Borrower (absent manifest error).
(b) Provisions Specific to the B Loan. Subject to Sections
3.03 and 3.04, the Borrower shall pay interest on the outstanding principal
amount of the B Loan from time to time as follows:
(i) The B Loan (or, in respect of the first Interest Period of
each Disbursement, the amount of that Disbursement) shall bear interest
at the B Loan Interest Rate (as determined under Section 3.02(b)(ii)
below) for that Interest Period;
(ii) The B Loan Interest Rate shall equal the sum of LIBOR
plus the Applicable Margin. The B Loan Interest Rate will be reset
semiannually on each Interest Rate Determination Date during each year,
will apply to the total outstanding disbursed amount of the B Loan at
such dates and will accrue for the then relevant Interest Period
between the immediately succeeding Interest Payment Date and the next
succeeding Interest Payment Date. For Disbursements made on a date
other than an Interest Payment
IDB Loan Agreement
- 9 -
Date, interest will accrue from the Disbursement Date until the next
Interest Payment Date at the interest rate prevailing at the Interest
Rate Determination Date plus the Applicable Margin corresponding to the
monthly LIBOR interest period equal to or greater than the period from
the Disbursement to the next Interest Payment Date:
(iii) On each Interest Rate Determination Date for any
Interest Period. IDB shall, in accordance with the relevant subsection
above, determine the B Loan Interest Rate applicable to that Interest
Period and promptly notify the Borrower thereof; and
(iv) The determination by IDB, from time to time, of the B
Loan Interest Rate shall be final and conclusive and shall be binding
on the Borrower (absent manifest error).
3.03 Late Charges.
(a) Any principal of the Loan that is not paid by the Borrower
when due hereunder and, to the extent permitted by Applicable Law, any interest
on the Loan that is not paid by the Borrower when due hereunder, shall bear
interest, payable on demand, for each day from and including the date payment
thereof was due to but excluding the date actual payment is received by IDB at a
rate per annum equal to the sum of (i) two percent (2%) per annum (or such lower
rate as may be required by Applicable Law) plus (ii) the rate of interest
(including the Applicable Margin) otherwise provided in Section 3.02(a) (in the
case of the principal of, and interest on, the A Loan) or Section 3.02(b) (in
the case of principal of, and interest on, the B Loan).
(b) All fees and other Obligations (other than principal of,
and interest on, the A Loan and the B Loan) that are not paid by the Borrower
when due hereunder or under any other applicable Financing Document shall bear
interest, payable on demand, for each day from and including the date payment
thereof was due to but excluding the date actual payment is received by IDB at a
rate per annum equal to the sum of (i) two percent (2%) per annum (or such lower
rate as may be required by Applicable Law) plus (ii) the rate of interest
(including the Applicable Margin) provided in Section 3.02(a).
3.04 Maximum Interest Rate.
(a) No provision of this Agreement shall require, or be
construed as requiring, the Borrower to pay interest or other charges on the
Loan at a rate exceeding the maximum rate of interest or other charges permitted
by Applicable Law.
(b) If the amount of interest payable on the Loan on any
Interest Payment Date in respect of the immediately preceding Interest Period,
computed pursuant to Section 3.02(a) or Section 3.02(b), as the case may be,
would exceed the maximum amount permitted by Applicable Law, the amount of
interest or other charges payable on such Interest Payment Date shall be
automatically reduced to such maximum permissible amount.
(c) If the amount of interest payable on the Loan for any
Interest Period is reduced pursuant to Section 3.04(b) and the amount of
interest payable on the Loan for any subsequent Interest Period, computed
pursuant to Section 3.02(a) or Section 3.02(b), as the case
IDB Loan Agreement
- 10 -
may be, would be less than the maximum amount permitted by Applicable Law, then
the amount of interest payable on the Loan for such subsequent Interest Period
shall be automatically increased to such maximum permissible amount; provided
that at no time shall the aggregate amount of interest paid pursuant to this
Section 3.04(c) exceed the aggregate amount by which interest payable on the
Loan has been reduced pursuant to Section 3.04(b).
(d) Except to the extent required pursuant to Applicable Law,
none of the fees referred to in Section 2.04, any legal fees nor any other fees,
charges or Obligations payable hereunder or under the other Transaction
Documents shall be included as interest in calculating the amount of interest
payable on the Loan.
3.05 Fixed Rate Option.
(a) The Borrower shall have the right, once during the life of
the Loan, subject to the approval of the Central Bank under Applicable Law, to
convert both the A Loan Interest Rate and the B Loan Interest Rate from
LIBOR-based variable rates to a fixed interest rate, by providing written notice
of the exercise of such conversion right to IDB (a "Conversion Notice"), not
later than thirty (30) days prior to the Interest Payment Date as of which such
conversion is to be effective. Upon such Interest Payment Date following the
delivery of such a Conversion Notice, (i) the fixed interest rate applicable to
the A Loan shall be equal to the sum of: (A) the Fixed Swap Equivalent Rate
applicable to the A Loan on the Interest Rate Determination Date, plus (B) the
Applicable Margin for the A Loan, plus (C) 1/8 of one percent (0.125%) and (ii)
the fixed interest rate applicable to the B Loan shall be equal to the sum of:
(A) the Fixed Swap Equivalent Rate applicable to the B Loan on the Interest Rate
Determination Date, plus (B) the Applicable Margin for the B Loan, plus (C) 1/8
of one percent (0.125%).
(b) The Borrower shall pay to IDB on the Interest Payment Date
on which such conversion is to be effective a conversion fee of 1/8 of one
percent (0.125%) on the outstanding amount of the Loan on the Interest Payment
Date as of which such conversion is to be effective.
Section 4. Payments; Computations; Etc.
4.01 Payments.
(a) Payments by the Borrower. Except to the extent otherwise
provided herein, all payments of principal, interest and other amounts to be
made by the Borrower to IDB under this Agreement and the Notes, and, except to
the extent otherwise provided therein, all payments to be made by the Borrower
to IDB under any other Financing Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, not
later than 1:00 p.m., New York City time, on the date on which such payment
shall become due and in funds for same-day settlement, (a) in respect of the A
Loan, to IDB at Bankers Trust Company, New York, ABA number 000000000,
Attention: MT-Foreign Section, for credit to account of IDB-PR1, account number
00000000, or at such other account or financial institution as IDB may, from
time to time, notify the Borrower and (b) in respect of the B Loan, to such
accounts(s) as IDB shall notify to the Borrower. Any payments received after
1:00 p.m. (New York City time) will be considered for all purposes as having
been made on the next following Business Day.
IDB Loan Agreement
- 11 -
(b) Application of Payments. All payments made by or for the
account of the Borrower under this Agreement or under the other Financing
Documents will be applied first, to all amounts then due and payable other than
principal and interest in such order as IDB may elect, second, to default
interest owing pursuant to Section 3.03, third, to interest due and payable
pursuant to Section 3.02, fourth, to principal due and payable, and lastly, to
prepayment of installments of principal in inverse order of maturity; provided,
however, that any prepayment made by the Borrower pursuant to Section 2.06(d) of
the Common Agreement shall be applied pro rata to the remaining principal
installments to be paid in accordance with Section 3.01. Notwithstanding the
foregoing, if IDB shall at any time receive less than the full amount then due
and payable to it in respect of the Obligations of the Borrower under this
Agreement or any other Financing Document, IDB shall have the right (as between
IDB and the Borrower) to allocate and apply such payment in any way or manner
and for such purpose or purposes under this Agreement or any other Financing
Document as IDB in its sole discretion shall determine, notwithstanding any
instruction that the Borrower may give to the contrary.
(c) Extensions to Next Business Day. If the due date of any
payment under this Agreement or the Notes would otherwise fall on a day that is
not a Business Day, such date shall be extended to the next succeeding Business
Day, and interest shall be payable for any principal so extended for the period
of such extension.
4.02 Computations. Interest on the Loan and the fees set forth
in Section 2.04 shall be computed on the basis of a year of 360 days and actual
days elapsed (including the first day but excluding the last day) occurring in
the period for which payable.
4.03 Minimum Disbursement Amounts. Each Disbursement, other
than the last hereunder, shall be in an amount at least equal to $5,000,000.
4.04 Certain Notices. Notices by the Borrower to IDB of
terminations or reductions of the Commitment, of Disbursements and of optional
prepayments of the Loan shall be irrevocable and shall be effective only if
received by IDB not later than 10:00 a.m., New York City time, on the number of
Business Days prior to the date of the relevant termination, reduction,
Disbursement or prepayment specified below or as otherwise acceptable to IDB:
Number of
Notice Business Days Prior
------ -------------------
Termination or reduction of the Commitment 30
Disbursements of the Loan 10
Optional prepayment of the Loan 60
Any notice of termination or reduction of the Commitments shall specify the
amount of the Commitment to be terminated or reduced and be in writing.
Section 5. Yield Protection. Etc.
5.01 Determination of Interest Rates Inadequate or Unfair, (a)
If, on or prior to the first day of any Interest Period:
IDB Loan Agreement
- 12 -
(i) IDB determines, in its reasonable judgment, that deposits
in Dollars (in the applicable amounts) are not being offered to IDB or
any Participant in the London interbank market for such Interest
Period; or
(ii) IDB shall determine, in its reasonable judgment, that the
LIBOR rate as determined by IDB will not adequately and fairly reflect
the cost to IDB or any Participant of funding its portion of the IDB
Loan for such Interest Period;
then IDB shall forthwith give notice thereof (which notice shall describe in
reasonable detail the basis for such determination) to the Borrower, whereupon
until IDB notifies the Borrower that the circumstances giving rise to such
determination no longer exist, the obligations of IDB to make the Loan (or such
Participant's portion thereof) shall be suspended until such time as IDB and the
Participants may again make the Loan or portion thereof (in which case the
provisions of the immediately succeeding paragraph shall be applicable).
(b) If the obligation of IDB to make the Loan (or a
Participant's obligation to make its respective portion of the B Loan), is
suspended pursuant to subsection (a), above (the portion of the Loan so
affected, an "Affected Loan"), then the Affected Loan shall be automatically
converted into a loan (as such, the "Converted Loan") which bears interest at a
rate per annum to be designated by IDB in its sole discretion (which rate will,
to the extent possible, reflect the credit spread for such Affected Loan and the
cost to IDB of funding such Converted Loan (or the cost to such Participant of
funding its portion of the Converted Loan)), whereupon all prepayments and
payments of principal which would otherwise be applied to the Affected Loan
shall be applied instead to the Converted Loan, and the Affected Loan shall be
made or continued instead as the Converted Loan.
5.02 Increased Costs. In the event of any change in Applicable
Law or regulation or the interpretation thereof by any Governmental Body charged
with the administration thereof occurring after the date of this Agreement which
imposes on IDB any condition regarding the making or maintaining of the Loan
which increases IDB's net incremental cost of making or maintaining the Loan
(including, without limitation, any reserve, special deposit, capital adequacy
or similar requirement and any tax (other than any tax imposed on IDB's overall
net income), duty or similar charge), IDB from time to time shall notify the
Borrower of such increased cost and the Borrower shall pay to IDB on demand an
amount equal to such increased cost (the "Maintenance Amount"). The IDB's
determination of the Maintenance Amount shall be conclusive absent clearly
demonstrable error, and IDB may use any reasonable averaging and attribution
methods in determining the Maintenance Amount.
5.03 Illegality. Notwithstanding anything to the contrary
contained in this Agreement, if, subsequent to the date of this Agreement, any
change is made in any Applicable Law or the interpretation or application
thereof by any Governmental Body shall make it unlawful for IDB or any
Participant to continue to maintain or to fund the Loan or the relevant
Participation or any portion thereof, the Borrower shall, upon request by IDB,
prepay promptly in full that portion of the principal amount of the Loan which
IDB advises is so affected, together with all accrued and unpaid interest and
Maintenance Amount (if any) (and, if such prepayment is not made on an Interest
Payment Date, any amount payable in respect of prepayment under Section 5.04)
thereon and other amounts payable under Section 5.04 and the right of the
IDB Loan Agreement
- 13 -
Borrower to disbursement of that portion of the undisbursed Loan shall
terminate: provided, however, that upon a prepayment by the Borrower under this
Section 5.03. the Borrower shall not be responsible for the prepayment fees set
forth in Section 2.05(a) (vi) and Section 2.05(b) of the Common Agreement.
5.04 Costs. Expenses and Losses. If IDB or any Participant
shall incur costs, expenses or losses, as a result of:
(a) any failure by the Borrower (i) to pay any Obligations due
under this Agreement or any other Financing Document on the due date
therefor, (ii) to borrow in accordance with any Disbursement Request
made pursuant to Section 2.02, (iii) to make any prepayment in
accordance with a notice of prepayment pursuant to Section 4.04 hereof
and Section 2.05 of the Common Agreement or (iv) to make any repayment
or prepayment required pursuant to Section 3.01 hereof or Section 2.06
of the Common Agreement, as the case may be, on any date other than the
scheduled date for payment thereof; or
(b) any prepayment of all or any portion of the Loan on a date
other than an Interest Payment Date;
the Borrower shall pay, in Dollars, upon request by IDB, the amount which IDB
shall notify to the Borrower as being the aggregate of such actual costs,
expenses and losses. For the purposes of the preceding sentence, "costs,
expenses or losses" shall include any interest paid or payable to cover any
unpaid amount, any "broken funding" or hedge liquidation costs, and any loss,
premium, penalty or expense which may be incurred in liquidating or employing
deposits of or borrowings from third parties in order to make, maintain or fund
the Loan or a Participation therein or any portion thereof (but in the case of a
late payment, after taking into account any late payment interest received under
Section 3.02).
5.05 Taxes.
(a) Payments to Be Made Free and Clear of Covered Taxes. The
Borrower acknowledges that under the Agreement Establishing the Inter-American
Development Bank dated December 30, 1959, IDB and its properties, assets, income
and transactions are immune from all taxes imposed by the IDB Members. All
payments on account of the principal of and interest on the Loan, fees and all
other amounts payable hereunder by the Borrower to or for account of IDB or, if
applicable, any Participant, including, without limitation, amounts payable
under paragraph (b) of this Section 5.05, shall be made free and clear of and
without reduction or liability for Covered Taxes. The Borrower will pay all
Covered Taxes, without charge to or offset against any amount due to IDB or, if
applicable, any Participant, prior to the date on which penalties attach
thereto, except for any Covered Taxes (other than Covered Taxes imposed on or in
respect of any amount payable hereunder, under the Notes or under any other
Financing Document) the payment of which is being contested in good faith and by
proper proceedings and against which adequate reserves are being maintained, so
long as no claim for such Covered Taxes is made on IDB or, if applicable, any
Participant.
IDB Loan Agreement
- 14 -
(b) Indemnification by the Borrower. The Borrower shall
indemnify IDB and any Participant against, and reimburse IDB and any Participant
on demand for, any Covered Taxes and any loss, liability, claim or expense,
including interest, penalties and legal fees, that IDB or any Participant may
incur at any time arising out of or in connection with any failure of the
Borrower to make any payment of Covered Taxes when due.
(c) Gross-up of Covered Taxes. In the event that the Borrower
is required by applicable law, decree or regulation to deduct or withhold
Covered Taxes from any amounts payable on, under or in respect of this Agreement
or the Loan (including, without limitation, the Chilean income taxes referred to
in paragraph (e) of this Section 5.05), the Borrower shall promptly pay the
Person entitled to such amount such additional amounts as may be required, after
the deduction or withholding of Covered Taxes, to enable such Person to receive
from the Borrower on the due date thereof, an amount equal to the full amount
stated to be payable to such Person under this Agreement; provided that in the
event the Borrower is prevented by operation of law or otherwise from paying (or
causing to be paid) such Covered Taxes, the principal, or (as the case may be)
interest or other payment due under any Financing Document shall be increased to
such amount as may be necessary so that each recipient of any payment under any
Financing Document receives the amount such recipient would have received had no
such Covered Taxes been imposed. The foregoing provisions shall not be
applicable to taxes, duties, fees and other charges which are a direct
consequence of a Participant having its principal office in Chile or having or
maintaining a permanent office or establishment in Chile if and to the extent
that the relevant Participation is acquired by such permanent office or
establishment.
(d) Evidence of Payment of Covered Taxes. The Borrower shall
furnish to IDB, original or certified copies of the official tax receipts in
respect of each payment of Covered Taxes required under this Section 5.05,
within 30 days after the date such payment is made, and the Borrower shall
promptly furnish to IDB any other information, documents and receipts that IDB
may reasonably require to establish to its satisfaction that full and timely
payment has been made of all Covered Taxes required to be paid under this
Section 5.05.
(e) Representation as to Covered Taxes. The Borrower
represents and warrants to IDB that, on and as of the date hereof, none of this
Agreement or any of the other Financing Documents, or the execution or delivery
by the Borrower of this Agreement or any of the other Financing Documents, is
subject to any Covered Taxes, and no payment to be made by the Borrower under
this Agreement is subject to any Covered Taxes, except for stamp tax at the rate
of 1.2% applicable on the principal amounts disbursed.
Section 6. Conditions.
6.01 Initial Disbursement. The obligation of IDB to make the
initial Disbursement hereunder and the obligation of the Borrower to make any
payments hereunder is, in each case, subject to the satisfaction or waiver of
each of the conditions precedent set forth in Section 6.01 of the Common
Agreement.
6.02 Initial and Subsequent Disbursements. The obligation of
IDB to make any Disbursement (including the initial Disbursement) of the Loan to
the Borrower is subject to the
IDB Loan Agreement
- 15 -
satisfaction or waiver of each of the conditions precedent set forth in Section
6.02 of the Common Agreement and to Section 6.03 hereof.
6.03 Suspension or Cancellation.
(a) IDB may, by notice to the Borrower, suspend or cancel the
right of the Borrower to receive Disbursements hereunder, in whole or in part,
if any of the following occur:
(i) the initial Disbursement shall not have been made prior to
June 18, 2000; or
(ii) IDB determines that a circumstance exists that could
reasonably be expected to have a Borrower Material Adverse Effect or a
SRT Material Adverse Effect; or
(iii) a Default or Event of Default has occurred and is
continuing.
Upon the giving of such notice, any part of the Loan covered by the notice which
has not been disbursed shall be suspended or canceled, as directed by IDB in its
sole discretion. The exercise by IDB of the right of suspension shall not
preclude IDB from exercising its right of cancellation as provided herein,
either for the same or another reason, and shall not limit any other rights of
IDB under any other provision of this Agreement or any of the other Financing
Documents.
(b) IDB shall not be obligated to make any Disbursement
hereunder if it determines at the time of such proposed Disbursement that it
does not have access (for reasons outside of its control) to appropriate funding
sources.
(c) The Commitment Fee applicable to any undisbursed portion
of the Loan will continue to accrue and be payable during any suspension of
IDB's obligation to make Disbursements pursuant to Section 6.03(a) and Section
6.03(b).
(d) Notwithstanding any cancellation or suspension of the
Commitment, all the provisions of this Agreement and the other Financing
Documents shall continue in full force and effect except as specifically
provided.
(e) The Borrower's right to request a Disbursement terminates
on the Commitment Termination Date.
Section 7. Representations and Warranties. The Borrower
confirms the representations and warranties contained in Section 7 of the Common
Agreement, as if made on the date of this Agreement, which representations and
warranties are incorporated herein by reference as if fully set forth herein, in
accordance with their terms.
Section 8. Covenants of the Borrower. The Borrower agrees
that, so long as IDB has any Commitment hereunder or any amount payable under
this Agreement remains unpaid, it shall observe and perform each of the
covenants set forth in Section 8 of the Common Agreement, which covenants and
agreements are incorporated by reference in this Agreement as if fully set forth
herein, in accordance with their terms.
IDB Loan Agreement
- 16 -
Section 9. Events of Default. If an Event of Default under and
as defined in the Common Agreement shall occur and be continuing, then IDB shall
have (in addition to any and all other available remedies at law and in equity)
each of the remedies to which it is entitled as provided in Section 9 of the
Common Agreement.
Section 10. Miscellaneous.
10.01 Notices.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, any notice, claim, request,
demand, consent designation, direction, instruction, certificate, report or
other communication to be given hereunder shall be given in writing in the
English language (or accompanied by an accurate English language translation
upon which the recipient shall have the right to rely for all purposes) and will
be deemed duly given when (i) personally delivered, (ii) sent by facsimile
transmission (but only if, immediately after the transmission, the sender's
facsimile machine records in writing the correct answer back) or (iii) ten days
have elapsed after mailing by certified or registered mail, postage prepaid, in
each case addressed to a party at its address or facsimile transmission number
as set forth below or to another address or facsimile number of which that party
has given notice in accordance herewith. Notice of address or facsimile number
change shall be effective only upon receipt:
(A) if to the Borrower, to it at Av. Vitacura 2771, Oficina
000-X, Xxx Xxxxxx, Xxxxxxxx, Xxxxx, Attention of Xxxxx Xxxxxxx
(Telecopy No. 000-000-0000, Telephone No. 000-000-0000); and
(B) if to IDB, to the Inter-American Development Bank, Private
Sector Department, 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Loan Administration Unit (Telecopy No. 202-623-3639).
(b) Notwithstanding anything to the contrary contained herein
or in any other Financing Document, and to the maximum extent permitted by law,
any notice or demand required to be given by IDB to the Borrower hereunder or
under any other Financing Document shall not be required to be given if the
giving thereof is then prohibited by, or would then result in a violation of,
any Applicable Law. The Borrower hereby irrevocably and unconditionally waives,
to the maximum extent permitted by law, the giving of any such notice or demand
in the circumstances described in the preceding sentence. The failure to give
any such notice or demand shall not modify or adversely affect the obligations,
duties and liabilities of the Borrower hereunder and under any of the other
Financing Documents, each of which obligations, duties and liabilities shall be
performed as though such notice or demand were given as contemplated herein and
in the other Financing Documents.
10.02 Waiver. No failure on the part of IDB to exercise and no
delay in exercising, and no course of dealing with respect to, any right, power
or privilege under this Agreement or the Notes shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement or the Notes preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
IDB Loan Agreement
- 17 -
The Borrower irrevocably waives, to the fullest extent
permitted by applicable law, any claim that any action or proceeding commenced
by IDB relating in any way to this Agreement should be dismissed or stayed by
reason, or pending the resolution, of any action or proceeding commenced by the
Borrower relating in any way to this Agreement whether or not commenced
earlier. To the fullest extent permitted by applicable law, the Borrower shall
take all measures necessary for any such action or proceeding commenced by IDB
to proceed to judgment prior to the entry of judgment in any such action or
proceeding commenced by the Borrower.
10.03 Amendments, Etc. No provision of this Agreement may be
modified or supplemented except by an instrument in writing signed by the
Borrower and IDB.
10.04 Successors and Assigns. This Agreement shall be binding
upon and enure to the benefit of the parties hereto and their respective
successors and permitted assigns.
10.05 Assignments and Participations.
(a) Assignments by the Borrower. The Borrower may not assign
any of its rights or obligations hereunder, under the Notes or the other
Financing Documents without the prior consent of IDB and any such assignment in
contravention of the terms hereof shall be null and void.
(b) Assignment by the Lender. IDB may assign all or a portion
of its Loan, its Notes and its Commitment to any Person. Upon execution and
delivery by the assignee to the Borrower of an instrument in writing pursuant to
which such assignee agrees to become a lender hereunder, and so long as no
Default has occurred and is continuing, upon consent thereto by the Borrower
(such consent not to be unreasonably withheld or delayed), the assignee shall
have (unless provided in such assignment with the consent of he Borrower) the
obligations, rights and benefits of the Lender hereunder in respect of the
Commitment and Loans therefore held by the Lender, and the Lender shall be
released form the Commitment, the extent of such assignment.
(c) Participations. IDB may sell or agree to sell to one or
more Participants a Participation in all or any part of the Loan, or in the
Commitment.
(d) Provision of Information to Assignees and Participants.
IDB may furnish any information concerning the Borrower in the possession of IDB
from time to time to Participants (including prospective assignees and
participants) provided that such party has entered into a confidentiality and
non-disclosure agreement with the Borrower in a form acceptable to the Borrower
acting reasonably.
10.06 Survival. The obligations of the Borrower under Sections
5.01, 5.04 and 5.05 hereof and Section 10.04 of the Common Agreement shall
survive the repayment of the Loan and the termination of the Commitment. In
addition, each representation and warranty made, or deemed to be made by a
notice of any Disbursement, herein or pursuant hereto or pursuant to any
Transaction Document shall survive the making of such representation and
warranty, and IDB shall not be deemed to have waived, by reason of making any
Disbursement hereunder, any Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that IDB may have had notice or knowledge or
IDB Loan Agreement
- 18 -
reason to believe that such representation or warranty was false or misleading
at the time such Disbursement was made.
10.07 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement; provided that original signature pages
of each party hereto are delivered to each other party hereto within five
Business Days.
10.08 Governing Law; Jurisdiction; Service of Process; Etc.
(a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Submission to Jurisdiction and Venue; Process Agent.
Section 10.08 of the Common Agreement is incorporated herein by reference as if
fully set forth in this Agreement and the Borrower confirms its consent and
submission to jurisdiction and venue, and its appointment of CT Corporation
System as its agent for the service of process.
10.09 Waiver of Jury Trial. THE BORROWER HEREBY ACKNOWLEDGES
THAT IDB SHALL BE ENTITLED UNDER APPLICABLE LAW, INCLUDING THE PROVISIONS OF THE
INTERNATIONAL ORGANIZATIONS IMMUNITIES ACT, TO IMMUNITY FROM A TRIAL BY JURY IN
ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OTHER
AGREEMENT TO WHICH THE BORROWER IS A PARTY, BROUGHT AGAINST IDB IN ANY COURT OF
THE UNITED STATES OF AMERICA. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, EACH
OF THE BORROWER AND, BY ITS ACCEPTANCE HEREOF, IDB HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY FINANCING DOCUMENT TO WHICH SUCH PERSON IS A PARTY AND
FOR ANY COUNTERCLAIM THEREIN IN ANY FORUM IN WHICH IDB IS NOT ENTITLED TO
IMMUNITY FROM A TRIAL BY JURY.
10.10 No Immunity. To the extent that the Borrower may be or
become entitled, in any jurisdiction in which judicial proceedings may at any
time be commenced with respect to this Agreement, the Notes or any other
Financing Document, to claim for itself or its Properties or revenues any
immunity from suit, court jurisdiction, attachment prior to judgment, attachment
in aid of execution of a judgment, execution of a judgment or from any other
legal process or remedy relating to its obligations under this Agreement, the
Notes or any other Financing Document, and to the extent that in any such
jurisdiction there may be attributed such an immunity (whether or not claimed),
the Borrower hereby irrevocably agrees not to claim and hereby irrevocably
waives such immunity to the fullest extent permitted by the laws of such
jurisdiction. The Borrower agrees that the waivers set forth above shall have
the fullest extent
IDB Loan Agreement
- 19 -
permitted under the Foreign Sovereign Immunities Act of 1976 of the United
States of America and are intended to be irrevocable and not subject to
withdrawal for purposes of such Act.
10.11 Judgment Currency. The provisions of Section 10.11 of
the Common Agreement shall apply mutatis mutandis to this Agreement and the Loan
made hereunder.
10.12 Use of English Language. This Agreement has been
negotiated and executed in the English language. Except for the originals of the
Notes, all certificates, reports, notices and other documents and communications
given or delivered pursuant to this Agreement (including, without limitation,
any modifications or supplements hereto) shall be in the English language, or
accompanied by a certified English translation thereof. Except in the case of
laws or official communications of Chile, in the case of any document originally
issued in a language other than English, the English language version of any
such document shall for purposes of this Agreement, and absent manifest error,
control the meaning of the matters set forth therein.
10.13 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
10.14 Severability. If any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby. If any provisions of this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
such provision shall not in any way be affected or impaired in any other
jurisdiction thereby.
10.15 Confidential Information.
(a) Each of the parties hereto agrees that all Confidential
Information supplied to it by the other party under this Agreement and the
Transaction Documents shall be maintained in confidence and that it shall not
disclose, without the consent of such other party (and except as expressly
provided pursuant to this Section 10.15), any such Confidential Information to
any other Person, and shall treat the information with the same degree of care
against disclosure or unauthorized use which it affords confidential information
of other third parties. For purposes hereof, "Confidential Information" means
information delivered by or on behalf of the supplying party in connection with
the transactions contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that was clearly marked or labeled or otherwise
adequately identified when received by the receiving party as being confidential
information of the supplying party; provided, however, that such term does not
include information that (i) was publicly known or otherwise known to the
receiving party prior to the time of such disclosure, (ii) subsequently becomes
publicly known through no act or omission by the receiving party or any person
acting on its behalf, (iii) otherwise becomes known to the receiving party other
than through disclosure by the supplying party or (iv) constitutes financial
statements delivered to the receiving party under Section 6 or Section 8 of the
Common Agreement that are otherwise publicly available.
IDB Loan Agreement
- 20 -
(b) Notwithstanding the foregoing. IDB may:
(i) disclose to any present or prospective agent, assignee or
Participant who has agreed in writing to be bound by provisions
substantially in the form contained in this Section 10.15;
(ii) disclose to its directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it
being understood that the Persons to whom such disclosure is made will
be informed of the confidential nature of such Confidential Information
and instructed to keep such Confidential Information confidential); and
(iii) disclose to any Person for the purpose of exercising any
power, remedy, right, authority, or discretion under this Agreement or
any other Transaction Document in connection with a Default or an Event
of Default;
any documents or records of, or Confidential Information about, any such
agreement (including this Agreement), or the assets, business or affairs of the
Borrower.
(c) The Borrower acknowledges and agrees that, notwithstanding
the terms of any other agreement between the Borrower and IDB, a disclosure of
information by IDB in the circumstances contemplated by this Section 10.15 does
not violate any duty owed to the Borrower or agreement between IDB and the
Borrower.
10.16 Set-Off. In addition to any rights and remedies of IDB
provided by law, IDB shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder or under the Notes (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured. at any time held or owing by IDB or any branch or agency thereof to
or for the credit or the account of the Borrower. IDB agrees promptly to notify
the Borrower after any such set-off and application made by IDB, provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
10.17 Indemnity. The Borrower agrees to indemnify IDB and the
Participants and to hold IDB and the Participants harmless from any and all
claims, actions, liabilities, losses, damages, costs or expenses (whether direct
or indirect, by contract, in tort, by operation of law or otherwise) incurred by
or asserted or awarded against IDB or any Participant arising out of or in
connection with or relating to any investigation, litigation or proceeding or
the preparation of any defense with respect thereto, arising out of or in
connection with or relating to this Agreement or any of the Transaction
Documents or transactions contemplated hereby and thereby or any use made or
proposed to be made with the proceeds of the Loan, whether or not such
investigation, litigation or proceeding is brought by the Borrower, any of its
Affiliates, the SRT or creditors, IDB or any other Person, or IDB is otherwise a
party thereto and whether or not the transactions contemplated thereby are
consummated.
IDB Loan Agreement
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
COMUNICACION Y TELEFONIA
RURAL S.A
By: /s/ D'Arcy X. Xxxxx
---------------------------
Name: D'Arcy X. Xxxxx
Title: Director
IDB Loan Agreement
INTER-AMERICAN DEVELOPMENT
BANK
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Deputy Manager, Private Sector
Department
IDE Loan Agreement
