Exhibit 10.8
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INVESTMENT NUMBER 10296
ESCROW ACCOUNT AGREEMENT
AMONG
PRICESMART INC.
AND
INTERNATIONAL FINANCE CORPORATION
AND
THE BANK OF NEW YORK
DATED AS OF JANUARY 26, 2001
ACCOUNT NUMBER: GLA/111-565
SUB ACCOUNT: 293615
SHORT TITLE OF ACCOUNT: PRICESMART/IFC CORPORATE ESCROW
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ESCROW ACCOUNT AGREEMENT
ESCROW ACCOUNT AGREEMENT made as of the 26th day of January, 2001 by and
between THE BANK OF NEW YORK (as agent for IFC and as secured party hereunder,
the "Escrow Agent" and, as securities intermediary hereunder or in any other
capacity, the "Securities Intermediary"), PRICESMART INC. ("PriceSmart"), and
INTERNATIONAL FINANCE CORPORATION ("IFC").
WHEREAS:
(A) By a Loan Agreement dated as of January 26, 2001 (hereinafter called
the "IFC Loan Agreement") by and among the PriceSmart, PSMT Trinidad/Tobago
Limited, PSMT Caribe Inc. (collectively, the "Co-Borrowers") and IFC, IFC has
agreed, subject to the terms and conditions therein set forth to lend to the
Co-Borrowers jointly and severally the amount of twenty-two million Dollars
($22,000,000) (hereinafter called the "A Loan");
(B) By a C Loan Agreement, dated as of January 26, 2001, by and among the
Co-Borrowers and IFC (the "C Loan Agreement" and together with the IFC Loan
Agreement, the "Loan Agreements"), IFC has agreed, subject to the terms and
conditions therein set forth, to lend to the Co-Borrowers jointly and severally
the amount of ten million Dollars ($10,000,000) (hereinafter called the "C Loan"
and, together with the A Loan, the "Loans");
(C) The Escrow Agent has received a conformed copy of the Loan
Agreements; and
(D) As an inducement for IFC to make the Loans to the Co-Borrowers,
PriceSmart has agreed to establish an escrow account with the Escrow Agent, to
be funded and administered in accordance with the terms hereof, and to assign,
pledge and grant a security interest in such account to IFC, as provided herein.
NOW THEREFORE, IFC, PriceSmart and the Escrow Agent hereby agree that, in
consideration of the mutual promises and covenants contained herein, the Escrow
Agent shall hold in escrow and shall distribute Escrow Property (as defined
herein) in accordance with and subject to the following Instructions, Security
Interests and Terms and Conditions:
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I. INSTRUCTIONS:
1. ESCROW PROPERTY
(a) ESTABLISHMENT OF ESCROW ACCOUNT.
(i) PriceSmart has established with the Securities Intermediary at the
Securities Intermediary's office at 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx
Xxxx 00000, a special segregated account numbered GLA/111-565, Sub Account
No.293615 (the "Escrow Account"). The Escrow Account shall at all times remain
an account at the Securities Intermediaries' office in New York, New York.
(ii) The Escrow Account is in the name and under the control of the
Escrow Agent. All right, title and interest in and to the Escrow Account, the
cash amounts on deposit from time to time in the Escrow Account, and any
investments from time to time held in the Escrow Account shall vest in and be
under the control of the Escrow Agent and shall be disbursed to PriceSmart only
in accordance with this Agreement.
(iii) The Escrow Agent hereby confirms that the Escrow Account has been
established and agrees to operate the Escrow Account and make distributions from
the Escrow Account only in accordance with the provisions of this Agreement.
(b) MINIMUM AMOUNT. (i) PriceSmart agrees to maintain a balance of funds
in the Escrow Account at all times equal to or greater than the Minimum Amount
(as defined below), until such time as IFC deliver to the Escrow Agent the
notice contemplated by paragraph III.18(a).
(ii) The minimum dollar amount which PriceSmart must maintain in the
Escrow Account at any time (the "Minimum Amount") shall be the lesser of (A) the
amount equal to (1) two hundred thirty-four thousand three hundred seventy-five
Dollars ($234,375) multiplied by (2) the amount that has been disbursed plus any
amount that has been requested to be disbursed under the Loan Agreements, as
computed and notified by IFC to the Escrow Agent from time to time, divided by
one million Dollars ($1,000,000) or (B) seven million five hundred thousand
Dollars ($7,500,000). Upon receipt by the Escrow Agent of each such notice from
IFC, the Minimum Amount shall be adjusted in accordance with the aggregate
amount set forth in such notice, and the new Minimum Amount shall remain in
effect until the Escrow Agent receives a further such notice from IFC. The
Escrow Agent shall promptly give notice of the new Minimum Amount to IFC and
PriceSmart. Except in the case of manifest error, any such notice of the Minimum
Amount shall be conclusive and binding upon all the parties to this Agreement
for the purposes of this Agreement.
(c) The foregoing property and/or funds, plus all interest, dividends and
other distributions and payments thereon (collectively the "Distributions")
received by the
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Escrow Agent, less any property and/or funds distributed or paid in accordance
with this Escrow Agreement, are collectively referred to herein as "Escrow
Property."
2. INVESTMENT OF ESCROW PROPERTY
(a) The Escrow Agent shall invest or reinvest the Escrow Property,
without distinction between principal and income, only in the following
permitted investments ("Permitted Investments") as instructed in writing as
provided in paragraphs (a), (b), (c) and (d) below:
(i) readily marketable direct obligations of the United States or readily
marketable obligations guaranteed by the United States or any agency thereof
that mature within one hundred eighty (180) days after the date of acquisition
thereof;
(ii) commercial paper, in registered form, that matures within one
hundred eighty (180) days after the date of acquisition rated at least A-1+ by
Standard & Poor's Corporation ("S&P") and P-1 by Xxxxx'x Investors Service, Inc.
("Moody's"), issued by corporations organized in the United States or any state
thereof, the outstanding long term senior unsubordinated indebtedness of which
is then rated at least AA by S&P and Aaa by Moody's;
(iii) time deposits that mature within one hundred eighty (180) days
after the date of acquisition thereof with, including Dollar-denominated
certificates of deposit issued by, the Securities Intermediary or any office
located in the United States of any bank or trust company organized under the
laws of the United States or any state thereof, which has capital, surplus and
undivided profits aggregating at least $1,000,000,000 and the outstanding long
term senior unsubordinated indebtedness of which is then rated at least AA by
S&P and at least Aaa by Moody's; and
(iv) shares in any money market mutual fund rated at least AAA by S&P or
Aaa by Moody's;
PROVIDED, that such investments are either:
(A) evidenced by negotiable instruments or certificated securities and
issued in the name of the Escrow Agent or indorsed to the Escrow Agent or in
blank and in each case delivered to, and held by, the Escrow Agent or any agent
thereof in the State of New York;
(B) in the form of entries in the records of the Federal Reserve Bank of
New York ("Government Securities") and credited to a securities account
maintained by the Securities Intermediary with the Federal Reserve Bank of New
York and as to which the Securities Intermediary shall have indicated by book
entry that such Government Securities have been credited to the Escrow Account;
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(C) "securities" within the meaning of Article 8 of the UCC (as defined
below) as to which the Depositary Trust Company ("DTC") shall have indicated by
book entry that such securities have been credited to an account with DTC of the
Securities Intermediary or any affiliate thereof and the Securities Intermediary
shall have indicated by book entry that such securities have been credited to
the Escrow Account ("DTC Securities"); or
(D) "uncertificated securities" within the meaning of Article 8 of the
UCC (1) constituting validly issued shares not previously issued in a money
market mutual fund ("Money Market Securities") and (2) as to which the
Securities Intermediary has been registered as the owner on the books of the
registrar and transfer agent of such money market mutual fund in its capacity as
registrar and transfer agent of such money market mutual fund and as to which
the Securities Intermediary shall have indicated by book entry that such Money
Market Securities have been credited to the Escrow Account.
(b) Unless IFC shall have given notice to the Escrow Agent that a
Security Default has occurred and is continuing, the Escrow Agent shall invest
and re-invest all funds in the Escrow Account in Permitted Investments as
instructed from time to time in writing by PriceSmart.
(c) If IFC shall have given notice to the Escrow Agent that a Security
Default has occurred, and until the Escrow Agent receives notice from IFC that
such Security Default no longer is continuing, the Escrow Agent shall invest and
re-invest all funds in the Escrow Account in Permitted Investments only as
instructed from time to time in a joint written notice from IFC.
(d) If the Escrow Agent does not receive the instructions referred to in
paragraphs (b) or (c) above from PriceSmart or IFC, as the case may be, by the
close of business on the day of deposit of any funds, or the maturity of any
investment, in the Escrow Account, the Escrow Agent shall invest and re-invest
such funds and investments in U.S. Treasury Bills maturing not later than thirty
(30) days after the acquisition thereof until such instructions are received
from PriceSmart or IFC, as the case may be.
(e) All earnings from investments of funds in the Escrow Account shall be
deposited into the Escrow Account.
(f) The Escrow Agent shall have no liability for any loss arising from or
related to any such investment other than in accordance with paragraph III.4.
3. DISTRIBUTION OF ESCROW PROPERTY. The Escrow Agent is directed to hold
and distribute the Escrow Property in the following manner:
(a) WITHDRAWALS. (i) Unless a Security Default has occurred and is
continuing, PriceSmart may withdraw funds and investments from the Escrow
Account, but only if and to the extent that the amount of the Escrow Property is
greater than seven million five hundred thousand Dollars ($7,500,000) as the
date of withdrawal.
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(ii) After the Escrow Agent has received notice from IFC that a Security
Default has occurred, and until the Escrow Agent receives notice from IFC that
such Security Default is no longer continuing, it shall not allow any
withdrawals from the Escrow Account without the prior written consent of IFC.
(b) DEFAULT. Without prejudice to the provisions of paragraph II.5, upon
the occurrence and during the continuation of any Security Default, IFC may give
notice to the Escrow Agent informing it of such Security Default and requiring
the Escrow Agent to pay all amounts in the Escrow Account to IFC, as notified by
IFC to the Escrow Agent, and thereupon the Escrow Agent shall pay such amounts
as so instructed. Amounts so distributed to IFC may be applied by IFC to
repayment of the Loans and payment of all other Secured Obligations (as defined
in paragraph II.5), in such manner as each of them may decide in its sole
discretion.
4. ADDRESSES
All notices, instructions and other communications contemplated hereunder
shall be sent in writing to the Escrow Agent, Corporate Trust Administration,
000 Xxxxxxx Xxxxxx, Global Structured Products, 00 Xxxx, Xxx Xxxx, Xxx Xxxx
00000, and to PriceSmart and IFC as follows:
For PriceSmart:
PriceSmart, Inc.
0000 Xxxxxx Xxxx.
Xxx Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
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For IFC:
International Finance Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxxx Xxxxxx of America
Attention: Director, Latin America and Caribbean Department
Facsimile: x0-000-000-0000
With a copy (in the case of notices relating to payments) to the
attention of the Senior Manager, Financial Operations Unit, at
Facsimile: x0-000-000-0000
5. DISTRIBUTION OF ESCROW PROPERTY UPON TERMINATION
Upon termination of this Escrow Agreement, the Escrow Property then held
hereunder shall be distributed to PriceSmart or the parties otherwise entitled
to it.
6. COMPENSATION
(a) PriceSmart shall pay the Escrow Agent an acceptance fee of six
thousand Dollars ($6,000.00) payable upon execution of this Agreement and
thereafter on each anniversary date of this Agreement.
(b) PriceSmart shall be responsible for and shall reimburse the Escrow
Agent upon demand for all expenses, disbursements and advances incurred or made
by the Escrow Agent in connection with this Agreement.
(c) The Escrow Agent shall look solely to PriceSmart for payment of its
fees and expenses hereunder.
II. SECURITY INTERESTS
1. SECURITY. PriceSmart hereby assigns and pledges to the Escrow Agent,
and grants to the Escrow Agent, for the benefit of IFC, as collateral security
for the Co-Borrowers' obligations under the Loan Agreements and this Agreement
(collectively, the "Secured Obligations"), a security interest in, all of its
right, title and interest in the following (the "Collateral"):
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(a) the Escrow Account;
(b) all moneys from time to time deposited in or paid into the Escrow
Account;
(c) all property and investments, including without limitation Permitted
Investments, from time to time held in or credited to the Escrow Account,
whether now owned or hereafter acquired, and all earnings thereon; and
(d) all proceeds thereof.
2. COVENANTS OF THE SECURITIES INTERMEDIARY; FINANCIAL ASSETS. (a) All
funds or other property acquired by or deposited with the Securities
Intermediary or the Escrow Agent hereunder will be credited by the Securities
Intermediary to the Escrow Account, and the Securities Intermediary will
indicate by book entry that such funds and property have been so credited. The
parties agree that all property credited to the Escrow Account will be treated
as financial assets under Article 8 of the UCC.
(b) The Securities Intermediary will comply with all notifications it
receives directing it to transfer or redeem any funds or other property in the
Escrow Account (each an "Entitlement Order") originated by the Escrow Agent
without further consent by PriceSmart.
(c) The Securities Intermediary will not agree with any third party that
the Securities Intermediary will comply with Entitlement Orders originated by
such third party.
(d) The Securities Intermediary will promptly notify IFC and the Escrow
Agent if any other person claims that it has a property interest in, or asserts
a lien or encumbrance against, the Escrow Account or any property in the Escrow
Account.
(e) The Securities Intermediary and the Escrow Agent shall not have, and
hereby waive, any right of the banker's lien, set-off or counterclaim in respect
of any of the funds or property in the Escrow Account, and the Securities
Intermediary subordinates in favor of the Escrow Agent any security interest or
other lien it may have, now or in the future, against the Escrow Account or any
property therein.
3. FURTHER ASSURANCES; POWER OF ATTORNEY. PriceSmart shall, at its cost
and expense, take all action and execute, deliver and file all financing
statements or other documents necessary to perfect or maintain the perfection of
the security interests granted in this Agreement or to enable the Escrow Agent
and IFC to obtain the full benefits of this Agreement or to exercise and enforce
any of their rights, powers and remedies hereunder with respect to any of the
Escrow Property. PriceSmart hereby grants to IFC and the Escrow Agent the right
to do all acts and things which either IFC or the Escrow Agent may deem
necessary or desirable to perfect and continue the perfection of the
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security interests provided by this Agreement, and PriceSmart hereby irrevocably
appoints each of IFC and the Escrow Agent as its attorney-in-fact to do, jointly
or separately, all acts and things necessary to accomplish the foregoing; it
being understood that the Escrow Agent shall execute any financing statements or
amendments thereto upon written instructions of IFC, but the Escrow Agent shall
have no obligation to file any such statement or amendment.
4. COVENANTS OF PRICESMART. (a) PriceSmart shall not assign, pledge or
create or permit to exist any lien, security interest, pledge, charge, privilege
or priority of any kind, in or to the Escrow Account or any funds or property at
any time held therein in favor of any person or entity other than IFC or the
Escrow Agent for the benefit of IFC.
(b) PriceSmart shall, at its expense, defend the Collateral against the
claims of all persons other than IFC and the Escrow Agent.
(c) PriceSmart shall pay any taxes of any kind now or hereafter levied
against the funds or property deposited or held in the Escrow Account and any
earnings thereon or any other Collateral, as and when the same shall become due,
and PriceSmart shall, promptly upon request, deliver to IFC and the Escrow Agent
evidence of such payments.
(d) PriceSmart shall, promptly upon request, provide to the Escrow Agent
and IFC all information and evidence they may request concerning the Collateral
to enable the Escrow Agent and IFC to enforce the provisions of this Agreement.
(e) PriceSmart shall keep full and accurate books and records relating to
the Collateral and stamp or otherwise xxxx such books and records in such manner
as IFC or the Escrow Agent may reasonably require to reflect the security
interests granted under this Agreement.
5. SECURITY DEFAULT. (a) The following events shall constitute a default
under this Agreement (a "Security Default"):
(i) an Event of Default under any of the Loan Agreements shall have
occurred and be continuing;
(ii) any representation or warranty made by PriceSmart herein shall prove
false in any material respect when made;
(iii) any failure by PriceSmart to perform or observe fully the terms of
this Agreement; or
(iv) any seizure, attachment or levy upon the Escrow Account or any of
the funds or investments therein shall have occurred.
(b) If a Security Default has occurred and is continuing, at the written
direction of IFC, the Escrow Agent may exercise on behalf of IFC all rights of a
secured party under the UCC (whether or not in effect in the jurisdiction where
such rights are
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exercised) and, in addition, the Escrow Agent may, upon written direction of
IFC, without being required to give any notice, except as herein provided or as
may be required by mandatory provisions of law, withdraw all cash and
investments in the Escrow Account and sell the Collateral or any part thereof at
such prices as it shall deem satisfactory, and apply such cash and investments
and the proceeds of such sale and other cash, if any, then held by it:
(i) FIRST, to the payment of the expenses of such sale or other
realization, and all expenses, liabilities and advances incurred or made by the
Escrow Agent in connection therewith;
(ii) SECOND, to the payment of all Secured Obligations owing to IFC under
the Loan Agreements that are due (by acceleration or otherwise) and unpaid, PRO
RATA in accordance with the amounts then due and payable to IFC under the IFC
Loan Agreement and the C Loan Agreement;
(iii) THIRD, to the payment of all other Secured Obligations, until all
Secured Obligations shall have been paid in full; and
(iv) FINALLY, to payment to PriceSmart or its successors or assigns, or
as a court of competent jurisdiction may direct, of any surplus then remaining.
6. UCC TERMS. Wherever used in this Agreement, unless otherwise defined
herein or unless the context otherwise requires, terms defined in the Uniform
Commercial Code as in effect from time to time in the State of New York (the
"UCC") shall have the same meanings when used in this Agreement.
III. TERMS AND CONDITIONS:
1. The duties, responsibilities and obligations of the Escrow Agent shall
be limited to those expressly set forth herein and no duties, responsibilities
or obligations shall be inferred or implied. The Escrow Agent shall not be
subject to, nor required to comply with, any other agreement between PriceSmart
and IFC or to which any of them is a party, even though reference thereto may be
made herein, or to comply with any direction or instruction (other than those
contained herein or delivered in accordance with this Escrow Agreement) from any
of PriceSmart or IFC or any entity acting on any of their behalf. The Escrow
Agent shall not be required to, and shall not, expend or risk any of its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder.
2. This Agreement is for the exclusive benefit of the parties hereto and
their respective successors hereunder, and shall not be deemed to give, either
express or implied, any legal or equitable right, remedy or claim to any other
entity or person whatsoever.
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3. If at any time the Escrow Agent is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects the Escrow Property (including
but not limited to orders of attachment or garnishment or other forms of levies
or injunctions or stays relating to the transfer of the Escrow Property), the
Escrow Agent is authorized to comply therewith in any manner as it or its legal
counsel reasonably chosen by it deems appropriate; and if the Escrow Agent
complies with any such judicial or administrative order, judgment, decree, writ
or other form of judicial or administrative process, the Escrow Agent shall not
be liable to any of the parties hereto or to any other person or entity even
though such order, judgment, decree, writ or process may be subsequently
modified or vacated or otherwise determined to have been without legal form or
effect.
4. (a) The Escrow Agent shall not be liable for any action taken or
omitted or for any loss or injury resulting from its actions or its performance
or lack of performance of its duties hereunder in the absence of gross
negligence or willful misconduct on its part. In no event shall the Escrow Agent
be liable (i) for acting in accordance with or relying upon any instruction,
notice, demand, certificate or document from PriceSmart or IFC which such party
is entitled to deliver hereunder, (ii) for any consequential, punitive or
special damages, or (iii) for the acts or omissions of its nominees,
correspondents, designees, subagents or subcustodians appointed with due care.
(b) As security for the due and punctual performance of any and all of
PriceSmart's obligations to the Escrow Agent hereunder, now or hereafter
arising, PriceSmart hereby pledges, assigns and grants to the Escrow Agent a
continuing second priority security interest in, and a second priority lien on,
the Escrow Property and all Distributions thereon or additions thereto (whether
such additions are the result of deposits by PriceSmart or the investment of
Escrow Property). The security interest of the Escrow Agent shall at all times
be valid, perfected and enforceable by the Escrow Agent against PriceSmart and
all third parties in accordance with the terms of this Escrow Agreement;
PROVIDED, that, notwithstanding any other provision of this Agreement, such
pledge, assignment and security interest (i) shall at all times be second in
priority to the security interest granted to the Escrow Agent for the benefit of
IFC hereunder and subordinate to the rights to IFC hereunder and (ii) shall not
be enforced if enforcement thereof would cause the balance of the Escrow
Property in the Escrow Account to be less than the Minimum Amount or at any time
that a Security Default shall have occurred and be continuing.
(c) The Escrow Agent may consult with legal counsel at the reasonable
expense of PriceSmart as to any matter relating to this Escrow Agreement, and
the Escrow Agent shall not incur any liability in acting in good faith in
accordance with any advice from such counsel.
(d) The Escrow Agent shall not incur any liability for not performing any
act or fulfilling any duty, obligation or responsibility hereunder by reason of
any occurrence beyond the control of the Escrow Agent (including but not limited
to any act or provision
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of any present or future law or regulation or governmental authority, any act of
God or war, or the unavailability of the Federal Reserve Bank wire or telex or
other wire or communication facility).
5. Unless otherwise specifically set forth herein, the Escrow Agent shall
proceed as soon as practicable to collect any checks or other collection items
at any time deposited hereunder. All such collections shall be subject to the
Escrow Agent's usual collection practices or terms regarding items received by
the Escrow Agent for deposit or collection. The Escrow Agent shall not be
required, or have any duty, to notify anyone of any payment or maturity under
the terms of any instrument deposited hereunder except as specifically provided
in paragraph III.6 below, nor to take any legal action to enforce payment of any
check, note or security deposited hereunder or to exercise any right or
privilege which may be afforded to the holder of any such security.
6. (a) Not later than ten (10) days following the end of each calendar
month, and from time to time upon request, the Escrow Agent shall provide to IFC
and PriceSmart:
(i) a statement of the amounts on deposit and the Permitted Investments
held in the Escrow Account as of the end of the most recent calendar month;
(ii) a statement of the current Minimum Amount;
(iii) a statement of all transfers into and withdrawals from the Escrow
Account during such month; and
(iv) a statement of purchases and sales of Permitted Investments, and the
receipt, application or existence of any income, dividends or capital gains with
respect thereto, during such month.
(b) The value of each Permitted Investment shall be determined as
follows:
(i) if such Permitted Investment is of the type defined in clause (i) of
the definition of Permitted Investments, it shall be valued at the average of
the closing bid and asked prices for the Business Day immediately prior to such
valuation as set forth in THE WALL STREET JOURNAL (or if unavailable in THE WALL
STREET JOURNAL for whatever reason, as set forth in any other recognized
financial publication selected by the Escrow Agent in its discretion);
(ii) if such Permitted Investment is of the type defined in clause (ii)
of the definition of Permitted Investments, it shall be valued at cost plus
accrued discount or accrued interest, as the case may be, through and including
the date of such valuation; and
(iii) if such Permitted Investment is of the type defined in clause (iii)
or (iv) of the definition of Permitted Investments, it shall be valued at cost.
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7. The Escrow Agent shall not be responsible in any respect for the form,
execution, validity, value or genuineness of documents or securities deposited
hereunder, or for any description herein, or for the identity, authority or
rights of persons executing or delivering or purporting to execute or deliver
any such document, security or endorsement.
8. Notices, instructions or other communications shall be in writing and
shall be given to the address set forth in the "Addresses" provision herein (or
to such other address as may be substituted therefor by written notification to
the Escrow Agent, PriceSmart or IFC). Notices to the Escrow Agent shall be
deemed to be given when actually received by the Escrow Agent's Corporate Trust
Department. The Escrow Agent is authorized to comply with and rely upon any
notices, instructions or other communications believed by it to have been sent
or given by PriceSmart or IFC or by a person or persons authorized by PriceSmart
or IFC. Whenever under the terms hereof the time for giving a notice or
performing an act falls upon a Saturday, Sunday or banking holiday, such time
shall be extended to the next day on which the Escrow Agent is open for
business.
9. PriceSmart shall be liable for and shall reimburse and indemnify the
Escrow Agent and hold the Escrow Agent harmless from and against any and all
claims, losses, liabilities, costs, damages or expenses (including reasonable
attorneys' fees and expenses) (collectively, "Losses") arising from or in
connection with or related to this Escrow Agreement or being the Escrow Agent
hereunder (including but not limited to Losses incurred by the Escrow Agent in
connection with its successful defense, in whole or in part, of any claim of
gross negligence or willful misconduct on its part); PROVIDED, however, that
nothing contained herein shall require the Escrow Agent to be indemnified for
Losses caused by its gross negligence or willful misconduct.
10. (a) IFC may remove the Escrow Agent or the Securities Intermediary at
any time by giving to the Escrow Agent thirty (30) calendar days' prior notice
in writing signed by IFC. The Escrow Agent or Securities Intermediary may resign
at any time by giving to PriceSmart and IFC thirty (30) calendar days' prior
written notice thereof. Such removal or resignation shall be effective from the
date specified in the relevant notice; PROVIDED, that such removal or
resignation, as the case may be, shall not become effective until a Successor
Escrow Agent or Successor Securities Intermediary (each as defined below) shall
have succeeded to the rights and obligations of the Escrow Agent or Securities
Intermediary, as the case may be, hereunder pursuant to subsection (b) below
and, in the case of the resignation or removal of the Securities Intermediary, a
new special segregated escrow account (a "Successor Escrow Account"),
satisfactory to IFC, shall have been established with the Successor Securities
Intermediary and the funds and investments in the Escrow Account shall have been
transferred to the Successor Escrow Account.
(b) If the position of the Escrow Agent or the Securities Intermediary
shall become vacant for any reason, IFC shall have the right to appoint, upon
consultation with
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PriceSmart, a successor to its rights and duties hereunder (a "Successor
Escrow Agent" or a "Successor Securities Intermediary," as the case may be),
which shall be a commercial bank or trust company, located in New York, New
York, organized or licensed under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
$100,000,000. If no Successor Escrow Agent or Successor Escrow Intermediary
shall have been so appointed by IFC, and shall have accepted such
appointment, within one hundred twenty (120) days after the resigning Escrow
Agent or Securities Intermediary gives notice of resignation, then the
resigning Escrow Agent or Securities Intermediary may, on behalf of IFC,
appoint a Successor Escrow Agent or Successor Securities Intermediary that
complies with the criteria set forth in the preceding sentence. Upon the
acceptance by the Successor Escrow Agent or Successor Securities Intermediary
of its appointment hereunder, such Successor Escrow Agent or Successor
Securities Intermediary shall thereupon succeed to, become vested with and
assume all the rights, duties and obligations of the retiring Escrow Agent or
Securities Intermediary, whether arising before or after the acceptance by
the Successor Escrow Agent or Successor Securities Intermediary of such
appointment, and all references herein to the Escrow Agent, Securities
Intermediary or Escrow Account, as the case may be, shall thereafter apply to
the Successor Escrow Agent, Successor Securities Intermediary, or Successor
Escrow Account, and the retiring Escrow Agent or Securities Intermediary
shall be discharged from its duties and obligations hereunder.
11. In the event of any ambiguity or uncertainty hereunder or in any
notice, instruction or other communication received by the Escrow Agent
hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any
action other than retain possession of the Escrow Property, unless the Escrow
Agent receives written instructions, signed by IFC, which eliminates such
ambiguity or uncertainty.
12. (a) This Agreement shall be governed by and interpreted, construed,
enforced and administered in accordance with the laws of the State of New York.
PriceSmart hereby submits to the personal jurisdiction of, and agrees that all
proceedings relating hereto shall be brought in, courts located within the City
and State of New York or elsewhere as the Escrow Agent may select. PriceSmart
hereby waives the right to trial by jury and to assert counterclaims in any such
proceedings. To the extent that in any jurisdiction PriceSmart may be entitled
to claim, for itself or its assets, immunity from suit, execution, attachment
(whether before or after judgment) or other legal process, PriceSmart hereby
irrevocably agrees not to claim, and hereby waives, such immunity. PriceSmart
waives personal service of process and consents to service of process by
certified or registered mail, return receipt requested, directed to it at the
address last specified for notices hereunder, and such service shall be deemed
completed ten (10) calendar days after the same is so mailed.
(b) PriceSmart hereby irrevocably designates, appoints and empowers CT
Corporation System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Xxxxxx Xxxxxx of America, as its authorized agent to receive for and on its
behalf service of summons or other legal process in any action or proceeding in
New York, New York, United States of America. PriceSmart agrees that the failure
of such agent to give notice
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to PriceSmart of any such service shall not impair or affect the validity of
such service or of any judgment rendered in any action or proceeding based
thereon. PriceSmart further waives personal service of process by certified or
registered airmail, postage prepaid, directed to it at the address last
specified for notices hereunder, and such service shall be deemed completed ten
(10) calendar days after the same is so mailed.
13. Except as otherwise permitted herein, this Escrow Agreement may be
modified only by a written amendment signed by all the parties hereto, and no
waiver of any provision hereof shall be effective unless expressed in a writing
signed by the party to be charged.
14. The rights and remedies conferred upon the parties hereto shall be
cumulative, and the exercise or waiver of any such right or remedy shall not
preclude or inhibit the exercise of any additional rights or remedies. The
waiver of any right or remedy hereunder shall not preclude the subsequent
exercise of such right or remedy.
15. (a) IFC hereby represents and warrants (i) that this Escrow Agreement
has been duly authorized, executed and delivered on its behalf and constitutes
its legal, valid and binding obligation and (ii) that the execution, delivery
and performance of this Escrow Agreement by it do not and will not violate any
applicable law or regulation.
(b) PriceSmart represents and warrants to IFC and the Escrow Agent as
follows:
(i) PriceSmart is a corporation duly organized and validly existing under
the laws of the State of Delaware and has the requisite corporate power to enter
into this Agreement and to perform its obligations hereunder.
(ii) The execution and delivery by PriceSmart of this Agreement and the
performance by PriceSmart of its obligations hereunder have been duly authorized
by all necessary corporate action, will not violate any provision of its
organizational documents or any agreement to which it is a party or by which it
is bound, and this Agreement is the legal, valid and binding obligation of
PriceSmart, enforceable against PriceSmart in accordance with its terms.
(iii) PriceSmart has the right to assign, pledge and grant a first
priority security interest in the Collateral to the Escrow Agent for the benefit
of IFC.
(iv) PriceSmart has rights in, and good and marketable title to, all of
the existing Collateral, free and clear of any liens or encumbrances other than
the security interests granted in this Agreement and as otherwise permitted
under the Loan Agreements.
(v) Price Smart has not performed any acts which might prevent IFC or the
Escrow Agent from enforcing any of the terms of this Agreement or which will
limit IFC or the Escrow Agent in any such enforcement.
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(vi) This Agreement creates a valid security interest in the Collateral
as security for the Secured Obligations; PROVIDED, that with respect to any item
of Collateral in which PriceSmart has no present rights, such security interest
will be created when PriceSmart acquires such rights.
(vii) No action, including, but not limited to, any recording, filing,
registration, giving of notice or other similar action, other than the execution
and delivery of this Agreement is necessary to perfect the rights of the Escrow
Agent for the benefit of IFC in and to the Collateral, except that a security
interest in the Collateral consisting of Permitted Investments may be perfected
only when:
(A) in the case of Permitted Investments evidenced by instruments or
certificated securities, the Escrow Agent takes possession of the instruments or
certificated securities, and the instruments or certificated securities are
indorsed to the Escrow Agent or in blank;
(B) in the case of Government Securities, when the Federal Reserve Bank
of New York makes an appropriate entry in its records crediting such Government
Securities to an account of the Securities Intermediary, and the Securities
Intermediary indicates by book entry that such Government Securities have been
credited to the Escrow Account;
(C) in the case of DTC Securities, when DTC indicates by book entry that
such DTC Securities have been credited to an account with DTC of the Securities
Intermediary, and the Securities Intermediary indicates by book entry that such
DTC Securities have been credited to the Escrow Account; or
(D) in the case of Money Market Securities, the Escrow Agent has been
registered as the owner thereof or when the Securities Intermediary has been
registered as the owner thereof and the Securities Intermediary has indicated by
book entry that such Money Market Securities have been credited to the Escrow
Account.
(viii) The rights of the Escrow Agent for the benefit of IFC in the
Collateral are and will remain prior to the rights of all other persons other
than as permitted under the Loan Agreements.
(ix) Under applicable law, each payment or distribution of funds or
investments in the Escrow Account required to be made by the Escrow Agent
hereunder may be made by the Escrow Agent free and clear of, and without
deduction or withholding for or on account of, taxes.
(c) The Securities Intermediary and the Escrow Agent represent and
warrant to IFC as follows:
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(i) The Escrow Account is a "securities account" within the meaning of
Section 8-501(a) of the UCC, established and maintained pursuant to an agreement
that is stated to be governed by the law of the State of New York, with respect
to which the Escrow Agent is the "entitlement holder" within the meaning of
Section 8-102(a)(7) of the UCC.
(ii) The Securities Intermediary is a "securities intermediary" within
the meaning of Section 8-102(a)(14) of the UCC.
(iii) The responsible officers within the Corporate Trust Administration
have not received notice of any lien, encumbrance or other claim to the
Collateral, except for those created under this Agreement.
(iv) The Securities Intermediary has not agreed to comply with
entitlement orders originated by any party other than IFC or the Escrow Agent.
16. The invalidity, illegality or unenforceability of any provision of
this Agreement shall in no way affect the validity, legality or enforceability
of any other provision; and if any provision is held to be enforceable as a
matter of law, the other provisions shall not be affected thereby and shall
remain in full force and effect.
17. This Agreement shall constitute the entire agreement of the parties
with respect to the subject matter and supersedes all prior oral or written
agreements in regard thereto.
18. (a) Upon the earlier of the indefeasible payment in full of all
Secured Obligations or the Project Financial Completion Date (as defined in the
IFC Loan Agreement), IFC shall so notify the Escrow Agent and PriceSmart and,
upon receipt by PriceSmart and the Escrow Agent of such notices, the security
interests granted hereunder in Part II to the Escrow Agent for the benefit of
IFC shall terminate and all rights to the Collateral granted thereby shall
revert to PriceSmart. Upon any such termination of such security interests or
release of Collateral to PriceSmart in accordance with the provisions of this
Agreement, the Escrow Agent will, at the expense of PriceSmart, execute and
deliver to PriceSmart such documents as PriceSmart shall reasonably request and
provide to it to evidence the termination of the security interests or the
release of such Collateral, as the case may be.
(b) Upon any termination pursuant to paragraph (a) above of the security
interests granted to the Escrow Agent for the benefit of IFC, the Escrow Agent
shall distribute any remaining Escrow Property in accordance with Paragraph I.5
hereof. This Agreement shall terminate upon the distribution of all Escrow
Property from the Escrow Account.
19. No printed or other material in any language, including prospectuses,
notices, reports, and promotional material which mentions "The Bank of New York"
by name or the rights, powers or duties of the Escrow Agent under this Agreement
shall be
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issued by any other parties hereto, or on such party's behalf, without the prior
written consent of the Escrow Agent.
20. The headings contained in this Agreement are for convenience of
reference only and shall have no effect on the interpretation or operation
hereof.
21. This Escrow Agreement may be executed by each of the parties hereto
in any number of counterparts, each of which counterpart, when so executed and
delivered, shall be deemed to be an original and all such counterparts shall
together constitute one and the same agreement.
22. The Escrow Agent does not have any interest in the Escrow Property
deposited hereunder other than or expressly set forth herein. PriceSmart shall
pay or reimburse the Escrow Agent upon request for any transfer taxes or other
taxes relating to the Escrow Property incurred in connection herewith and shall
indemnify and hold harmless the Escrow Agent any amounts that it is obligated to
pay in the way of such taxes. Any payments of income from this Escrow Account
shall be subject to withholding regulations then in force with respect to United
States taxes. PriceSmart will provide the Escrow Agent upon request with
appropriate W-9 forms for tax I.D., number certifications, or W-8 forms for
non-resident alien certifications. It is understood that the Escrow Agent shall
be responsible for income reporting only with respect to income earned on
investment of funds which are a part of the Escrow Property and is not
responsible for any other reporting.
23. The provisions of paragraphs I.3, III.9 and III.22 shall survive the
termination of this Escrow Agreement or the registration or removal of the
Escrow Agent.
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IN WITNESS WHEREOF, each of the parties have caused this Escrow Agreement
to be executed by a duly authorized officer as of the day and year first written
above.
PRICESMART, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
INTERNATIONAL FINANCE CORPORATION
By: /s/ Xxxx Xxxxx Xxxxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxx Xxxxxxxxxxx
Title: Manager
Latin America & Caribbean Department
THE BANK OF NEW YORK,
as Escrow Agent and Securities Intermediary
By: /s/ Xxx Xxxxxxx
---------------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Treasurer
