Exhibit 10.7
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INVESTMENT NUMBER 10296
C LOAN AGREEMENT
AMONG
PRICESMART INC.,
PSMT CARIBE, INC.,
PSMT TRINIDAD/TOBAGO LIMITED,
AND
INTERNATIONAL FINANCE CORPORATION
DATED AS OF JANUARY 26, 2001
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TABLE OF CONTENTS
ARTICLE OR
SECTION ITEM PAGE NO.
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ARTICLE I......................................................................2
DEFINITIONS....................................................................2
Section 1.01. DEFINITIONS.................................................2
Section 1.02. INTERPRETATION..............................................3
ARTICLE II.....................................................................3
AGREEMENT FOR THE C LOAN.......................................................3
Section 2.01. AMOUNT......................................................3
Section 2.02. INTEREST....................................................3
Section 2.03. ADDITIONAL C LOAN INTEREST..................................3
Section 2.04. CAP ON INTEREST.............................................4
Section 2.05. FEES........................................................4
Section 2.06. DISBURSEMENT................................................4
Section 2.07. REPAYMENT...................................................5
Section 2.08. PREPAYMENT..................................................5
Section 2.09. LATE PAYMENT CHARGE.........................................6
Section 2.10. GENERAL.....................................................6
ARTICLE III....................................................................7
MISCELLANEOUS..................................................................7
Section 3.01. DURATION....................................................7
Section 3.02. COUNTERPARTS................................................7
SCHEDULE 1.....................................................................9
FORM OF C LOAN DISBURSEMENT REQUEST........................................9
SCHEDULE 2....................................................................13
FORM OF C LOAN DISBURSEMENT RECEIPT.......................................13
C LOAN AGREEMENT
AGREEMENT, dated as of January 26, 2001, among:
(1) PRICESMART INC., a company organized and existing under the laws of
the State of Delaware, U.S.A. ("PriceSmart");
(2) PSMT CARIBE, INC., a company organized and existing under the laws
of the Territory of the British Virgin Islands ("Caribe");
(3) PSMT TRINIDAD/TOBAGO LIMITED, a company organized and existing under
the laws of the Republic of Trinidad and Tobago ("PSMT Trinidad and
PriceSmart, Caribe and PSMT Trinidad are collectively referred to
herein as the "Co-Borrowers"); and
(4) INTERNATIONAL FINANCE CORPORATION, an international organization
established by Articles of Agreement among its member countries
("IFC").
WHEREAS:
(A) By a Loan Agreement of even date herewith among the Co-Borrowers and
IFC (the "Loan Agreement"), IFC has agreed, subject to the terms and conditions
thereof, to lend to the Co-Borrowers the sum of up to twenty-two million Dollars
($22,000,000) (the "A Loan").
(B) The Financial Plan set forth in the Loan Agreement also provides for
the provision by IFC to the Co-Borrowers of a C Loan of ten million Dollars
($10,000,000) (the "C Loan").
(C) Pursuant to Section 5.01 of the Loan Agreement, it is a condition
precedent to the first disbursement of the A Loan that this Agreement shall have
been entered into, shall have become effective and the C Loan shall have been
fully disbursed.
(D) In order to induce IFC to make disbursements under the Loan
Agreement, and in consideration thereof, the Co-Borrowers have agreed to
undertake the obligations herein contained.
NOW THEREFORE, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. Wherever used in this Agreement, unless the
context shall otherwise require, terms defined in the Loan Agreement shall have
the respective meanings therein set forth, and the following terms shall have
the following meanings:
"Additional Interest
Payment Date" March 15 in each year, starting with March 15, 2003 or, in
the case of any Additional Interest Period of less than
six (6) months, any day which is the 15th day of the month
in which the relevant Additional Interest Period ends;
provided, that if such date is not a Business Day, then
the relevant Additional Interest Payment Date shall be on
the immediately succeeding Business Day;
"Additional
Interest Period" means, for each Additional Interest Payment Date,
the immediately preceding completed Financial Year, the
first such period beginning on the Financial Year starting
on September 1, 2001;
"Additional
C Loan Interest" means the additional interest payable on the C Loan, in
addition to the C Loan Interest, at the rate determined in
accordance with the terms of Section 2.03;
"Agreement" means this C Loan Agreement;
"C Loan Interest" means the interest payable on the C Loan at the C Loan
Interest Rate;
"C Loan Interest
Rate" means the interest rate determined in accordance with
the terms of Section 2.02; and
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"EBITDA" the Consolidated earnings of the Co-Borrowers and their
respective Subsidiaries before interest, taxes,
depreciation and amortization calculated in accordance
with Accounting Principles.
Section 1.02. INTERPRETATION. (a) In this Agreement, unless the context
otherwise requires, words denoting the singular include the plural and vice
versa, words denoting persons include corporations and partnerships, and
references to a specified Article or Section shall be construed as a reference
to that specified Article or Section of this Agreement.
(b) In each part of this Agreement, the headings and the Index are
inserted for convenience of reference only and shall not be used to define,
interpret or limit any of the provisions of this Agreement.
ARTICLE II
AGREEMENT FOR THE C LOAN
Section 2.01. AMOUNT. Subject to the terms and conditions of this
Agreement, IFC agrees to lend to the Co-Borrowers and the Co-Borrowers agree
jointly and severally to borrow from IFC the C Loan, that is, the amount of up
to ten million Dollars ($10,000,000).
SECTION 2.02. INTEREST. (a) The C Loan shall accrue interest (the "C Loan
Interest") in respect of each Interest Period at a rate per annum which shall be
the sum of two per cent (2.0%) per annum and LIBOR, on the Interest
Determination Date for such Interest Period for six months (or, in the case of
the first Interest Period, for one month, two months, three months or six
months, whichever period is closest to the duration of the relevant Interest
Period or, if two periods are equally close to the duration of the relevant
Interest Period, the longer one) (the "C Loan Interest Rate").
(b) The C Loan Interest shall be determined on each Interest
Determination Date and shall be paid on each Interest Payment Date as provided
by the terms of the Loan Agreement, MUTATIS MUTANDIS.
Section 2.03. ADDITIONAL C LOAN INTEREST. (a) In addition to the C Loan
Interest, the Co-Borrowers shall also pay, in Dollars, on each Additional
Interest Payment Date, the Additional C Loan Interest which shall be equal to
two and
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one-half per cent (2.5%) times EBITDA (before opening expenses) for the
relevant Additional Interest Period, commencing on March 15, 2003.
(b) Such Additional Interest shall be calculated by IFC on the basis of
the Consolidated audited financial statements of the Co-Borrowers and their
respective Subsidiaries for the previous Financial Year.
Section 2.04. CAP ON INTEREST. Notwithstanding the provisions of Sections
2.02 and 2.03, the sum of the C Loan Interest and the Additional C Loan Interest
paid on the C Loan shall not exceed in respect of each year an amount computed
on the basis of the following interest rate percentages (with respect to the C
Loan):
YEAR CAP
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2003 11.5%
2004 14.0%
2005 16.5%
2006 19.0%
2007 &
thereafter 20.0%
Section 2.05. FEES. (a) The Co-Borrowers shall pay to IFC in Dollars a
front-end fee of one hundred thousand Dollars ($100,000) in respect of the C
Loan to be paid within thirty (30) days after the date of this Agreement (but,
in any event, prior to the disbursement of the C Loan);
(b) The Co-Borrowers shall also pay to IFC a commitment fee of one-half
of one per cent (1/2%) per annum on that part of the C Loan which from time to
time has not been disbursed or cancelled. The commitment fee shall:
(i) begin to accrue on the date of this Agreement;
(ii) be PRO RATED on the basis of a 360-day year for the actual
number of days elapsed; and
(iii) be payable semi-annually, in arrears, on the Interest Payment
Dates in each year, the first such payment to be due on March
15, 2001.
Section 2.06. DISBURSEMENT. (a) Subject to Section 5.01 (a)(i), (b), (c),
(d)(i) (other than with respect to the OPIC Loan) through (d)(v), (e), (f)
(other than legal opinions relating to the movable and immovable assets in
jurisdictions other
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than El Salvador and the Xxxxxxxxx Xxxxxxxx), (x), (x), (x), (x), (x), (x), (x)
and (o) of the Loan Agreement, the disbursement of the full amount of the C Loan
shall be made in one lump sum prior to or simultaneously with the first
disbursement of the A Loan, but in no event later than July 26, 2001, at
PriceSmart's bank account in New York, New York for further credit to the
Co-Borrowers' respective accounts at a bank in the Countries, or any other place
acceptable to IFC, or to the credit of the Co-Borrowers' existing creditors, all
as specified by the Co-Borrowers in the C Loan Disbursement request.
(b) Notwithstanding any provision in this Agreement, each of PSMT Caribe
and PSMT Trinidad irrevocably appoints and designates PriceSmart as its agent
for the purpose of receiving any notice or request and further authorizes
PriceSmart to make the request provided in Section 2.06(a) or any other request
permitted to be made by the Co-Borrowers under this Agreement, to receive all
disbursements to be made hereunder, to sign the receipts provided for in Section
2.06(a), and to take any other action required or permitted to be taken on its
behalf under this Agreement.
Section 2.07. REPAYMENT. The C Loan shall be repaid in full in one
installment on the later of (i) the date on which all amounts outstanding under
the A Loan are repaid in full and (ii) March 15, 2011.
Section 2.08. PREPAYMENT. (a) The C Loan may be prepaid on any Interest
Payment Date after March 15, 2006 on not less than forty-five (45) days' prior
notice to IFC, subject to the following terms and conditions:
(i) for a partial prepayment, such prepayment is in an amount not
less than three million Dollars ($3,000,000);
(ii) the Co-Borrowers simultaneously pay the prepayment premium
referred to in subsection (b);
(iii) the Co-Borrowers simultaneously pay all accrued interest on
the amount of the C Loan to be prepaid together with all
other amounts then payable under this Agreement; and
(iv) if IFC so requires, the Co-Borrowers deliver to IFC, prior to
the date of prepayment, evidence satisfactory to IFC that all
governmental approvals necessary in respect of the prepayment
have been obtained.
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(b) The Co-Borrowers shall pay, in respect of each portion of the C Loan
prepaid in accordance with subsection (a), a prepayment premium equal to the
result of multiplying (i) the principal amount of the C Loan being prepaid, (ii)
by eighteen per cent 18%, and (iii) by the number of years (with any partial
year calculated to the nearest one-hundredth of one year based upon a 360-day
year) remaining until the maturity of the C Loan.
Section 2.09. LATE PAYMENT CHARGE. If the Co-Borrowers fail to make any
payment under this Agreement when due, the Co-Borrowers shall pay to IFC a late
payment charge determined in accordance with Section 3.04 of the Loan Agreement,
MUTATIS MUTANDIS, at the rates of (i) two per cent (2%) above the relevant C
Loan Interest Rate, in effect from time to time in respect of any amount overdue
(other than principal) relating to the C Loan, and (ii) two per cent (2%) on any
overdue amount of principal of the C Loan or, in each case, such higher rate
(not to exceed five per cent (5%) above the relevant C Loan Interest Rate in
effect from time to time) of default interest as is charged to the Co-Borrowers
by other lenders.
Section 2.10. GENERAL. (a) Except as otherwise expressly provided in this
Agreement, all the provisions of Sections 3.08, 3.09, 3.10, 3.11(a)(ii) and (b),
3.14 and 3.15 of the Loan Agreement and Articles IV, V (to the extent set forth
in Section 2.06 hereof), VI, VII and VIII of the Loan Agreement shall apply
MUTATIS MUTANDIS to the C Loan as if each reference therein to the A Loan and
Loan Agreement is a reference as well to the C Loan and this Agreement,
respectively, unless the context otherwise requires; accordingly, such
provisions are incorporated herein by reference and this Agreement shall be
construed and interpreted accordingly.
(b) For the avoidance of doubt, any Event of Default or Potential Event
of Default in respect of the A Loan shall constitute an Event of Default or
Potential Event of Default in respect of the C Loan.
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ARTICLE III
MISCELLANEOUS
Section 3.01. DURATION. This Agreement shall continue in force until all
monies payable hereunder shall have been fully paid in accordance with the
provisions hereof.
Section 3.02. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement. In seeking proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto, acting through their duly
authorized representatives, have caused this Agreement to be signed in their
respective names as of the date first above written.
PRICESMART INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President / CEO
PSMT CARIBE INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer / Chief Financial Officer
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XXXX XXXXXXXX/XXXXXX LTD.
By: /s/ Xxxxxx Eseau
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Name: Xxxxxx Eseau
Title: Chairman
INTERNATIONAL FINANCE CORPORATION
By: /s/ Xxxx Xxxxx Xxxxxxxxxxx
Name: Xxxx Xxxxx Xxxxxxxxxxx
Title: Manager Latin America and Caribbean
Department
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SCHEDULE 1
Page 1 of 4
FORM OF C LOAN DISBURSEMENT REQUEST
(See Sections 3.02 and 5.03 of the Loan Agreement)
[LETTERHEAD OF PRICESMART]
[Date]
International Finance Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxxx Xxxxxx of America
Attention: Director, Latin America and Caribbean Department
Ladies and Gentlemen:
Investment No. 10296
REQUEST FOR DISBURSEMENT
1. Please refer to the C Loan Agreement dated as of January 26, 2001 (the
"C Loan Agreement") and the Loan Agreement dated as of January 26, 2001 (the
"Loan Agreement"), each among PriceSmart Inc., PSMT Caribe Inc. and PSMT
Trinidad/Tobago Limited (the "Co-Borrowers") and International Finance
Corporation ("IFC").
2. All terms defined in the Loan Agreement and the C Loan Agreement shall
bear the same meanings herein.
[3. The Co-Borrowers irrevocably request the disbursement, on
____________, 2001 (or as soon as practicable thereafter), of the amount of ten
million Dollars ($10,000,000) under the C Loan (the "Disbursement") in
accordance with the provisions of Section 2.06 of the C Loan Agreement. You are
requested to pay such amount to the account in New York of PriceSmart Inc.,
[Name of correspondent Bank], Account No. ____________ at [Name and Address of
Bank] [for further credit to Co-Borrowers' respective accounts as follows:
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SCHEDULE 1
Page 2 of 4
(a) $__________ to Account No. ___________ of PSMT Caribe Ltd. at
[Name and Address of Bank] in the British Virgin Islands;
(b) $__________ to Account No. ____________ of PSMT
Trinidad/Tobago Limited at [Name and Address of Bank] in
[City], Trinidad and Tobago.(1)
[3. The Co-Borrowers irrevocably request the disbursement, on
____________, 2001 (or as soon as practicable thereafter), of the amount of ten
million Dollars ($10,000,000) under the C Loan (the "Disbursement") in
accordance with the provisions of Section 2.06 of the C Loan Agreement. You are
requested to pay such amount to the account in New York of [CREDITOR], [Name of
correspondent Bank], Account No. ____________ at [Name and Address of Bank]
4. IFC has not heretofore disbursed any amounts under the C Loan to the
Co-Borrowers. Following the disbursement of the amount hereby requested, the C
Loan shall have been fully disbursed.
5. For purposes of Section 2.11 of the C Loan Agreement and Sections 5.02
and 5.03 of the Loan Agreement, PriceSmart, as agent for each of the other
Co-Borrowers, certifies as follows:
(a) PriceSmart has been appointed as agent for each of the Co-Borrowers
(other than PriceSmart) for purposes of making, on behalf of each such
Co-Borrower, the certifications set forth herein;
(b) no Event of Default and no Potential Event of Default has occurred
and is continuing;
(c) the proceeds of the Disbursement are at the date of this request
needed by the Co-Borrowers for the purpose of the Project, or will be needed for
such purpose within three (3) months of such date;
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(1) Any exchange control consents, if required (e.g. for IFC to remit to
overseas account) must be provided by the Co-Borrowers to IFC prior to
disbursement.
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SCHEDULE 1
Page 3 of 4
(d) since the date of the C Loan Agreement nothing has occurred which has
or could reasonably be expected to have a Material Adverse Effect;
(e) since June 30, 2000, none of the Co-Borrowers has incurred any
material loss or liability (except such liabilities as may be incurred by the
Co-Borrowers in accordance with Section 6.02 of the Loan Agreement);
(f) the representations and warranties made in Article IV of the Loan
Agreement are true on the date of this request and will be true on the date of
Disbursement with the same effect as if such representations and warranties had
been made on and as of each such date (but in the case of Section 4.01(c),
without the words in parenthesis);
(g) the proceeds of the Disbursement are not in reimbursement of, or to
be used for, expenditures in the territories of any country which is not a
member of the World Bank or for goods produced in or services supplied from any
such country;
(h) after giving effect to the Disbursement, none of the Co-Borrowers
will be in violation of:
(i) its Charter;
(ii) any provision contained in any document to which it is a
party (including the Loan Agreement) or by which it is bound;
or
(iii) any law, rule, regulation, Authorization or agreement or
other document binding on it directly or indirectly, limiting
or otherwise restricting its borrowing power or authority or
its ability to borrow; and
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SCHEDULE 1
Page 4 of 4
(iv) since [insert the dates of the latest version of the
respective Charters] no amendment has been made to the
Charters of any of the Co-Borrowers [.] [, except for: (list
all amendments).]
6. The certifications in paragraph 5 above are effective as of the date
of this request for disbursement and will continue to be effective as of the
date of disbursement. If any of these certifications is no longer valid as of or
prior to the date of the disbursement hereby requested, the Co-Borrowers will
immediately notify IFC and will repay the amount disbursed upon demand by IFC if
disbursement is made prior to the receipt of such notice.
Yours truly,
PRICESMART INC.
By
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Authorized Representative
Copy to: Manager, Financial Operations Unit
International Finance Corporation
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SCHEDULE 2
Page 1 of 1
FORM OF C LOAN DISBURSEMENT RECEIPT
(See Section 3.02 of the Loan Agreement)
[LETTERHEAD OF PRICESMART]
International Finance Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxxx Xxxxxx of America
Attention: Manager, Financial Operations Unit
Ladies and Gentlemen:
Investment No. 10296
DISBURSEMENT RECEIPT
We, PriceSmart Inc., hereby acknowledge on behalf of PriceSmart Inc.,
PSMT Caribe Inc. and PSMT Trinidad/Tobago Limited, receipt on the date hereof,
of the sum of ten million Dollars ($10,000,000) disbursed to us by International
Finance Corporation ("IFC") under the C Loan provided for in the C Loan
Agreement dated as of January 26, 2001, among PriceSmart Inc., PSMT Caribe Inc.
and PSMT Trinidad/Tobago Limited and International Finance Corporation.
Yours truly,
PRICESMART INC.
By
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Authorized Representative***
*** As named in the Borrower's Certificate of Incumbency and Authority (see
Schedule 1 of the Loan Agreement).
