EXHIBIT 4.3
LOAN AGREEMENT
between
SEGURO DE DEPOSITOS SOCIEDAD ANONIMA
and
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
March 21, 2002.
TABLE OF CONTENTS
PAGES.
Parties and Antecedents. 1
SECTION I
DEFINITIONS AND INTERPRETATION
Article 1.1 General Definitions 2
Article 1.2 Interpretation 5
SECTION II
LOAN
Article 2.1 Loan 6
Article 2.2 Disbursement of the Loan 6
Article 2.3 Repayment of the Loan 6
Article 2.4 Interest 6
Article 2.5 Default Interest. 8
Article 2.6 Automatic Default 8
Article 2.7 Commitment Fee 8
Article 2.8 Currency and Place of Payment. Waiver to the Doctrine of 9
Unforeeseebility.
Article 2.9 Allocation of Partial Payments 11
Article 2.10 Taxes and Other charges 11
SECTION III
REPRESENTATIONS AND WARANTIES
Article 3.1 Representations and Warranties 11
Article 3.2 Reliability of SEDESA. 13
SECTION IV
CONDITIONS PRECEDENT
Article 4.1 Conditions Precedent. 13
Article 4.2 Conditions for the Benefit of SEDESA. 15
SECTION V
SPECIAL COMMITMENTS
Article 5.1 Additional Obligations of the BANK. 15
SECTION VI
ACCELERATION
Article 6.1 Expiration of Terms. 17
Article 6.2 Acceleration Events. 17
Article 6.3 Notice of an Acceleration Event 19
SECTION VII
MISCELLANEOUS
Article 7.1 Special Domiciles and Notices. 19
Article 7.2 Expenses. 20
Article 7.3 Term of the Agreement. 20
Article 7.4 Applicable Law and Jurisdiction. 20
Article 7.5 No-Assignment. 20
Article 7.6 Amendment. 20
Article 7.7 Counterparts. 20
Article 7.8 Remedies and Waivers. 20
LIST OF EXHIBITS
Exhibit 1 Disbursement Application.
Exhibit 2 Form of Promissory Note.
Exhibit 3 Bank's Companies.
This LOAN AGREEMENT (hereinafter called the "Agreement") is entered into in the
City of Buenos Aires, capital city of the Republic of Argentina, on March 21,
2002, by and between:
1.1. SEGURO DE DEPOSITOS S.A. in its capacity as trustee of the Deposit
Guaranty Fund (hereinafter, "SEDESA") domiciled at Xxxxxxx Xxxxxxxxxx
000, Xxxx 00(xxxxxx), Xxxx of BuenOs Aires, represented herein by its
President, Xxxx Xxxxxx Xxxxx, party of the first part, and
1.2. BANCO XX XXXXXXX Y BUENOS AIRES S.A. (hereinafter, the "BANK") domiciled
at Tte. General X. X. Xxxxx 407, City of Buenos Aires, herein represented
by Xxxxxxx X. Xxxxxxxxxx and Xxxxxxx Xxxxxx Xxxxxxx, party of the second
part, (hereinafter, either the BANK or SEDESA may be called the "Party".
The term "Parties" referred jointly to the BANK and SEDESA).
Whereas:
(i) Banco xx Xxxxxxx y Buenos Aires S.A. has submitted for approval to the
Central Bank of the Republic of Argentina (BCRA) a Regularization and
Debt-Free Plan that was called "Capitalization and Liquidity", which
included several measures aiming at reinforcing the BANK's financial
position as well as the liquidity thereof.
(ii) Among the measures provided for to reinforce the BANK's liquidity, the
above mentioned plan considered a contribution from the Deposit Guaranty
Fund (Fondo de Garantia de los Depositos - FGD) of $200,000,000 (two
hundred million) under any of the financial support mechanisms set forth
by Decree No. 540/95 (text according to Decrees Nos. 1292/96 and
1292/99).
(iii) The Steering Committee of the FGD by the meeting held on March 11, 2002
decided to grant the financial assistance requested, by reason of the
exceptional crisis of the Argentine financial and economic system,
leaving the decision relative to the economic conditions of such
assistance to the Board of Directors of SEDESA.
(iv) The Board of Directors of SEDESA, in response to the Decisions adopted by
the Steering Committee, decided to grant a loan to the BANK in US Dollars
to be fully amortized 60 months as from the Disbursement Date and under
the economic terms and conditions as to interest and fees set forth in
this Agreement.
(v) It is the BANK's intention to take a loan from SEDESA, payable from the
proceeds of the FDG, which is administered by SEDESA as Trustee; and it
is SEDESA's intention to grant the loan to the BANK under the terms and
conditions set forth herein.
Therefore, SEDESA and the BANK agree to enter into the following
LOAN AGREEMENT
SECTION I. DEFINITIONS AND INTERPRETATION.
ARTICLE 1.1. GENERAL DEFINITIONS. Every time they are used in this Agreement,
except as otherwise expressly provided, the following terms shall have the
meanings hereinafter assigned thereto:
(1) "AUDITORS", shall mean the firm of accountants who certify the financial
statements of the BANK, or the firm of Independent Public Accountants that the
BANK may, from time to time appoint as auditors with the consent of SEDESA;
(2) "AUTHORITY", shall mean every national, provincial or municipal government,
or organization, department, commission, court, agency or governmental,
administrative, fiscal, judicial, legislative or state agency;
(3) "CENTRAL BANK", shall mean the Central Bank of the Republic of Argentina;
(4) "ACCELERATION EVENT", shall mean any of the events provided in Article 6.2.;
(5) "BANK'S COMPANIES", shall have the meaning set forth in Article 5.1.(vi).
(6) "CONDITIONS PRECEDENT", shall mean every and each condition precedent to the
disbursement of the Loan listed in Article 4.1.
(7) "DISBURSEMENT" shall mean the amount of US Dollars effectively given by
SEDESA to the BANK on the Disbursement Date;
(8) "DISBURSEMENT DATE", shall mean the Business Day in which SEDESA shall pay
the Loan to the BANK, which will be the Business Day immediately following
five-Business Day term after SEDESA received the Disbursement Application
pursuant thereto;
(9) "BUSINESS DAY", shall mean a day in which financial institutions are open to
perform exchange transactions in the Republic of Argentina;
(10) "DOLLARS" and the acronyms "US$" OR "U$S OR U$, shall mean the legal tender
of the United States of America;
(11) "SIGNIFICANT ADVERSE EFFECT", shall mean a Significant Adverse Effect
pursuant to the provisions of SEDESA on:
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(i) the BANK'S capacity to comply with the obligations thereof under the
Agreement;
(ii) the performance, transactions, business, properties, assets, liabilities
or (financial or other) situation of the BANK.
(12) "FISCAL YEAR", shall mean the BANK's fiscal year beginning on January 1, of
each year and ending on December 31, or any other term (of 52 consecutive weeks,
minimum) that the BANK shall establish as its fiscal year with SEDESA's consent;
(13) "BY-LAWS", shall mean the by-laws of the BANK;
(14) "INTEREST RATE DETERMINATION DATE", shall mean the second Business day
prior to the beginning of each Interest Period;
(15) "INTEREST PAYMENT DATE", shall mean June 15 or December 15 of any year the
Loan is pending reimbursement, except if such date is not a Business Day, in
which case the Interest Payment Date shall be the Business Day immediately
following June 15 or December 15, as applicable;
(16) "LOAN EXPIRATION DATE", shall mean the expiration day of the 60 (sixty)
months-term as from the Disbursement Date, and if such Day is not a Business
Day, the immediately following Business Day;
(17) "LIEN", shall mean every mortgage, pledge, charge, assignment, mortgage
record, security interest, ownership lien, priority right, securitization, trust
agreement, trust transfer, compensation rights, counterclaims or bank charges,
privilege or priority of any type that shall have the effect of attaching a
security or creating any other preference of one creditor over another by
application of law;
(18)"APPLICABLE MARGIN", shall mean 000 Xxxxx Xxxxxx.
(19) "SINGLE AND FREE EXCHANGE MARKET", shall mean the exchange market created
by Communication "A" 3471 of the Central Bank dated February 8, 2002;
(20) "PROMISSORY NOTES", shall mean the negotiable instruments governed by
sections 101 et. seq. of Decree-Law 5965/63 referred to in Section 4.1(xii) and
5.1 (xiv) of this Agreement;
(21) "ARGENTINE GAAP", shall mean the generally accepted accounting principles
or the criteria approved at the time prescribed by law by the Professional
Council of Economic Sciences of the Autonomous City of Buenos Aires and/or any
other entity or pertinent Authority, used by the financial institutions in
Argentina to allow a registered
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public accountant in the Republic of Argentina to express his opinion without
any influence with respect to the financial statements of these entities;
(22) "INTEREST PERIOD", shall mean each six (6) month period beginning on an
Interest Payment Date and ending the date immediately prior to the following
Interest Payment Date, except for the first Interest Period when it shall mean
the period beginning on the Disbursement Date and ending the day immediately
prior to the following Interest Payment Date;
(23) "PESOS" and the symbol "$", shall mean the legal tender of the Republic of
Argentina, which shall include any currency that may replace the Peso as the
legal tender of the Republic of Argentina;
(24) "REGULARIZATION AND DEBT-FREE PLAN", shall mean the plan submitted by the
BANK to the Central Bank which includes measures to strengthen the financial and
liquidity structure of the BANK;
(25) "POTENTIAL ACCELERATION EVENT", shall mean any event or circumstance that
by means of a notice, lapse of time, determination or any combination thereof,
if any, shall create a Potential Acceleration Event;
(26) "LOAN", shall mean the amount of Dollars that SEDESA shall lend to the BANK
on the Disbursement Date, which amount shall be equal to $2000,000,000 (Pesos
two hundred million) pursuant to the seller exchange rate quoted by the Banco de
la Nacion Argentina in the Single and Free Exchange Market at the closing of
transactions the Business Day prior to the Disbursement Date - pursuant to the
liquidation performed by SEDESA, which shall be final and conclusive and shall
not be subject to any review except in case of manifest and gross error, or in
case of material and evident error;
(27) "BASIC POINT", shall mean a hundredth part of one per cent, or 0.01%;
(28) "DISBURSEMENT APPLICATION", shall mean the letter that the BANK shall
submit to SEDESA (pursuant to the text of Exhibit 1) requesting to SEDESA the
disbursement of the Loan and evidencing by reliable means - to SEDESA's
satisfaction - the compliance with every and each Condition Precedent;
(29) "LOAN INTEREST RATE", shall mean, for any Interest Period, the annual rate
equal to LIBO plus Applicable Margin
(30) "LIBO RATE", shall mean the annual rate for Dollar deposits for a term
equal to the Interest Period (or, in the case of the first Interest Period, for
a term of one or three months, whichever may be more adequate in SEDESA's
opinion by reason of the time covered by such First Interest Period) offered by
leading banks in the London market, set forth by the "British Bankers
Association Interest Settlements Rates" and either
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declared or published by any service appointed by the British Bankers
Association as an authorized information supplier in order to disclose the rates
determined by such Association;
(31) "FISCAL QUARTER", shall mean each of the four fiscal quarters of a Fiscal
Year;
(32) "SUBSIDIARY", shall mean, as to any person, any entity:
(i) of which more than 50% of the capital thereof, directly or indirectly,
belongs to such person;
(ii) for which such person may nominate or appoint most of the shareholders of
the Board of Directors or the people performing similar activities; or
(iii) otherwise effectively controlled by such person (by ownership or legal
possession of securities, beneficial interest or in any other way, by
contract or in other manner).
ARTICLE 1.2. INTERPRETATION. In this Agreement except as otherwise required:
(a) titles are included for reference only and shall not affect the
interpretation hereof;
(b) terms in singular form, include the plural and vice versa.
(c) every reference to a person includes any natural person, Company, general
partnership, trust, joint venture, association, corporation or any other
artificial person and any National, Provincial or Municipal authority;
(d) every reference to an Article, Section, Attachment, Annex or Exhibit is a
reference to such Article, Section, Attachment, Annex or Exhibit of this
Agreement;
(e) every reference to a document includes any amendment or supplement,
replacement or novation of said document, but does not take into account
any amendment, supplement, replacement or novation made in breach of this
Agreement;
(f) Every reference to a Party to any document shall include permitted
successors and assigns.
SECTION II. THE LOAN.
ARTICLE 2.1. LOAN. Subject to the terms and conditions of this Agreement, SEDESA
agrees to grant to the BANK and the BANK agrees to receive from SEDESA a Loan,
i.e., the amount of Dollars to be delivered by SEDESA to the BANK on the
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Disbursement Date, so; said amount shall be equal to $200,000,000 (two hundred
million Pesos) at the selling rate of exchange quoted by Banco de la Nacion
Argentina in the Single Free Exchange Market at the closing of transactions of
the Business Day prior to the Disbursement Date - pursuant to the liquidation
made by SEDESA, which shall be final and not subject to any review except in
case of evident gross error or evident material error.
ARTICLE 2.2. DISBURSEMENT OF THE LOAN Under the terms and subject to the
satisfaction of the conditions precedent hereof, on the Disbursement Date,
SEDESA shall deliver the Loan to the BANK in the manner established and informed
by SEDESA to the BANK two (2) Business Days prior to the Disbursement Date.
Notwithstanding the receipt that the BANK may deliver to SEDESA of the
Disbursement and acknowledging the obligation to pay the Loan hereunder, any
voucher, receipt or certificate issued by the Central Bank acknowledging such
delivery as above mentioned shall be sufficient evidence of the Disbursement and
payment obligation.
ARTICLE 2.3. REPAYMENT OF THE LOAN. The BANK shall repay the Loan to SEDESA in
Dollars (and not in any other currency) in full on the Loan Expiration Date. The
repayment and cancellation of the Loan shall be made by deposit into SEDESA's
account as informed by it to the BANK at least five (5) Business Days prior to
the Expiration Date. The BANK may demand the delivery of a formal receipt which
SEDESA hereby agrees to issue and deliver.
ARTICLE 2.4. INTEREST. The BANK shall pay interest in Dollars pursuant to the
provisions of this Article 2.4, on the amount of the Disbursement, form the
Disbursement Date up to the total repayment thereof to SEDESA.
2.4.1. INTEREST. (a) During each Interest Period, the Loan shall accrue interest
at the Interest Rate of the Loan on the Disbursed Amount owed by the BANK.
(b) Interest shall accrue on a daily basis pro rata based on a 365-day year and
the number of days effectively elapsed of the pertinent Interest Period and
shall be payable in Dollars in arrears on the Interest Payment Date immediately
following the last day of the pertinent Interest Period.
(c) The interest rate applicable to calculate this interest shall be the
Interest Rate of the Loan, i.e., the LIBO Rate plus the Applicable Margin.
(d) If on the Interest Rate Determination Date of any Interest Period, SEDESA is
not able to determine the LIBO Rate under the provisions of paragraph 30,
Section I hereof, SEDESA shall give notice thereof to the BANK and determine the
LIBO Rate as follows:
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(i) Calculating, on the Interest Rate Determination Date, the arithmetic
average (rounded up to the nearest three decimals) of the rates offered
approximately at 11 a.m., London time, for 189-day Dollar deposits by
four (4) leading banks selected by SEDESA operating in Dollars in the
London interbank market. If SEDESA should receive less than four
quotations, it shall calculate the arithmetic average of the offered
rates based on the received quotations, provided that said quotations are
not less than two (2); or
(ii) if SEDESA should receive only one quotation from the London Banks
indicated in item (i) above, it shall calculate the arithmetic average
(rounded up to the nearest three decimals) of the rates offered at
approximately 11 a.m., New York time, for 180-day Dollar loans to leading
companies by one or more leading banks operating in the New York, N.Y.
USA, selected by SEDESA.
(e) On each Interest Rate Determination Date for any Interest Period, SEDESA
shall determine the Interest Rate of the Loan applicable to such Interest Period
pursuant to the procedure described in items b), c) and d) above and immediately
inform such Interest Rate to the BANK.
(f) The regular and timely Determination of the Interest Rate of the Loan made
by SEDESA shall be final and binding to the BANK and SEDESA, except in case of
evident gross error.
2.4.2 DEFAULT INTEREST. Notwithstanding the remedies available to SEDESA
hereunder and to the maximum extent permitted by the applicable laws, if the
BANK should not:
(a) Pay the Loan and/or interest on the Expiration Date and/or the pertinent
Interest Payment Dates; or
(b) pay any other obligation set forth herein;
the BANK shall pay default interest on any due and unpaid amount at fifty
percent (50%) of the Interest Rate of the Loan in force at the time of default
from the payment date of the unpaid amount until the effective payment thereof.
ARTICLE 2.5. AUTOMATIC DEFAULT. Default shall occur automatically due to the
lapse of the terms set forth herein to perform the pertinent obligations without
need of any court or out-of-court prior demand.
ARTICLE 2.6. PREPAYMENT. (a) The BANK may prepay all or part of the Loan on any
Interest Payment Date by notice to SEDESA at least 15 Business Days in advance
but only if:
(i) The BANK should simultaneously pay all ordinary and default interest
outstanding hereunder;
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(ii) in case of a partial prepayment of the Loan, it should be in a minimum
amount of fifty million Dollars (US$ 50,000,000);
(b) Any amount of the Loan prepaid hereunder shall not be borrowed again.
ARTICLE 2.7. COMMITMENT FEE. The BANK shall pay to SEDESA a commitment fee equal
to three percent (3%) per annum of the Loan applicable on the amount of Dollars
of the Loan corresponding to the calendar days from the execution date hereof to
the Disbursement Date. The BANK hereby irrevocably authorizes SEDESA to deduct
from the Loan, on the Disbursement Date, the amount of Dollars of the Commitment
Fee. SEDESA and the BANK hereby expressly agree that the Commitment Fee shall be
paid by the BANK even if the Loan is not Disbursed due to any reason whatsoever.
To such end, it shall be understood that the Commitment Fee shall be due and
payable by SEDESA if the Disbursement has not been made on or before May 31,
2002. In such case, the Commitment Fee shall be accrued again on June 1, until
the Disbursement Date, being payable on the last day of each month and until the
BANK informs SEDESA in writing that any of the conditions precedent has not been
satisfied and is not likely to be satisfied. In such case, the agreement shall
terminate and none of the Parties shall be entitled to make any claim to the
other except for the Commitment Fee set forth herein not paid hereunder.
ARTICLE 2.8. CURRENCY AND PLACE OF PAYMENT. WAIVER TO THE DOCTRINE OF
UNFOREESEEBILITY. (a) The BANK shall make all payments hereunder (including the
repayment of the Loan, including without limitation, ordinary or default
interest and any other payment owed to SEDESA by the BANK hereunder), only in
Dollars and not in any other currency by deposit into the bank account or
accounts informed by SEDESA to the BANK at least five (5) Business Days in
advance of the pertinent payment date.
(b) The BANK's payment obligations hereunder shall only be considered satisfied
upon effective reception by SEDESA of an amount of Dollars equal to the
aggregate amount or amounts received by the BANK. The payment obligations of the
BANK hereunder or in relation hereto shall not be considered fully satisfied by
the mere delivery to SEDESA of any amount of money in a currency other than the
legal tender in the United States, even if the payment in such other currency
had been ordered by judgment of a competent court and SEDESA had not been
entitled to challenge such payment in another currency or refuse to receive such
amounts paid by court order except if the amount or the payment in a currency
other than Dollars should have resulted in the effective payment of the
aggregate amount due in Dollars into the bank accounts of SEDESA in the City of
New York and, as a consequence, the amount (if any) in dollars by which the
payment in the different currency is insufficient to pay the aggregate
obligation in Dollars shall remain owed to SEDESA as a separate and independent
obligation not affected by the judgment obtained by SEDESA to collect the
amounts due hereunder. The BANK shall fully indemnify SEDESA and keep it
harmless against any loss incurred by SEDESA as a consequence of any difference
between the aggregate
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amount in Dollars owed hereunder and the amounts in Dollars effectively acquired
by SEDESA or that it may have acquired with the amounts in a currency other than
Dollars received by SEDESA from to BANK. To such end, the rate of exchange
applicable to both currencies shall be the one in force in the market where
Dollars may be exchanged for the amount received by SEDESA on the date of
reception thereof.
(c) If, on the date of payment of any amount due hereunder, there is any
prohibition by the Central Bank or any other authority, that prevents or
restricts access by the BANK to the Single Free Exchange Market, thus preventing
it from performing its payment obligations in Dollars, the BANK shall pay all
amounts due hereunder in Dollars through the following methods, as selected by
SEDESA,
(i) The purchase of Bonds or any other National Government debt security in
Dollars and the transfer and sale thereof for Dollars outside the
Republic of Argentina in a number of Bonds or Securities that, once
liquidated in said foreign market and deducted all taxes and expenses,
the amount of Dollars arising from the sale thereof shall be equal to the
amount of said currency payable hereunder;
(ii) The delivery to SEDESA of bonds or any other National Government debt
securities in Dollars, to the satisfaction of SEDESA, in an amount that,
once liquidated in a foreign market and deducted all taxes and expenses,
the proceeds thereof in Dollars shall be equal to the amount of said
currency payable hereunder;
(iii) In case of any restriction or prohibition in the Republic of Argentina
that should prevent the BANK from performing the transactions indicated
above, by delivery to SEDESA of Pesos in an amount that, on the pertinent
payment date, said Pesos are sufficient, after all taxes and expenses, to
acquire the Dollars payable by the BANK at the selling rate of exchange
informed by Banco de la Nacion Argentina in the Single Free Exchange
Market at the closing of the Business Day immediately prior to the
pertinent payment date; or
(iv) Any other legal proceeding in force in the Republic of Argentina for the
acquisition of Dollars on any pertinent payment date.
(d) It is expressly agreed that in any of the cases mentioned in items (i) to
(iv) above, the amounts payable by the BANK shall be considered duly paid and
cancelled and said payment shall release the BANK from any obligation only upon
effective deposit into the account of SEDESA of the exact aggregate amount of
Dollars payable by the BANK hereunder.
(e) All expenses, fees and taxes payable in relation to the procedures mentioned
in this Article 2.8. shall be borne by the BANK.
(f) The BANK hereby unconditionally and irrevocably waives its right to invoke:
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(i) the doctrine of unforeseebility (section 1198, second paragraph of the
Civil Code of the Republic of Argentina) and/or force majeure or Act of
God (514 of the Civil Code of the Republic of Argentina); or
(ii) any right available to it, to pay any of its obligations hereunder with a
currency other than Dollars or with a lower amount thereof.
(g) This waiver has been made by the BANK after analyzing the Dollar / Peso rate
of exchange in force on the date of execution hereof and its future evolution
and the certain possibility that said rate of exchange may, after the execution
hereof, be substantially modified thus causing the reduction of the value of the
Peso as against the Dollar.
ARTICLE 2.9. ALLOCATION OF PARTIAL PAYMENTS. If SEDESA should receive, at any
time, less than the aggregate amount payable at such time hereunder, SEDESA
shall allocate and apply such payment, first, to pay any expense incurred by
SEDESA hereunder; then, to pay any default interest due; then to pay ordinary
interest and finally to pay the Loan.
ARTICLE 2.10. TAXES AND OTHER CHARGES. (a) The BANK shall pay or arrange for the
payment of all taxes, rates, duties, rights, fees and other charges of any
nature, if any, that may at present or in the future apply to the payment of all
or any of the amounts payable hereunder.
(b) All payments of the Loan, interest and other amounts owed to SEDESA
hereunder shall be made with no deduction of any tax, rate, duty, right or other
charge as mentioned in item (a) above.
(c) If the BANK should not be able, under the law, to pay or provide for the
payment of its obligations to SEDESA without deducting the amounts due as taxes,
rates, duties and other rights, then the amounts due as repayment of the Loan
(or as applicable), interest or other amounts payable hereunder shall be
increased up to the amount necessary for SEDESA to receive the aggregate amount
that it should have received (taking into account said taxes, rates, duties,
rights, fees or other charges payable on the amounts owed by the BANK hereunder)
if such payments were made without deduction.
(d) If item (c) above should be applicable and if so required by SEDESA, the
BANK shall deliver to SEDESA official receipts of the pertinent payment (or
certified copies thereof) within thirty (30) days after the payment date.
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SECTION III. REPRESENTATIONS AND WARRANTIES
ARTICLE 3.1. REPRESENTATIONS AND WARRANTIES. The BANK hereby represents and
warrants that:
(a) it is a financial institution duly incorporated and operating under the laws
of the Republic of Argentina and is authorized and entitled to own its assets,
operate as it does in the present and execute this Agreement and perform its
obligations hereunder;
(b) the execution and performance hereof are not and shall not be in conflict
with and do not and shall not cause the breach of any of the terms, conditions
or provisions of any trust, mortgage, contract or other agreement or instrument
either present or future ("the usual causes of obligations") to which the BANK
is or may be a party or under which it may be bound and the execution or
performance hereof shall not imply the nonperformance or require any consent
provided for by the "Usual Causes of Obligations" and shall not breach any term
or provision of the BANK's By-Laws, or any judgment, decree, order or any law,
rule or regulation applicable to the BANK;
(c) The BANK's financial statements for the period ended on December 31, 2001:
(i) have been prepared under the accounting regulations set forth by the BCRA
applicable to financial institutions and, to the extent they are in
compliance with such accounting regulations, under the Argentinean GAAP
homogeneously applied and they represent the accurate and reasonable
financial situation of the BANK as of the date thereof and the results of
the transactions made by the BANK during such period;
(ii) show all the obligations (contingent or otherwise) of the BANK, and the
reserves, if any, created in respect of such obligations and all the
unrealized or anticipated losses arising from contracts executed by the
BANK (either mentioned or not in such financial statements);
(d) the BANK is not subject to any Lien on any of its assets other than those
required by law and there are no agreements or contracts, conditional or
unconditional, for the creation of any Lien by the BANK;
(e) the BANK pays all taxes, rates and duties, either National, Provincial and
Municipal and all contributions and other Social Security obligations applicable
to the BANK, its assets, income or goods, in due time;
(f) the BANK is not a party to any action, and, to the best of its knowledge on
the date hereof, no proceeding is pending, either legal, arbitrary or
administrative that may have a substantial adverse effect on its commercial
projections or financial condition or that may have a Significant Adverse
Effect;
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(g) to its best knowledge, the BANK is not in breach of any law or regulation
issued by any Authority and no judgment or decision has been rendered that has
or may have an Significant Adverse Effect or that may prevent the BANK from
complying with or performing its obligations hereunder;
(h) the BANK owns or is entitled to use all trade marks, permits, service
brands, commercial names, licenses or rights thereon and has obtain the
assignment of all leases or any other rights necessary for its current and
future operation without any known conflict with third party rights that have
or, if not obtained, may have, as the case may be, a Significant Adverse Effect;
(i) the BANK's obligations arising herefrom are not subject to any privilege or
special guaranty other than those of any unsecured creditor of the BANK;
(j) no strike, slowdown or any other measure is taking place or threatened by
the employees of the BANK that has or may have a Significant Adverse Effect.
There are no claims for undue practices related to the unions pending or
threatened against the BANK and there are no charges, complaints or proceedings
arising from any labor relation pending or threatened against the BANK that have
or may have a Significant Adverse Effect.
ARTICLE 3.2. RELIABILITY OF SEDESA. (a) The BANK hereby acknowledges that its
representations and warranties expressed in Article 3.1 are made in order to
induce SEDESA to execute this Agreement and disburse the Loan on the
Disbursement Date and that SEDESA executes this agreement and shall disburse the
Loan on the Disbursement Date based and relying on all and each of said
representations and warranties.
(b) The BANK hereby represents to SEDESA that each of the representations and
warranties is true and correct as of the date hereof and shall be so on the
Disbursement Date and shall remain true and correct during the life of the
Agreement and that no issue has been omitted, which omission would cause such
representations and warranties to be misleading.
SECTION IV. CONDITIONS PRECEDENT.
ARTICLE 4.1. CONDITIONS PRECEDENT. SEDESA's obligation to disburse the Loan on
the Disbursement Date is subject to the compliance with the following conditions
to the satisfaction of SEDESA:
(i) The Board of Directors of the Central Bank shall have expressly approved
the Regularization and Debt-Free Plan of the BANK providing for the
granting of a Loan by SEDESA as Trustee of a Deposit Guaranty Fund under
the financial terms and conditions hereof;
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(ii) All capitalization of debts and/or principal contributions and/or
refinancing of the BANK's debts to certain creditors as set forth in the
mentioned Regularization and Debt-Free Plan shall have been duly
authorized by the corporate bodies of the BANK, the authorities of the
Argentinean capital market and the Central Bank and effectively made
and/or paid by the creditors and/or contributors;
(iii) The Central Bank, the Mutual Bank for Bank Assistance (Fondo Fiduciario
de Asistencia Bancaria: FFAB) and other financial institutions shall have
disbursed to the BANK the contributions mentioned in the Regularization
and Debt-Free Plan;
(iv) At the exclusive criteria of SEDESA's Board of Directors, no event of any
nature shall have occurred from the date of Execution hereof to the
Disbursement Date, that may seriously affect the capacity of the BANK to
repay the Loan and/or the interest thereon under the terms and conditions
hereof;
(v) The BANK's Board of Directors shall have approved the Agreement
evidencing this transaction and said approval shall have been favorably
approved by the BANK's Supervisory Board;
(vi) SEDESA's Board of Directors shall have approved the Agreement;
(vii) No Acceleration or Potential Acceleration event shall exist and no event
or circumstance that, due to notice, the lapse of time, a declaration of
will by SEDESA or any combination thereof shall have occurred that may
become an Acceleration Event in respect of the Agreement;
(viii) SEDESA shall have received a legal opinion from the external legal
advisors of the BANK at the entire satisfaction of SEDESA;
(ix) No event shall have occurred that has or may reasonably be expected to
have a Significant Adverse Effect on the Regularization and Debt-Free
Plan or the commercial projections or the financial condition of the
BANK; or that may prevent the BANK from performing any of its obligations
hereunder;
(x) The BANK shall not have incurred in any substantial loss or liability
from the date of execution hereof until the Disbursement Date;
(xi) The representations and warranties made in Section IV shall be true and
correct in all material respects as of the Disbursement Date;
(xii) The BANK shall have delivered to SEDESA, together with the Disbursement
Application, two Promissory Notes to the order of SEDESA, substantially
in the form of Exhibit 2; one for the amount of interest corresponding to
the first Interest Period with maturity on the Interest Payment Date
immediately following the Disbursement Date and the other one with
maturity on the Loan Expiration Date for an amount in Dollars (and only
Dollars) equal to the amount of the Loan;
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(xiii) the BANK shall have submitted to SEDESA the Disbursement Application.
ARTICLE 4.2. CONDITIONS FOR THE BENEFIT OF SEDESA. The conditions mentioned in
Article 4.1. hereof shall inure in the benefit of SEDESA and only SEDESA may
release the BANK from the obligation to perform. To such end, and upon written
request from the BANK, SEDESA shall state, by written notice addressed to the
BANK, that one or more conditions precedent shall be considered as not written.
SECTION V. SPECIAL COMMITMENTS.
ARTICLE 5.1. ADDITIONAL OBLIGATIONS OF THE BANK. The BANK shall do or, abstain
from doing, as applicable, any of the following acts:
(i) Inform SEDESA less than 5 (five) days before every meeting of the Board
of Directors of the BANK, the Order of Business to be dealt with, and a
representative of SEDESA shall be allowed to attend the meeting not being
entitled to vote.
(ii) comply with the prudential technical relations set forth by the Central
Bank as to freezing, liquidity requirements, risk assets and loans to
related persons.
(iii) send to SEDESA copy of the documents and the information that the BANK
sends from time to time to the Central Bank in compliance with the
regulations and specially, the following information:
- Balance-sheets issued monthly and quarterly.
- Changes of deposit balances and other items.
(iv) comply with the Regularization and Debt-Free Plan accepted by the Central
Bank.
(v) not to grant securities on properties requiring previous authorization
from the Central Bank pursuant to Article 28, of Law No. 21526 as
amended, to other existing or future creditors placing them in a better
preference position than applicable to SEDESA by this Agreement.
(vi) the BANK shall not operate per se, or by any third party any commercial,
industrial, agricultural, service or any other type of business beyond
the activities presently operated through its controlled and related
companies, according to the list attached hereto as Exhibit 3 (the
"Bank's Companies"), even if it has the authorization from the Central
Bank to acquire a majority interest or mere holding, except for the
companies that the BANK may acquire in relation to credits;
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(vii) not to increase its present share in the Bank's Companies, except if such
increases have been approved by the Central Bank and were consistent with
the terms and conditions of the Regularization and Debt-Free Plan;
(viii) pay on time all national, provincial or municipal taxes, charges and fees
and Social Security taxes, charges and fees;
(ix) not to levy any Lien of any nature whatsoever on its properties;
(x) not to sell, dispose of, or transfer, in any manner whatsoever, the fixed
assets thereof, except for the assets existing at the BANK that were
acquired in relation to the credits, and always provided they were
accounted for, pursuant to generally accepted accounting principles, as
"sundry property" in the BANK'S accounting records;
(xi) the BANK shall not make any share capital reduction;
(xii) the BANK shall not amend the By-Laws thereof;
(xiii) the BANK shall allow SEDESA, until the Loan and the interest thereof are
completely and fully paid up, to have access at all times, and the BANK
shall immediately allow such access, to the books and accounting records
of the BANK and supporting documentation, as well as to access all
information that SEDESA or the organization acting in replacement
thereof, may consider necessary, at its sole discretion. The BANK shall
be bound to allow access to the persons that SEDESA may designate, and
make available the facilities, documents and elements necessary for the
person assigned to develop the tasks to perform;
(xiv) deliver to SEDESA on each Interest Payment Date a Promissory Note,
pursuant to the provisions included in Exhibit 2, to the order of SEDESA
as trustee of the Guaranty Deposit Fund issued on the applicable Interest
Payment Date, expiring on the immediately following Interest Payment
Date, for an amount equal to the interest amount that the BANK shall pay
to SEDESA in Dollars on the expiration Date of such Promissory Note as
interest for the Interest Period beginning on the Promissory Note's issue
date.
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SECTION VI. ACCELERATION.
ARTICLE 6.1. EXPIRATION TERMS. In the event of an Acceleration Event, all
outstanding terms for the payment of the Loan, as well as the terms for the
payment of interest outstanding at the time of occurrence of an Acceleration
Event, shall be considered expired and terminated, on condition that SEDESA had
declared said debt to be enforceable pursuant to the proceeding set forth in the
following paragraph 6.2.
ARTICLE 6.2. ACCELERATION EVENTS.
IF AND WHEN:
(i) the BANK did not comply with any of its payment obligations under this
Agreement, and any other obligation including, without limitation,
obligations provided in Article 5.1. hereof;
(ii) the BANK failed to comply with any of its payment obligations to third
parties arising from any legal event or act always provided such
obligation was higher than U$S200,000 (two hundred thousand) or its
equivalent in pesos pursuant to the exchange rate of the Single and Free
Exchange Market;
(iii) the direct or indirect control of the BANK was transferred in one or more
acts, to a third party, or third parties acting jointly or not, without
the prior knowledge and consent of SEDESA, or if the present majority
shareholders lost their majority for any cause or proceeding. Submittal
of the transfers or acquisitions of the controlling block to the
authorization of the Central Bank would be irrelevant for the purposes
hereof;
(iv) the meeting of shareholders of the BANK decided to approve the payment of
dividends during the life of this Agreement, or authorized the payment of
compensations to the members of the Board of Directors and Supervisory
Board in breach of the provisions of Article 261 of the Law of
Corporations, or even if within the limits provided by such Article 261,
it violated market regulations relative to the compensation of
technical-administrative activities performed by administrators of
financial institutions comparable to the BANK in terms of deposits and/or
volume of transactions or market share;
(v) the representations and warranties made by the BANK in this Agreement
were totally or partially false, inaccurate, incomplete or deceitful.;
(vi) the BANK began bankruptcy or winding-up proceedings or was suspended by
the Central Bank pursuant to the provisions of Law 21526 as amended,
and Law
16
24141, as amended, or was deprived of its assets by BCRA's Regulation in
furtherance of the provisions of Article 35 bis of the Law of Financial
Institutions;
(vii) a significant portion of the properties and assets of the BANK suffered
any inhibition, attachment or preliminary injunction and such measures
were not cancelled within 5(five) Business Days as from the notice
thereof;
(ix) an action or administrative proceeding was brought against the BANK which
eventual or possible result would compromise fulfillment of this
Agreement by the BANK;
(x) a portion of the assets thereof equal to five percent (5%) of the
shareholder's equity, pursuant to the monthly balance sheet presented to
the Central Bank immediately before the occurrence of any of the Events
(as this term is defined in this paragraph), were (i) expropriated, (ii)
transferred, or suffered any (iii) inhibition, (iv) attachment or (v)
preliminary injunction or if it incurred in (vi) default in the payment
of any debt incurred with any public or private, national or foreign
organization, either a natural person or an artificial person (the events
listed from (i) to (vi) above, the "Events") and such inhibition,
attachment, preliminary injunction or default payment was not preliminary
injunction within 30 (thirty) Business Days as from notice of declaration
or creation thereof;
(xi) significant amendments detrimental to the BANK's financial position were
caused and the shareholder's equity thereof was reduced in more than 5%
(five percent);
(xii) changes were produced in applicable laws and regulations, rules and
interpretation thereof, which at SEDESA's criteria, would cause the terms
of the Loan to be illegal or excessively onerous, for any cause
whatsoever; or
(xiii) the Meeting of Shareholders of the Bank decided in favor of any of the
provisions set forth in Article 244, last paragraph, of the Law of
Corporations.
THEN,
SEDESA, by written notice to the BANK, may demand from the BANK the payment of
all sums due under the Agreement. Upon reception of notice, the BANK shall
immediately pay the Loan, as well as the interest accrued therefrom and any
other amount that shall become enforceable pursuant to the terms and conditions
hereof.
ARTICLE 6.3. NOTICE OF AN ACCELERATION EVENT. If an Acceleration Event or a
Potential Acceleration Event occurred, the BANK shall immediately give notice to
SEDESA specifying the nature of such Acceleration Event or Potential
Acceleration Event, and the measures the BANK shall have taken to cure it. Under
no circumstance, shall this notice be understood as limiting or restricting or
extinguishing the right of SEDESA to
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declare the expiration of the term of all obligations of the BANK pursuant to
the Agreement.
SECTION VII. MISCELLANEOUS.
ARTICLE 7.1. SPECIAL DOMICILES AND NOTICES. Every notice, request or any other
communication that should be submitted, granted or made under the Agreement,
shall be made in writing. Except as otherwise provided, said notice, request or
other communication may be delivered personally, by mail, registered letter or
any other reliable means addressed to the applicable Party's address set forth
below or any other address that such Party may duly indicate to the other.
To the BANK:
BANCO XX XXXXXXX Y BUENOS AIRES X.X.
Xxxxxxxx General X. X. Xxxxx 407,
City of Buenos Aires
Attention: Xxxxxxx X. Xxxxxxxxxx.
To SEDESA:
SEGURO DE DEPOSITOS SOCIEDAD ANONIMA
Xxxxxxx Xxxxxxxxxx Xx. 000 Xxxx 00(xxxxxx).
Xxxx of Buenos Aires.
Attention: Xxxx Xxxxxx Xxxxx.
ARTICLE 7.2. EXPENSES. The BANK shall fully pay to SEDESA all costs and expenses
in which SEDESA should have incurred in relation to the execution of this
Agreement and the Promissory Notes.
ARTICLE 7.3. TERM OF THE AGREEMENT. This Agreement shall continue to be in force
until all sums payable there under be paid in full pursuant to the provisions
thereof.
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ARTICLE 7.4. APPLICABLE LAW AND JURISDICTION. The validity, enforceability and
interpretation of this Agreement shall be exclusively governed by the laws of
the Republic of Argentina. The Parties hereto expressly agree that any
controversy, disagreement or claim relative to the interpretation and/or
application and/or execution of this Agreement, shall be submitted to the
exclusive jurisdiction of the national courts having jurisdiction in commercial
matters of the City of Buenos Aires, waiving any other venue or jurisdiction.
ARTICLE 7.5. NO-ASSIGNMENT. The BANK may not assign or delegate any of its
rights or obligations under this Agreement without the prior written consent of
SEDESA. Any breach of this Article shall be void and ineffective.
ARTICLE 7.6. AMENDMENT. Any amendment to this Agreement shall be made in writing
and executed by both Parties.
ARTICLE 7.7. COUNTERPARTS. This Agreement is entered into in two counterparts,
each of which shall constitute an original.
ARTICLE 7.8. REMEDIES AND WAIVER. Failure or Delay of SEDESA to exercise any
power, authority or any other right pursuant to this Agreement shall not
constitute a waiver or limitation to such right or any other right of SEDESA,
and the singular or partial exercise of such right shall not prevent the future
exercise thereof. None of said waivers shall constitute a waiver of any other
right pursuant to this Agreement. All waivers and consents granted under this
Agreement shall be in writing.
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IN WITNESS WHEREOF, the Parties have executed this Agreement, per se, on the
date first above mentioned.
By: ___________________________
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
By: ___________________________
Seguro de Depositos S.A. (SEDESA)
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EXHIBIT 1.
DISBURSEMENT APPLICATION
21
Buenos Aires, _________, 2002.
Mr.
President of
SEGURO DE DEPOSITOS SOCIEDAD ANONIMA.
Xxxx Xxxxxx Xxxxx.
RE.: COMPLIANCE WITH CONDITION PRECEDENT AND DISBURSEMENT APPLICATION.
Dear Sirs:
We make reference to the Loan Agreement
entered into on March ___, 2002 by and between Seguro de Depositos Sociedad
Anonima as trustee of the Deposit Guaranty Fund (SEDESA) and Banco xx Xxxxxxx y
Buenos Aires S.A. (the BANK) (the "Agreement"). All capitalized terms, words and
expressions defined herein shall have the same meanings assigned to such terms,
words and expressions in the Agreement.
I - In this sense, and in order to provide
evidence of the Conditions Precedent by the BANK, we attach the following
documents:
1. Certified copy of the Minutes of the Board of Directors of the Central
Bank where said institution expressly authorizes the Regularization and
Debt-Free Plan submitted by the BANK, showing a loan by SEDESA as Trustee
of the Deposit Guaranty Fund.
2. Certified copy of the Minutes of the Board of Directors and Meeting of
Shareholders of the BANK authorizing the capitalization of debts and/or
refinancing of the BANK's debts with certain creditors according to the
provisions of the Regularization and Debt-Free Plan.
3. Certified Copy of the Minutes of the Board of Directors of the Central
Bank authorizing the capitalization of debts and/or capital contributions
and/or refinancing by the BANK of the BANK's debts with certain creditors
according to the provisions of the Regularization and Debt-Free Plan.
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4. Certified Copy of the Resolution of the National Securities Commission.
authorizing the capitalization of debts and/or capital contributions
and/or refinancing by the BANK of the BANK's debts with certain creditors
according to the provisions of the Regularization and Debt-Free Plan.
5. Auditor's Accounting Certification - with signature certified by the
Professional Council of Economic Sciences of the City of Buenos Aires -
by which the Auditors certify that the capitalization of debts and/or
capital contributions and/or refinancing by the BANK of the BANK's debts
with certain creditors according to the provisions of the Regularization
and Debt-Free Plan have been effectively concluded and/or disbursed by
the creditors and/or capital contributors.
6. Auditor's Accounting Certification - with signature certified by the
Professional Council of Economic Sciences of the City of Buenos Aires -
by which the Auditors certify that the Mutual Fund for Bank Assistance
(FFAB) and other financial institutions have effectively disbursed in
favor of the BANK the contributions set forth in the Regularization and
Debt-Free plan.
7. Certified copy of the Minutes of the Board of Directors of the BANK and
Supervisory Board of the BANK approved in the Agreement.
8. Letter from the legal advisor of the BANK - with signature and legal
capacity certified by Notary Public - addressed to the President of
SEDESA where he expressed that since the date of execution of the
Agreement to the date of the Disbursement Application (i) no Acceleration
Event or Potential Acceleration event has occurred; (ii) no event has
occurred that may be reasonable presumed to have a Substantial Adverse
Effect on the Regularization and Debt-Free Plan, or on the commercial
forecasts or financial position of the BANK; (iii) the BANK has not
incurred in any loss or substantial liability; and (iv) Representations
and warranties made in Section IV are true and correct.
II - Having the BANK complied with the
Condition Precedent, we hereby request to SEDESA disbursement of the Loan.
Sincerely,
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
BY: __________________________________________
Authorized Representative
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EXHIBIT 2.
FORM OF PROMISSORY NOTE
24
PROMISSORY NOTE
U$S _____________
(United States Dollars _________)[FILL IN WITH THE AMOUNT OF THE LOAN OR THE
AMOUNT PAYABLE IN EACH INTEREST PERIOD, AS APPLICABLE]
Buenos Aires, _______ , 2002. [FILL IN WITH THE DISBURSEMENT DATE OR INTEREST
PAYMENT DATE, AS APPLICABLE]
I promise to unconditionally pay [FILL IN WITH THE LOAN EXPIRATION DATE OR THE
INTEREST PAYMENT DATE, AS APPLICABLE] and without protest to SEGURO DE DEPOSITOS
S.A. in its capacity as Trustee of the Deposit Guaranty Fund (hereinafter
"SEDESA"), or at its order, the amount of U$S ____________ (United States
Dollars ________) [FILL IN WITH THE AMOUNT OF THE LOAN OR THE AMOUNT THAT SHALL
BE PAID IN EACH INTEREST PERIOD, AS APPLICABLE] and only in that currency (cash
payment in foreign currency clause, third paragraph of article 44, decree law
5965/63).
BANK ________________________
Signature:
Name:
Position:
Address:
(Notarial Certification of identity and legal capacity of the xxxxxx)
25
EXHIBIT 3.
BANK'S COMPANIES
26
