EXHIBIT 10.2
PROMISSORY NOTE
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(Demand / Term)
(Base Rate / LIBOR / Fixed Rate)
USD $3.750.000,00 April 26 2000
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FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby
promises to pay to BANCO BILBAO VIZCAYA, S.A. (the "Bank") at Elizabethan Square
▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands, B.W.I., the principal sum of THREE
MILLION SEVEN HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS in lawful money of
UNITED STATES OF AMERICA and in immediately available funds:
[x] on demand,
[ ] ______days from date
[ ] on_____________________
[maturity date]
The Borrower promises also to pay interest on the unpaid
principal hereof in like money and like funds at said office from the date
hereof until paid:
[X] at the rate of 11,50% per annum
[ ] at the rate of ___% per annum
above the Bank's floating Base Lending Rate
[ ] ___% per annum above LIBOR___ MONTH(s)
provided that, on and after maturity (by acceleration or otherwise), such rate
per annum shall be 2% in excess of that which would otherwise be applicable and
provided further that the interest rate applicable hereunder shall at all times
be the lesser of (a) the rate specified herein or (b) the maximum permitted by
law. "Base Lending Rate" shall mean the rate announced by the Bank from time to
time at its Grand Cayman Office as base lending rate for domestic commercial
loans, such rate to change on the effective date of each change in the Base
Lending Rate so announced by the Bank. Interest shall be computed on the number
of days actually elapsed on the basis of a 360-day year. "LIBOR" shall mean the
interest rate per annum quoted to the Bank in the London interbank borrowing
market for deposits of U.S. dollars in such amount and for such duration as
corresponds to the loan in question.
Such interest shall be payable:
[ ] monthly
[ ] bimonthly
[X] quarterly
[ ] semiannually
[ ] annually
[ ] at maturity only
in arrears, commencing on the date of disbursement of the funds, upon any
prepayment hereon (to the extent accrued on the amount thereof); at maturity
(whether by acceleration or otherwise) or, if the principal hereof is due on
demand, on demand; and after maturity on demand.
All payments by the Borrower under this Note are to be made
without any withholding or deduction for any and all present or future taxes,
duties, levies, fees or other charges and without any set-off or counter-claim
whatsoever. If any
deduction or withholding is required in respect of any sum payable under this
Note, the Borrower shall increase the sum so that the net amount received by
the Bank after the deduction of withholding (and after the payment of any tax
or additional tax which is due as a consequence of the increase) shall be
equal to the amount which the Bank would have been entitled to receive in the
absence of any requirement to make a deduction or withholding.
If in connection with any loan to which the LIBOR-based
interest rate applies there shall occur any event (including but not limited to
an increase in reserve requirements) which the Bank in its sole discretion
determines would result in the Bank not receiving interest effective at the rate
specified herein, the Borrower shall pay to the Bank, on demand, such additional
amounts as may be necessary to compensate the Bank for any such deficiency.
Without prejudice to the Bank's right hereunder, if for any
reason it becomes unlawful or impossible for the Bank to make, maintain or fund
this Note or give effect to its obligations as contemplated by this Note, or any
of the obligations expressed as being assumed by the Borrower under this Note is
not or ceases to be valid, legal, binding and enforceable against the Borrower
in accordance with its terms, the Bank's obligations hereunder shall terminate
and the Bank may, by written notice to the Borrower, terminate this Note
forthwith and demand immediate payment of, and the Borrower will forthwith pay
the Bank, all sums outstanding hereunder.
Upon the occurrence of any of the following specified events
of default - (a) the Borrower shall default in the due and punctual payment of
any interest on this Note; or (b) any representation, warranty or statement made
by the Borrower herein or in writing in connection herewith, or in any
certificate or financial or other statement furnished in connection herewith,
shall be reached or shall prove to be untrue in any material respect on the date
as of which made, or shall omit to state a material fact necessary to make such
representations, warranties or statements not misleading; or (c) the Borrower
shall default in the due payment of any indebtedness (direct or contingent) for
borrowed money or evidenced by a bond, debenture, note or other security or by
an agreement of guarantee or any holder of any such indebtedness of the Borrower
(or a person acting on their behalf) shall become entitled to cause any such
indebtedness to become, or any such indebtedness shall become, due prior to its
stated maturity; or (d) the Borrower shall suspend or discontinue its business,
or shall make an assignment for the benefit of, or composition with, creditors,
or shall become insolvent or unable or generally fail to pay its debts when due;
or the Borrower shall become a party or subject to any liquidation or
dissolution action or proceeding with respect to the Borrower or any bankruptcy,
reorganization, insolvency or other proceeding for the relief of financially
distressed debtors with respect to the Borrower, or a receiver, liquidator,
custodian or trustee shall be appointed for the Borrower or a substantial part
of its assets and, if any of the same shall occur involuntarily as to the
Borrower, it shall not be dismissed, stayed or discharged within 60 days; or if
any order for relief shall be entered against the Borrower under Chapter 11 of
the United States Code entitled "Bankruptcy"; or the Borrower shall take any
action to effect, or which indicates its acquiescence in any of the foregoing; -
THEN due, and in any such event, and at any time thereafter if any such event of
default shall then be continuing, the Bank may, by written notice to the
Borrower, declare the principal of, and interest on, this Note to be, whereupon
the same shall forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind.
The Borrower represents and warrants that (i) all acts,
filings, conditions and things required to be done and performed and to have
happened (including, without limitation, the obtaining of necessary governmental
approvals) precedent to the issuance of this Note to constitute this Note the
duly authorized, legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms have been done, performed and have
happened in due and strict compliance with all applicable laws; (ii) the
issuance and performance of this Note will not violate any law, rule,
regulation, order, decree, permit, agreement or instrument to which the Borrower
is a party or is subject, or result in the imposition of any lien upon any of
the Borrower's assets; and (iii) the Borrower's financial statements delivered
to the Bank in connection herewith, if any, fairly present the financial
condition and the results of operations of the Borrower as at the end of and for
the periods covered thereby and there has been no material adverse change in the
condition
(financial or otherwise) of the Borrower since the date of the last
financial statement delivered by the Borrower to the Bank.
This Note is secured:
[ ] time deposits, securities and current accounts held with the Bank
[ ] pursuant to a Security Agreement between the Bank and the
Borrower, dated,______________________
[ ] a guaranty of _____________________________,
dated ______________________.
[ ] other security, described as follows:
FIDUCIARY
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(together the collateral)
If the value of the collateral falls below [the usual or agreed upon margin]
[_____% of the aggregate principal amount of this Note] or if for any other
reasons the Bank considers that the collateral provided is no longer sufficient
to cover its claims, the Borrower shall on first demand from the Bank, reduce
the amount of indebtedness hereunder or provide additional security to the Bank
in order to reinstate the margin within the limit required by the Bank. If the
Borrower fails to comply with the Bank's request to either reduce the
indebtedness or provide additional security within the required time limit or,
due to practical or legal grounds, it is impossible for the Bank to contact the
Borrower, all of the Borrower's obligations under this Note shall immediately
become due and payable in their entirety.
In addition to any general lien, right of set-off or similar right to which the
Bank, as bankers, may be entitled by law, the Bank may at any time [after demand
has been made hereunder] and without notice to the Borrower, debit any of the
Borrower's accounts with the Bank with all or any part of the aggregate
principal amount of all sums then outstanding under this Note and all other
amounts payable by the Borrower to the Bank hereunder, all other amounts payable
by the Borrower to the Bank hereunder, notwithstanding that such debit may cause
any such account to become overdrawn or cause an existing overdraft to be
increased, and or set off or transfer any sum or sums standing to the credit of
any of the Borrower's accounts with the Bank, whether or not the same may result
in the breaking of any fixture of notice period in relation to a credit or
deposit balance, in or towards satisfaction of the Borrower's liabilities to the
Bank on any other account (whether such liability is actual or contingent,
primary or collateral, present or future, several or joint or in any other
respect; and if such liability or any part thereof is in different currency from
any credit balance against which the Bank seeks to set it off, the Bank shall be
entitled to use the currency of such credit balance for the purchase of an
amount in the currency of the liability not exceeding the amount of such
liability and also to pay out of such credit balance any additional sum which
the Bank may be required to pay for such currency and any costs in connection
with such purchase.
This Note is subject to prepayment in whole or in part without premium or
penalty except in the case of a LIBOR-based loan, prepayment of which may be
subject to premium or penalty. The Borrower (i) waives presentment, demand,
protest or notice of any kind in connection with this Note and (ii) agrees to
pay to the holder hereof, on demand, all costs and expenses (including
reasonable legal fees) incurred in connection with the enforcement and
collection of this Note. This Note shall be construed in accordance with and
governed by laws of the Cayman Islands.
The Borrower agrees that any legal action or proceeding with respect to this
Note against the Borrower may be brought in the courts of the Cayman Islands
located in the City of ▇▇▇▇▇▇ Town, Grand Cayman and that process out of said
courts may be served by mail and that such service shall be deemed effected 10
days after mailing. Nothing herein shall affect the right of the Bank to serve
process in any other manner permitted by law or to commence legal proceedings in
any other jurisdiction.
Name of Borrower:
By (signature): /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Print: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name of Borrower: INMOBILIARIA PRICESMART S.A. DE C.V.
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Title: PRESIDENT
Address: EL SALVADOR
JURISDICTION OF Incorporation/
Organization (if not an individual):
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BANCO BILBAO VIZCAYA
P.O. BOX 1115 GT-ELIZABETHAN SQUARE
GRAND CAYMAN, CAYMAN ISLANDS, B.W.I.
THIRD PARTY DEED OF CHARGE AND PLEDGE
1. I/We the undersigned PSMT CARIBE INC. charge and/or pledge by way of
first fixed charge in favor of BANCO BILBAO VIZCAYA, S.A., Grand Cayman
Branch, (hereafter referred to as "the Bank") as security for all
present and future claims arising out of my/our business relationships
with the Bank, that the Bank has or might assert against INMOBILIARIA
PRICESMART EL SALVADOR securities, negotiable instruments, savings
books, time deposits, deposit books, insurance policies, other
valuables and assets which are now or which might be, directly or
indirectly, in possession of the Bank, whether deposited against it or
whatever nature, sight and term deposits in whatever currency, metal
accounts, claims arising out of fiduciary placements or fiduciary
loans, interest in joint deposits of the Bank (together, the
"collateral"). This charge and pledge in favor of the Bank also covers
all rights and claims which it holds or shall hold in a fiduciary
capacity towards third parties.
2. This charge and pledge encompasses all subordinated rights attached to
the collateral, including, without limitation to the foregoing as
interest, dividends, subscription rights, appreciation, accruals,
bonuses, privileges, both present and future.
3. The charge and pledge of the collateral covers all the Bank's claims
including, without limitation to the foregoing, principal, accrued and
current interest, commissions, as well as all custody fees, sales
expenses and legal expenditures.
If there is more than one claim, the Bank is entitled to determine, at
its own discretion, against which claim the collateral or the proceeds
collected from its sale shall apply.
4. If the value of the collateral falls below the usual or agreed upon
margin, or if for other reasons the Bank considers that the security
provided is no longer sufficient to cover its claims, I/we will have
the obligation on first demand from the Bank, to reduce the amount of
the indebtedness or to supply additional security in order to reinstate
the margin within the prescribed time limit.
If this deadline is not met or, due to practical or legal grounds, it
is impossible for the Bank to reach me/us, the Bank's claims will
immediately become due and payable in their entirety.
5. Upon nonpayment of any claim when due, or in case the Bank deems itself
unsecured, or if a material adverse change shall occur in the financial
condition of the undersigned, or upon any proceedings being commenced
by or against the undersigned (or any of them) under any bankruptcy,
reorganization, insolvency or similar proceeding, then the Bank shall
have the right to sell, resell, assign, transfer and deliver the
collateral and shall have all of the rights and remedies of a secured
party.
6. The Bank shall not incur any liability if it does not exercise the
rights conferred upon it by this Deed or it uses them only partially.
7. All notices from the Bank shall be deemed valid given if sent to the
address last indicated by the undersigned.
8. The rights and obligations of the parties hereunder shall be governed
by, and construed in accordance with the laws of the Cayman Islands.
Any legal proceeding with respect to this Deed may be brought in the
courts of the Cayman Islands, as the Bank may elect, and the
undersigned consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by mailing a copy thereof by registered mail,
postage prepaid, to the undersigned at the address set forth below,
such notice to become effective thirty days after mailing thereof.
EXECUTED as a deed.
Place: __________________________
Date: __________________________
Signature(s): /s/ ▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇ (President) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (CFO)
PSMT CARIBE INC.
