Exhibit 10.8
MASTER CREDIT AGREEMENT
USD 25,000,000.00
DATED
BETWEEN
XXXXXXXXXX HERMANOS S.A.
BORROWER
AND
CREDIT LYONNAIS S.A.
ARRANGER
CREDIT LYONNAIS S.A.
BFG BANK AG
CREDIT LYONNAIS COPENHAGEN BRANCH
CREDIT LYONNAIS NEDERLAND
BANKS
2
CONTENTS
ARTICLE HEADING PAGE
PREAMBLE 5
ARTICLE 1 - DEFINITIONS 5
ARTICLE 2 - AMOUNT AND PURPOSE OF THE CREDITS 7
ARTICLE 3 - CONDITIONS OF ELIGIBILITY OF COMMERCIAL CONTRACTS 8
ARTICLE 4 - PROCEDURE FOR THE ADMISSION OF COMMERCIAL CONTRACTS 9
ARTICLE 5 - CONDITIONS PRECEDENT 11
ARTICLE 6 - DRAWINGS - PAYMENT INSTRUCTIONS 13
ARTICLE 7 - REPAYMENT OF PRINCIPAL 15
ARTICLE 8 - VOLUNTARY PREPAYMENT 16
ARTICLE 9 - INTEREST 17
ARTICLE 10 - INTEREST ON LATE PAYMENTS 18
ARTICLE 11 - PROMISSORY NOTES 19
ARTICLE 12 - FEES 20
ARTICLE 13 - CREDIT INSURANCE PREMIUMS 21
ARTICLE 14 - CURRENCY AND PLACE OF PAYMENT 22
ARTICLE 15 - APPLICATION OF SUMS RECEIVED BY THE BANKS 23
ARTICLE 16 - THE ARRANGER 24
ARTICLE 17 - TAXES 25
ARTICLE 18 - COSTS AND EXPENSES 26
ARTICLE 19 - REPRESENTATION, WARRANTIES AND UNDERTAKINGS 27
ARTICLE 20 - EVENTS OF DEFAULT - ACCELERATION 31
ARTICLE 21 - CHANGES IN CIRCUMSTANCES 33
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ARTICLE 22 - ASSIGNEMENT OF RIGHTS ANS OBLIGATIONS 35
ARTICLE 23 - WAIVER OF CLAIMS AND DEFENCES 36
ARTICLE 24 - COMMUNICATIONS 37
ARTICLE 25 - MISCELLANEOUS 39
ARTICLE 26 - LAW AND JURISDICTION 41
ARTICLE 27 - APPENDICES 42
ARTICLE 28 - ENTRY INTO FORCE 43
APPENDIX IA 44
FORM OF ADMISSION FORM FOR FRENCH CREDITS 44
APPENDIX IB 48
FORM OF ADMISSION FORM FOR DANISH, GERMAN, 48
AND DUTCH CREDITS 48
APPENDIX II 52
FORM OF PROMISSORY NOTE 52
APPENDIX III 53
FORM OF LETTER OF INSTRUCTIONS 53
APPENDIX IV 56
FORM OF LEGAL OPINION 56
WITH RESPECT TO THE AGREEMENT 56
APPENDIX V 59
FORM OF LEGAL OPINION 59
WITH RESPECT TO AN ADMISSION FORM 59
4
BETWEEN
- XXXXXXXXXX HERMANOS incorporated under Argentinian law, whose registered
office is at avenida Leandro L.N. Xxxx 000, 0000 XXXXXX AIRES, registered under
number 11633 Libro 85 Tomo A de estatutos de Sociedades Anonimas
represented by and by
duly authorized for that purpose,
hereinafter the "Borrower",
on the one part
- CREDIT LYONNAIS, a societe anonyme with a capital of 9 389 925 000 FRF whose
registered office is at Lyon (Rhone), 00, xxx xx xx Xxxxxxxxxx and whose central
office is at Paris 2e, 00, xxxxxxxxx xxx Xxxxxxxx, registered at the registry of
commerce and companies of Lyon under number B 954 509 741, represented by
duly authorized for that purpose, in its capacity as
arranger for the Banks, hereinafter the "Arranger", on the second part
AND
- CREDIT LYONNAIS, a societe anonyme with a capital of 9 389 925 000 FRF whose
registered office is at Lyon (Rhone), 00, xxx xx xx Xxxxxxxxxx and whose central
office is at Paris 2e, 00, xxxxxxxxx xxx Xxxxxxxx, registered at the registry of
commerce and companies of Lyon under number B 954 509 741, represented by duly
authorized for that purpose,
- BFG BANK A.G., whose registered office is at Xxxxxxx Xxxxxxxxxxx, 00 00000
Xxxxxxxxx xx Xxxx, Xxxxxxx, represented by
duly authorized for that purpose,
- CREDIT LYONNAIS COPENHAGEN, a branch of Credit Lyonnais France who's
registered office is at Xxxxxxxxxxx 00, XX-0000 Xxxxxxxxxx X, Xxxxxxx registered
in Erhvervs - og Selskabsstyrelsen no. 8413, represented by
duly authorized for that purpose.
- CREDIT LYONNAIS NEDERLAND, a branch of Credit Lyonnais France, whose
registered office is at Xxxxxx Xxxxxxxx, 0xx xxxxx, Xxxxxxxxxxxxxx 0000, 1077-ZX
Amsterdam - The Netherlands , represented by
duly authorized for that purpose.
hereinafter collectively the "Banks" and individually a "Bank",
on the third part.
5
PREAMBLE
WHEREAS
- The Borrower, the Arranger and the Banks wish to collaborate in order to
promote the financing of equipment, capital goods and/or services exported
by Danish, French, German, Italian and Dutch Suppliers to XXXXXXXXXX in
Argentina ; and
- The Banks have agreed to establish under this Master Credit Agreement the
general terms and conditions of buyer credits to facilitate the payment of
any eligible export contract denominated in FRF, DEM, DKK,ITL, NLG and/or
USD and any other currency agreed by a Bank, while the particular terms and
conditions of such buyer credits will be established in specific Admission
Forms ;
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS :
ARTICLE 1 - DEFINITIONS
The following capitalized terms used in this Agreement shall have the following
meanings (such meanings to be equally applicable to both the singular and the
plural forms of the terms defined) :
ADMISSION FORM means the document referred to in Article 4 and to be in the form
of Appendix IA or Appendix IB ;
ARGENTINA means Republic of Argentina ;
ARRANGER means CREDIT LYONNAIS S.A., 00 xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx
(Xxxxxx), in its capacity as Arranger for the Banks ;
AGREEMENT means this Master Credit Agreement, the Preamble and the Appendices as
well as, if applicable, the amendments thereto which will constitute an integral
part hereof ;
BANKING DAY means for each Credit a whole day on which banks are open for
business and domestic as well as foreign exchange transactions for the relevant
Currency are performed in the relevant city(ies) as will be defined in the
relevant Admission Form ;
COMMERCIAL CONTRACT means any contract entered into between the Buyer and a
Supplier or Suppliers for the purchase of equipment, capital goods and/or
services of Danish, French, German, Italian and Dutch origin, and duly
authorised by the Relevant Authority(ies), as well as, if applicable, the
amendments thereto ;
COUNTRY means DENMARK, FRANCE, GERMANY and THE NETHERLANDS;
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CREDIT means each credit granted by a Bank pursuant to this Agreement for the
financing, among other things, of a portion not exceeding 85 % of the price of
the Eligible Portion of a Commercial Contract ;
CURRENCY means each of DEM, DKK, FRF, ITL, NLG and USD ;
DEM means the lawful currency of GERMANY ;
DKK means the lawful currency of DENMARK ;
DRAWING means any advance made by a Bank to the Borrower under the terms and
conditions set forth in Article 6 of this Agreement and in the relevant
Admission Form ;
ELIGIBLE PORTION of a Commercial Contract means the portion of the equipment,
goods and/or services admitted for support by the Relevant Authority(ies) as
well as any other elements admitted for support by the Relevant Authority(ies)
as defined in the relevant Admission Form ;
FRF means the lawful currency of FRANCE ;
ITL means the lawful currency of ITALY;
LETTER OF INSTRUCTIONS means the letter of irrevocable instructions to be signed
by the Borrower in the form of Appendix III ;
NLG means the lawfull currency of THE NETHERLANDS ;
PROMISSORY NOTE means a promissory note in the form of Appendix II ;
RELEVANT AUTHORITY means an authority authorising any particular Credit as
defined in each Admission Form ;
SUPPLIER means the manufacturer or the seller, party to a Commercial Contract ;
USD means the lawful currency of the UNITED STATES OF AMERICA.
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ARTICLE 2 - AMOUNT AND PURPOSE OF THE CREDITS
2.1 Credits may be granted hereunder up to an aggregate amount of 25,000,000
USD (USD twenty five million) or its equivalent in other Currencies.
No Credit hereunder may be granted if the USD Amount of such Credit, added
to the aggregate USD Amount of the Credits previously granted hereunder,
would exceed USD 25,000,000.
For this Article 2.1, USD Amount means in relation to a Credit granted or
to be granted in USD, the amount in USD of such Credit, and in relation to
a Credit granted or to be granted in another Currency, the equivalent in
USD of the amount in the other currency, calculated at the offered
interbank spot rate prevailing on the foreign exchange market in the
business place of the relevant Bank, as to Credits already granted, on the
date of each relevant Admission Form and, as to Credits requested, the date
of receipt by the relevant Bank of such request.
2.2 The obligations of any Bank under this Agreement shall be several and no
rights shall arise therefrom against any other Bank. The responsibility
under a specific Admission Form shall be the sole responsibility of the
relevant bank.
2.3 For each Commercial Contract, each Credit made available to the Borrower
shall be for payment to the relevant Supplier of up to a maximum amount
equal to 85 % of the Eligible Portion of the Commercial Contract and, if
credit insurance premiums are totally or partially financed thereunder, for
payment or repayment of such credit insurance premiums.
8
ARTICLE 3 - CONDITIONS OF ELIGIBILITY OF COMMERCIAL CONTRACTS
To be eligible for financing under this Agreement, a Commercial Contract shall :
3.1 have been signed within 2 years from the signature of the Agreement and
shall be for a minimum amount of 1,200,000 USD (USD one million two hundred
thousand) or its equivalent in any other Currency,
3.2 be in conformity with the requirements of the Relevant Authority(ies),
3.3 provide for the following payment conditions :
- 15 % minimum as downpayment, whether up front or fractioned into
several payments, to be paid directly by the Buyer to the Supplier(s)
(out of which, for French and Dutch supplies only, 5% minimum to be
paid on the date of signature of the Commercial Contract ) ;
- 85 % maximum of the Eligible Portion of the Commercial Contract
financed by the Credit(s).
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ARTICLE 4 - PROCEDURE FOR THE ADMISSION OF COMMERCIAL CONTRACTS
4.1 The Borrower shall send to the relevant Bank, with copy to the Arranger, a
request for an Admission Form specifying the information required under
Article 1 of said Admission Form, as complete as possible, to enable said
Bank :
4.1.1. to satisfy itself that such Commercial Contract is eligible under
the provisions of Article 3 hereabove ; and
4.1.2. to determine if it agrees to grant the requested credit ; and
4.1.3. to obtain the necessary approvals from the Relevant
Authority(ies).
4.2 The Borrower shall afterwards procure that a copy of the Commercial
Contract and related documents be delivered to the relevant Bank and the
Arranger as soon as practicable.
After receipt of the copies of the above-mentioned documents, and upon
approval by the Relevant Authority(ies) or satisfaction of the relevant
Bank that such Commercial Contract is eligible under the rules of such
Relevant Authority(ies), if the relevant Bank agrees to grant the requested
Credit, such Bank will send to the Borrower the corresponding Admission
Form(s) in three (3) original copies drawn up in English. If not, the
relevant Bank shall as soon as practicable notify such refusal to the
Borrower.
4.3 The Admission Form shall specify, inter alia :
4.3.1 the reference number of the Admission Form,
4.3.3 the amount of the corresponding Credit,
4.3.3 the terms and conditions of the payments to be made to the
Supplier with complete details related to its account, and the
deadline date for Drawings under the Credit,
4.3.4 the term of the Credit, the number of instalments of repayment
and the starting date for repayment of the Credit,
4.3.5 the specifications applicable to interest on the Credit,
4.3.6 the amount of the credit insurance premiums related to the
Credit, if any, and
4.3.7 any other specific conditions applicable to such Credit.
4.4 A Commercial Contract may be financed through more than one Credit, if the
Suppliers are located in different Countries and if such Commercial
Contract is eligible for support from the Relevant Authority(ies) of the
relevant Countries. In such case, an Admission Form shall be signed for
each Credit.
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4.5 The Borrower will send back as soon as practicable to the relevant Bank the
3 original copies of such Admission Form duly signed. The relevant Bank and
the Arranger will sign the 3 original copies and the Arranger will send
back one (1) original copy to the Borrower and one (1) to the relevant
Bank.
4.6 By executing an Admission Form, the Borrower shall irrevocably and
unconditionally be deemed to have :
4.6.1 represented that the Agreement and the Admission Form constitute
the legal, valid and binding obligation of the Borrower and
comply with the laws and regulations in force in Argentina,
4.6.2 given irrevocable instructions to the relevant Bank to pay the
relevant Supplier and, as the case may be, to pay the credit
insurance premiums.
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ARTICLE 5 - CONDITIONS PRECEDENT
5.1 With respect to this Agreement,
The Arranger and the Banks shall in no case incur any obligation under this
Agreement and any subsequent Admission Form unless the following documents
have been received by the Arranger acting on behalf of the Banks in a form
satisfactory to the Arranger :
5.1.1 a copy, certified by a duly authorised person of the Borrower, of
the articles of incorporation and by-laws of the Borrower as
currently in force,
5.1.2 copies, certified by a duly authorised person of the Borrower, of
the decision to sign, execute and deliver this Agreement, any
Admission Form, any Promissory Note and any Letter of
Instructions,
5.1.3 the authentified specimen(s) of the signature(s) of the
representative(s) of the Borrower authorised to sign the
Agreement on behalf of the Borrower, as well as any Admission
Form, any Promissory Note and any Letter of Instructions,
5.1.4 the original copy (ies) of the power(s) of attorney of the said
representative(s),
5.1.5 an opinion of legal counsel to the Banks, in the form of Appendix
IV hereto.
The Borrower undertakes that the conditions hereabove will be fulfilled
within 30 calendar days after the signature of this Agreement.
5.2 With respect to each Admission Form and Drawings :
The Banks shall in no case make Drawings available to the Borrower, in the
terms and conditions set out in Article 6, unless the following conditions
have been fullfilled to the satisfaction of the relevant Bank :
5.2.1 Prior to the first Drawing
5.2.1.1 fulfillment of the conditions set forth under Article
5.1, and agreement of the relevant Bank to provide such
Credit as per Article 4.1 hereabove,
5.2.1.2 receipt by the relevant Bank of a certificate from the
Supplier as to the date of entry into force of the
Commercial Contract,
5.2.1.3 receipt by the relevant Bank of the Admission Form duly
executed by the Borrower, and as the case may be, of
the Letter of Instructions and the Promissory Notes
duly executed by the Borrower,
5.2.1.4 specimens of the signatures of the representatives of
the Borrower (if different from those provided under
Article 5.1.3) authorised to
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sign the Admission Form and, as the case may be, the
Letter of Instructions and the Promissory Notes,
5.2.1.5 receipt by the relevant Bank of the opinion, issued by
the legal counsel to the Banks, in the form set forth
in Appendix V hereto.
5.2.1.6 fulfillment of all other conditions stated in the
relevant Admission Form,
5.2.2 Prior to the first Drawing and to each Drawing
5.2.2.1 the delivery to the relevant Bank of the evidence that
the downpayment mentioned in Article 3.3 of this
Agreement has been paid to the Supplier in accordance
with the provisions of Article 1.8 of the relevant
Admission Form.
5.2.2.2 the issuance of the relevant credit insurance policy
and of any other approval and thereafter, the
maintenance in full force and effect of any approval,
support and credit insurance policy from the Relevant
Authority(ies).
5.2.2.3 that no event of default as per Article 20 or event
which, with the giving of notice or the lapse of time
or both, would constitute an event of default as per
Article 20, has occurred.
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ARTICLE 6 - DRAWINGS - PAYMENT INSTRUCTIONS
6.1 The Borrower hereby instructs the Banks that each Credit shall only be made
available by the relevant Bank :
6.1.1 by payments to the relevant Supplier. The Borrower shall instruct
the relevant Bank in the relevant Admission Form to pay to the
relevant Supplier on its behalf and for its account any amount
due to such Supplier, upon delivery by such Supplier to the
relevant Bank of the documents listed in Article 4.2.1 of the
relevant Admission Form and determined by the relevant Bank to be
in compliance with the terms and conditions of Article 4.2.1 of
the relevant Admission Form,
6.1.2 by payment to the Relevant Authority(ies)/to the relevant Bank.
The Borrower shall instruct the relevant Bank in the relevant
Admission Form to pay to the Relevant Authority(ies)/repay to the
relevant Bank the credit insurance premiums due to the Relevant
Authority(ies), as the case may be,
6.1.3 The present instructions, given in the joint interest of the
parties, are irrevocable. Accordingly, the Borrower expressly
acknowledges that the instructions of payment hereabove and set
out in the relevant Admission Form cannot be cancelled or
modified by the Borrower without the written consent of the
relevant Supplier and of the relevant Bank.
6.2 The payments referred to in Article 6.1 will be made, subject to the
provisions of Articles 5.2, within 15 days after the receipt by the
relevant Bank of the documents listed in the relevant Admission Form, if
found by such Bank to be satisfactory.
6.3 The relevant Bank's only responsibility for the examination of the
documents listed in Article 4.2.1 of the relevant Admission Form shall be
limited to ascertain that they appear on their face to be in accordance
with the terms and conditions thereof as defined in the Uniform Customs and
Practice for Documentary Credits (ICC number 500).
6.4 If the Credit is extended in a Currency other than the currency of the
Commercial Contract, the exchange rate applied to each Drawing shall be the
Interbank rate offered on the foreign exchange market at the time of the
day determined in Article 4.3 of the relevant Admission Form in the
business place of the relevant Bank 2 Banking Days prior to such Drawing
or, if no rate is available at such time, the next available rate.
For this Article 6.4, Interbank Rate means the rate offered to
counterparties having a similar situation for transactions of a similar
nature, for a similar amount and at the same time on the relevant market.
The exchange rate determined in this manner shall be notified by the
relevant Bank to the Borrower and shall be binding on the parties save
manifest error proven by the Borrower.
6.5 No Drawing shall be made available after the deadline date for drawing
mentioned in the relevant Admission Form.
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6.6 The minimum amount and periodicity of Drawings will be specified in each
Admission Form.
6.7 If the relevant Currency is not available on the relevant interbank foreign
exchange market, the relevant Bank shall inform the Borrower ; thereafter
the relevant Bank shall consult with the Borrower for a period of 15
Banking Days in order to find an amicable solution allowing the pursuance
of the affected Credit under the relevant Admission Form. Meanwhile, the
Borrower's right to make any further Drawing related to such Credit in the
affected Currency shall be suspended.
If no agreement is reached within such period of time or any longer period
as the relevant Bank may agree, the commitment of the Bank thus affected
under such Admission Form shall be cancelled and any amount due to the
relevant Bank under the relevant Admission Form shall immediately be paid
or repaid by the Borrower.
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ARTICLE 7 - REPAYMENT OF PRINCIPAL
The Borrower shall repay the total amount of the Drawings under each Credit in
equal, consecutive and semi-annual instalments, the number of which shall be
determined by the Relevant Authority(ies).
The first instalment will fall due 6 months after the date determined by the
Relevant Authority(ies) as the starting date of the repayment period. The
repayment terms will be those mentioned in the relevant Admission Form.
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ARTICLE 8 - VOLUNTARY PREPAYMENT
8.1 The Borrower shall be entitled upon giving to the relevant Bank and the
Arranger a prior written notice, and subject to the directives and consent
(if necessary) of the Relevant Authority(ies), to prepay on a principal
repayment date under an Admission Form, either the whole or part of such
Credit.
The prepayment may only cover an amount equal to one or more instalments of
principal or to the outstanding amount of the Credit.
8.2 The Borrower shall indemnify the relevant Bank of any loss which may result
for such Bank from the difference between any refinancing cost and the
proceeds from the placing of such amounts prepaid on the market.
8.3 If the Borrower wishes to prepay the whole or part of a Credit :
8.3.1 it shall give to the relevant Bank the notice referred to in
Article 8.1. not less than 3 months before the date of such
prepayment ;
8.3.2 within the one month period following the reception of such
notification, the relmevant Bank shall give to the Borrower in
writing, the estimated amount of the indemnity referred to in
Article 8.3. This estimation, computed on the basis of the
information available to the relevant Bank at the time of this
calculation, will be only indicative and will be given to the
Borrower subject to the evolution of said information ;
8.3.3 Within the one month period from the reception of such estimation
and in any event not later than one month before the date of such
prepayment, the Borrower will confirm or waive its request for
prepayment in writting to the Lender. In the absence of
confirmation within the one month period before the date of said
prepayment, the Borrower will be deemed to have waived its
request for prepayment. If the Borrower confirms its request,
within the above-mentioned delay, it shall be irrevocably
committed to make such prepayment and to pay on the Payment Date,
the amounts due according to paragraph 8.2. upon presentation of
a statement forwarded by the Lender 10 Banking Days before such
Payment Date.
8.4 All amounts prepaid shall be applied in accordance with the provisions of
Article 15.
8.5 No amount prepaid may be redrawn.
8.6 The Promissory Notes, if any, shall be modified in accordance with the
terms and conditions of the Letter of Instructions.
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ARTICLE 9 - INTEREST
9.1 The amounts owed by the Borrower under each Credit shall bear interest from
the day of the first Drawing until fully repaid in accordance with the
provisions of the relevant Admission Form.
In case of a fixed interest rate, it will be based on the Commercial
Interest reference Rate, fixed by the relevant authorities according to
OECD regulations and will be mentioned in each Admission Form.
In case of a floating rate, it will be based on 6 months LIBOR or interbank
offered on the Currency of the country of the relevant bank plus a margin
which will be determinated in fonction of the percentage of cover for both
political and commercial risk given by the relevant Export Credit Agency to
the relevant Lender. The proposed level of margin will be determined as
follows:
Political risk covered Commercial risk covered Margin
100% 100% 0,50%
95% 95% 0,85%
95% more than 85% and less than 95% 1,00%
95% more than 80% and equal to 85% 1,125%
95% more than 70% and equal to 80% 1,25%
equal or less than 95% more than 50% and equal to 70% 1,50%
9.2 Interest shall be calculated at the rate set out in the relevant Admission
Form on the basis of the actual number of days elapsed and a 360 day-year,
and shall be payable semi-annually in arrears in accordance with the
provisions of the relevant Admission Form.
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ARTICLE 10 - INTEREST ON LATE PAYMENTS
10.1 Without prejudice to the provisions of Article 21 and without the present
provisions in any way constituting a waiver of terms of payments, any
amount due under this Agreement, any Admission Form and/or any Promissory
Note with respect to principal and/or interest and unpaid for whatever
reason shall automatically bear interest within the limit of the law during
the period from and including the due date for payment thereof to the date
when such amount is paid, at the greater of the following two rates :
- for Currencies other than the FRF, the day to day money market rate
quoted to the Bank for the relevant Currency , or for the FRF the
arithmetic mean of the daily rates of the day to day French Interbank
money market denominated TMP (Taux Moyen Pondere) as published by
Banque de France, increased by 2% per annum ;
and
- the rate provided in the relevant Admission Form increased by 2% per
annum.
10.2 Any amount other than principal and/or interest due hereunder, under any
Admission Form and/or any Promissory Note and unpaid on its due date for
whatever reason shall automatically bear interest within the limit of the
law during the period from and including the due date for payment thereof
to the date where such amount is paid at a rate equal to :
- For Credit in FRF, the TMP increased by 2% per annum,
- For Credit in Currencies other than FRF, the day to day money market
rate quoted to the Bank for the relevant Currency increased by 2% per
annum.
10.3 Interest on late payments shall be paid on first demand to the relevant
Bank.
10.4 Interest on late payments shall be calculated on the basis of the actual
number of days elapsed divided by 360.
10.5 Interest on late payments shall itself bear interest at the above rate if
it is due for a whole year, in compliance with Article 1154 of the French
Civil Code.
10.6 The provisions hereabove shall not affect the right of the Banks to
accelerate payment of amounts due to them according to Article 20 and shall
not result in any extension of term.
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ARTICLE 11 - PROMISSORY NOTES
11.1 To the extent that Promissory Notes are required by the Relevant
Authority(ies), the Borrower shall deliver such Promissory Notes in the
form of Appendix II.
11.2 Such Promissory Notes shall evidence the obligation of the Borrower to
repay the principal of the relevant Credits as well as its obligation to
pay interest on such principal.
11.3 Such Promissory Notes shall have the legal form and effect given to them by
French Law and shall satisfy the requirements of French Law as to their
form and substance.
11.4 After full discharge of each Promissory Note, it shall be returned to the
Borrower.
11.5 The Banks and holders of these promissory notes are expressly exempted from
the need to protest the same.
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ARTICLE 12 - FEES
Unless otherwise specified in the relevant Admission Form, for each Credit the
following fees will apply :
12.1 A commitment fee is due by the Borrower to the relevant Bank. It will be
calculated at a rate of 0,50 % per annum at the beginning of each
semi-annual period on the undrawn amount of the Credit specified in the
relevant Admission Form. For German credits only , this fee will be
calculated at the rate of 0,25 %.
The first payment shall be made no later than fifteen (15) days after the
date of signature of the relevant Admission Form and thereafter, every six
(6) months from such date. Each period of less than six (6) months shall
count as a complete semi-annual period,
12.2 A flat management fee of 0,50 % is due by the Borrower to the relevant
Bank. It will be calculated on the maximum amount of the Credit specified
in the relevant Admission Form. It will be paid within fifteen (15) days of
the signature of the relevant Admission Form.
For German credits only , this fee will be calculated at the rate of 0,25%.
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ARTICLE 13 - CREDIT INSURANCE PREMIUMS
The credit insurance premiums payable as the case may be pursuant to the credit
insurance policy subscribed by the Bank in relation to any Admission Form shall
be borne as provided in the relevant Admission Form.
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ARTICLE 14 - CURRENCY AND PLACE OF PAYMENT
14.1 The Borrower shall pay all sums due to the Arranger under this Agreement in
the relevant Currency with the reference "MCA XXXXXXXXXX" to the Arranger
as mentioned in the Admission Form.
14.2 The Borrower shall pay all sums due to Banks under this Agreement, any
Admission Form and/or any Promissory Note by crediting the relevant Bank's
account specified in the relevant Admission Form.
14.3 With respect to each payment, the Borrower shall have the bank in charge of
the transfer send a telex to the relevant Bank or to the Arranger, as the
case may be, at the latest 2 Banking Days prior to the due date.
Such telex shall be sent in compliance with Article 24.
14.4 If any amount falls due on a day which is not a Banking Day, such payment
shall be made on the next succeeding Banking Day and interest and fees
shall continue to accrue accordingly, unless otherwise specified in the
relevant Admission Form.
14.5 All payments pursuant to this Agreement, any Admission Form and/or any
Promissory Note shall be made in freely available funds on or before 11.00
a.m. (local time of the place of payment) on their due date.
14.6 Should the Arranger or any Bank wish to modify the specifications set out
in Article 6 of the relevant Admission Form, relative to Articles 14.1 and
14.2 hereof, it shall notify the Borrower of the new payment instructions
at least 10 Banking Days in advance. The Borrower hereby agrees to comply
with any such new instructions.
14.7 If for any reason whatsoever, including a judgment or an arbitral award
rendered against the Borrower or the bankruptcy of the Borrower or any
proceeding having the same effect on the Borrower, (a) a payment relating
to this Agreement, any Admission Form and/or the Promissory Notes were made
to the Arranger or to a Bank or collected by the Arranger or a Bank in a
currency other than the Currency of account of the corresponding payment
obligation, and (b) if upon exchange by the Arranger or the relevant Bank
of such other currency into such Currency of account, the amount obtained
were less than the amount due, the Borrower undertakes to pay the exact
difference to the Arranger or to the relevant Bank, as the case may be, at
its first demand.
14.8 Payment shall fully discharge the Borrower only if it is made in conformity
with this Article 14.
23
ARTICLE 15 - APPLICATION OF SUMS RECEIVED BY THE BANKS
All payments received by the Arranger or any Bank for any reason whatsoever with
respect to this Agreement, any Admission Form and/or any Promissory Note shall
be applied by the Arranger or the relevant Bank, as the case may be, unless the
Arranger or the relevant Bank, as the case may be, decides otherwise :
15.1 First, to the payment of any overdue amounts in the chronological order in
which such amounts initially fell due.
15.2 If no amounts are overdue or if the overdue amounts have been paid as
indicated above, to the prepayment of the outstanding amounts owing under
the Agreement, any Admission Form and/or any Promissory Note in the reverse
order of their maturities, the amount of interest payable being accordingly
recalculated.
24
ARTICLE 16 - THE ARRANGER
16.1 Each of the Banks hereby irrevocably appoints CREDIT LYONNAIS S.A. as its
Arranger to exercise such rights and obligations as are specifically
delegated to the Arranger as per Article 16.2 hereof.
16.2 The obligations and rights of the Arranger shall be the following :
16.2.1 the Arranger shall verify on behalf and for the account of the
Banks the fulfillment of the Conditions Precedent set forth in
Article 5.1 ;
16.2.2 the Arranger shall verify the compliance of the proposed
financial conditions with the terms and conditions of the
Agreement ;
16.2.3 the Arranger shall assist each relevant Bank in the preparation
of and sign each Admission Form ; however, the Arranger shall not
be responsible in any manner for the Bank's final decision to
grant or not the Credit, and shall not be subject to the
disbursement obligations falling on such Bank under such
Admission Form ;
16.2.4 the Arranger shall assist the Banks in the implementation of this
Agreement ;
16.2.5 the Arranger shall keep a register of the Credits granted under
this Agreement and shall notify the Borrower and the Banks when
the maximum total amount of Credits as per Article 2.1 has been
reached ; such notification shall be binding on the Borrower and
the Banks ;
16.2.6 the Arranger shall as soon as possible give notice to the
Borrower or to the relevant Bank(s) of any advice, notification,
or note received from the Borrower or the Bank(s) and vice versa;
16.2.7 with respect to its own Credits, the Arranger shall have the same
rights and powers under this Agreement, any Admission Form and
any Promissory Note as any other Bank and may exercise the same
as though it were not performing the obligations and rights
delegated to it under this Article 16 ;
16.2.8 the Arranger may accept deposits from, lend money to, and
generally engage in any kind of banking business with the
Borrower, or any of its subsidiaries, or any of the Banks, as if
it were not the Arranger ;
25
ARTICLE 17 - TAXES
17.1 All taxes, duties or other fiscal charges including without limitation all
stamp duties and registration fees which may be due in relation to the
signature, execution, delivery, performance and/or termination of this
Agreement, any Admission Form, any Promissory Note and/or any other related
document shall be for the account of the Borrower.
17.2 The Borrower hereby agrees that all payments made by it pursuant to this
Agreement, any Admission Form, any Promissory Note and/or any other related
document shall be made free and clear of all taxes and duties and without
deduction or withholding for or on account of any taxes or duties.
If any payment by the Borrower were reduced by any taxes, duties, fiscal
charges or withholdings, the Borrower shall pay to the Arranger and/or to
any concerned Bank such additional amounts as may be necessary to ensure
that, after payment of such taxes, duties and/or withholdings or payment of
fiscal charges, the Arranger and/or the relevant Bank(s) receives in the
relevant Currency an amount equal to the full amount which they would
otherwise have received, had no such taxes, duties, fiscal charges or
withholdings been made.
17.3 Without prejudice to the provisions of Article 17,1 and 17,2 and in case of
countries having a treaty with Argentina in order to avoid the double
taxation, the Borrower and the Bank(s) will take the reasonnable steps in
order to take into consideration the implications of such treaty(ies).
26
ARTICLE 18 - COSTS AND EXPENSES
The Borrower shall pay directly or reimburse to the Arranger or to the relevant
Bank on first demand all costs, expenses and fees incurred by the Arranger
and/or such Bank (including travel and accomodation expenses, translation
expenses, postage and telecommunication expenses and legal, consultant and
expert costs and fees) as well as any taxes arising therefrom resulting from :
18.1 the preparation, negotiation, signature, execution and delivery of this
Agreement, any Admission Form, any Promissory Note, any Letter of
Instructions, any legal opinion and any other related document ;
18.2 any modification to this Agreement, any Admission Form, any Promissory
Note, any Letter of Instructions, any legal opinion and any other related
document ;
18.3 (a) the preservation by the Arranger and/or any Bank of their rights under
this Agreement, any Admission Form, any Promissory Note, any Letter of
Instructions and any other related document, (b) any failure by the
Borrower to perform any obligation undertaken by it in or pursuant to this
Agreement, any Promissory Note, any Letter of Instructions and any other
related document, (c) the acceleration of any payment due hereunder, under
any Admission Form and/or any Promissory Note and (d) the collection by the
Arranger and/or any Bank of any amount due to them under this Agreement,
any Admission Form and/or any Promissory Note.
27
ARTICLE 19 - REPRESENTATION, WARRANTIES AND UNDERTAKINGS
19.1 Representations and warranties of the Borrower
The Borrower hereby represents and warrants that :
19.1.1 it is a corporation duly organized and validly existing under the
laws of Argentina as a " ;
19.1.2 it has full power and authority to carry on its business as it is
now being conducted and especially to incur indebtedness as
provided in this Agreement, any Admission Form and any Promissory
Note, execute the Agreement, any Admission Form, any Promissory
Note and any Letter of Instructions and to perform all their
terms and conditions ;
19.1.3 in accordance with the laws of Argentina and the Borrower's
articles of incorporation and by-laws, the decision to incur
indebtedness and to enter into this Agreement has been validly
taken on June 27th, 1997 by Acta de Directorio, and M. Xxxxxxx
XXXXXXXXXX has been validly authorised to sign the Agreement, any
Admission Form, any Letter of Instructions and any Promissory
Note and to perform all their terms and conditions ;
19.1.4 it is not necessary to take any legal action and to obtain from
the competent authorities of Argentina, any approval necessary
with respect to the laws of Argentina for the validity of the
Agreement, any Admission Form, any Letter of Instructions and any
Promissory Note and authorising their execution and performance
especially with respect to foreign exchange regulations, the
right to acquire and transfer the amounts in Currencies necessary
for the Borrower to pay any and all amounts owed under the
Agreement, any Admission Form and any Promissory Note whether on
their due dates or in the event of acceleration ;
19.1.5 the Agreement, any Admission Form, any Letter of Instructions and
any Promissory Note when signed shall be in proper legal form and
constitute and shall constitute the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their terms until full payment of all sums due ;
19.1.6 the decision to incur indebtedness, the execution of the
Agreement, any Promissory Note and any Letter of Instructions and
the performance by the Borrower of the obligations resulting
therefrom do not and shall not result in any breach or violation
of, or constitute a default under, the Borrower's articles of
incorporation and by-laws or any agreement binding on it or to
which it is a party, or public order provision, laws or
regulations applicable to the Borrower ;
19.1.7 it has good and valid title to its property ;
28
19.1.8 the rights of the Banks arising from this Agreement, any
Admission Form and any Promissory Note rank and will rank at
least pari passu with all other unsecured and unsubordinated
indebtedness of the Borrower ;
19.1.9 it is not in breach of any of its obligations and is not in
default under any agreement to which it is a party ;
19.1.10 there are no litigations or judicial, arbitration or
administrative proceedings pending or to its knowledge
threatened, which might forbid the signature of the Agreement or
of any Admission Form, threaten the good performance of its
obligations under this Agreement, any Admission Form, any Letter
of Instructions, and/or any Promissory Note or adversely affect
its activities, its property or its financial condition ;
19.1.11 no tax, duty, withholding nor other fiscal payment are levied in
Argentina with respect to the Agreement, any Admission Form, any
Letter of Instructions and/or any Promissory Note ;
19.1.12 it is not necessary in order to ensure (a) the legality,
validity, enforceability or (b) the admissibility in evidence in
a court in Argentina and to obtain the performance of this
Agreement, any Admission Form, Promissory Note and/or Letter of
Instructions or payment hereunder and/or thereunder, that any of
them be stamped or registered or any duty paid or any
authorisation obtained in Argentina ;
19.1.13 the Agreement needs not to be registered with any authority in
Argentina ;
19.1.14 any information supplied by the Borrower to the Arranger and/or
to any Bank in connection with this Agreement is accurate and
complete and the Borrower is not aware of any other information
not disclosed to the Banks, the disclosure of which might have
changed the decision of the Banks to enter into this Agreement ;
19.1.15 the financial statements delivered to the Arranger are complete
and correct, comply with the Argentinian legal requirements and
present a true and fair view of the financial condition of the
Borrower and the results of its operation in accordance with
generally accepted accounting principles in Argentina ;
19.1.16 it has no right of immunity either from jurisdiction or from
execution ;
19.1.17 this Agreement, any Admission Form, any Letter of Instructions,
and any Promissory Note constitute or shall, if and when signed,
constitute commercial acts ;
19.1.18 it has validly chosen French law to govern its obligations under
this Agreement, any Admission Form, any Letter of Instructions
and any Promissory Note ;
29
19.1.19 it has validly submitted hereunder to the non-exclusive
jurisdiction of an arbitration court organized under the Rules of
Conciliation and Arbitration of the International Chamber of
Commerce ;
All of the representations made by the Borrower above shall be deemed
repeated until all sums which may be owed by the Borrower pursuant to this
Agreement, any Admission Form and/or any Promissory Note have been paid or
repaid to the Banks in full.
19.2 Undertakings of the Borrower
o The Borrower hereby undertakes that, until all sums which may be owed by
the Borrower pursuant to this Agreement, any Admission Form and/or any
Promissory Note have been paid or repaid in full, it shall :
19.2.1 maintain its corporate existence and full power and authority to
carry on its business ;
19.2.2 not cause or suffer any change in its corporate name, form, in
the repartition of its shareholding, the nature of its business,
its purpose or in the location of its registered office ;
19.2.3 comply with all laws and regulations the non-compliance to which
could directly or indirectly adversely affect the performance of
its obligations under the Agreement, any Admission Form, any
Promissory Note, and/or any Letter of Instructions ;
19.2.4 obtain and renew all authorizations required in order for the
Borrower to perform its obligations under the Agreement, any
Admission Form, any Promissory Note, and/or any Letter of
Instructions ;
19.2.5 maintain the goods covered by any Commercial Contract financed
hereunder in good working order and insure then with financially
sound and reputable insurers for risks and amounts of indemnities
including for the environmental risk corresponding to the nature
of the business of the Buyer in accordance with usual
international practice ;
19.2.6 agree that, upon request of the Relevant Authorities and/or the
Bank(s), the Bank(s) will receive an encumbrance on the assets
purchased under the Commercial Contract;
19.2.7 not guarantee either as guarantor, surety or "avaliste" the
obligations of any third party ;
19.2.8 not modify any provision of any Commercial Contract, especially
concerning the parties thereto, the purpose, the price, the terms
of payment, the delivery dates of the goods or the performance
dates of the services or generally any provision of such
Commercial Contract which may affect the terms and conditions of
this Agreement and/or the relevant Admission Form ;
30
19.2.9 advise without delay the Arranger :
19.2.9.1 upon its occurence, of any event which constitutes or
could constitute one of the events set forth in Article
20 ;
19.2.9.2 of any undertaking to pay, to do or not do the breach
of which may cause acceleration of the concerned debt ;
19.2.9.3 of any circumstance which may affect the importance or
the value of its property or increase substantially the
volume of its liabilities ; and
19.2.9.4 generally of any circumstance which may adversely
affect the performance of this Agreement, any Admission
Form, any Promissory Note, and/or any Letter of
Instructions ;
19.2.10 send to the Arranger :
19.2.10.1 as soon as the same are available, copies of its
audited consolidated profit and loss account for each
financial year and its audited balance sheet at the end
of its financial year, in each case audited by the
auditors for the time being of the Borrower, together
with the opinion of such auditors thereon, prepared in
compliance with Argentinian legal requirements and in
accordance with generally accepted accounting
principles in Argentina. The Borrower shall also
provide the Arranger with any such information or
financial document as the Arranger may from time to
time reasonably request ;
19.2.10.2 any modification of its articles of incorporation
and/or by-laws as well as any other corporate documents
as the Arranger may from time to time reasonably
request ;
19.2.10.3 promptly, and not later than 30 days after the payment
of any tax duty or fiscal charge mentioned at Article
17.2, the receipt of such payment, or a certified true
copy thereof.
19.2.11 send to the relevant Bank on first demand, supplementary sets of
Promissory Notes if it appears at any time that the number of
sets provided for in the relevant Admission Form is not
sufficient.
31
ARTICLE 20 - EVENTS OF DEFAULT - ACCELERATION
20.1 Each of the following circumstances shall constitute an event of default :
20.1.1 the Borrower fails to pay when due any sum payable under this
Agreement, any Admission Form and/or any Promissory Note ;
20.1.2 any representation, warranty or statement made by the Borrower or
statement or certificate remitted under this Agreement or under
any Admission Form, or any document delivered to any Bank in
connection with this Agreement or any Admission Form proves to be
untrue, incomplete or misleading ;
20.1.3 the Borrower fails to perform or comply with any of its other
obligations or undertakings arising from this Agreement, any
Admission Form, any Promissory Note and/or any Letter of
Instructions ;
20.1.4 the Borrower fails to (a) pay when due any indebtedness arising
from any other agreement, even entered into with a third party,
or (b) comply with any of its obligations under any such
agreement, thereby entitling the creditor to accelerate the
maturity of the debt ;
20.1.5 the financial condition of the Borrower deteriorates
significantly or any event makes it difficult for the Borrower to
perform and comply with its obligations under this Agreement, any
Admission Form and/or any Promissory Note ;
20.1.6 a legal or factual event occurs such as a general moratorium, a
nationalization, a natural catastrophe, or any general or special
action is taken in the country of the Borrower or in a third
country through which payments are to be made (a) which impedes
or threatens to impede the payment by the Borrower of any sum
owed under the Agreement, any Admission Form and/or any
Promissory Note, (b) or may have a material adverse effect on the
business, the assets or the economical or financial condition of
the Borrower ;
20.1.7 the Borrower :
20.1.7.1 cannot cover its liabilities with its available assets
or suspends all or part of its payments ;
20.1.7.2 requests or has an administrator, receiver, custodian
or similar officer, whether private or judicial,
appointed to it or any of its properties ;
20.1.7.3 commences any negotiations with any one or more of its
creditors with a view to the rescheduling or
readjustment of its indebtedness ;
20.1.7.4 commences or is the subject of any proceedings for non
judicial settlement or judicial recovery ;
32
20.1.7.5 is involved in a non judicial or a judicial liquidation
; or
20.1.7.6 more generally, requests the application of any other
action or proceeding for any other relief under any law
affecting creditor's rights that is similar to
bankruptcy law or is subjected thereto ;
20.1.8 any Commercial Contract financed hereunder is suspended,
interrupted, cancelled or terminated ;
20.2 Should any of these events of default occur then each Bank shall be
entitled without any other formality to suspend or terminate in whole or in
part its participation in this Agreement and to declare all sums due to it
thereunder, under any Admission Form and/or Promissory Note by the Borrower
to be immediately due and payable together with all interest accrued
thereon and any consequent cost, loss and expense (including without
limitation redeployment compensation determined in accordance with Article
8.2) whereupon the same shall be immediately due and payable.
20.3 Nevertheless in the case provided for in Article 20.1.8 above, the
interruption of this Agreement and the immediate repayment would apply only
to the Credit corresponding to the Commercial Contract suspended,
interrupted, cancelled, rescinded or terminated.
20.4 Any notice under this Article shall be sent to the Borrower in compliance
with the provisions of Article 24 without any other formality or legal
procedure.
33
ARTICLE 21 - CHANGES IN CIRCUMSTANCES
21.1 This Agreement has been agreed on the basis of the economic and financial
conditions as well as the legal, tax and monetary environment prevailing at
the date hereof internationally and in the countries of the Borrower and of
the Banks.
21.2 Illegality
If by reason of any new legislative or regulatory provision, any amendment
thereto or any change in the interpretation thereof by an administrative or
judicial authority, it becomes unlawful or impossible for any Bank to
maintain its participation in this Agreement, and/or any Admission Form :
21.2.1 the relevant Bank(s) shall immediately notify the Borrower
thereof. No Drawings shall be made under Credits granted by such
Bank(s) as of the notice(s) to the Borrower ;
21.2.2 the Borrower, the relevant Bank(s) and the Arranger shall
negotiate with a view to agreeing upon terms to allow the
Agreement and/or the relevant Admission Form(s) to continue to be
performed ;
21.2.3 if the parties are unable to agree within 30 days following
dispatch by the relevant Bank(s) of the notice referred to above,
such Bank(s) shall notify the Borrower that its/their obligations
under this Agreement and/or any Admission Form(s) have terminated
and shall request the immediate repayment of all sums owing by
the Borrower to the relevant Bank(s) under this Agreement, any
Admission Form and/or any Promissory Note increased by any
additional costs incurred by such Bank(s) as a result of the
changed circumstances.
21.3 Additional costs
o If by reason of a new legislative or regulatory provision or of any
amendment thereto or any change in the interpretation thereof by an
administrative or judicial authority, any Bank becomes subject to any tax,
monetary, financial or banking measure resulting in an increased charge
with respect to its participation in this Agreement and/or any Admission
Form (including but not limited to reserve requirements, capital adequacy,
liquidity or other ratios or any tax, duty or other charge except income
tax), and if as a result thereof the effective return for such Bank under
this Agreement and/or any Admission Form is reduced, or if such reduction
results from a judgment, the following shall apply :
21.3.1 The relevant Bank(s) shall immediately notify the Borrower
thereof. No Drawing shall be made under Credits granted by such
Bank(s) as of the notice to the Borrower ;
21.3.2 The Borrower may :
(a) request that the relevant Bank(s) maintain its/their
participation(s) in the Credit(s) by expressly agreeing
to pay the additional cost resulting from
34
its/their participation(s) or the reduction in return
under this Agreement and/or any Admission Form ; or
(b) immediately repay to the relevant Bank(s) all sums owed
hereunder increased by any costs incurred by such
Bank(s) as a result of the change in circumstances and
any treasury costs calculated in accordance with
Article 8.2.
35
ARTICLE 22 - ASSIGNEMENT OF RIGHTS ANS OBLIGATIONS
22.1 The Borrower may not assign its rights or obligations under this Agreement
and/or any Admission Form either in whole or in part without the prior
written consent of the Banks.
22.2 With the prior written consent of the Arranger, each of the Banks shall be
entitled to assign its rights under or in connection with this Agreement,
any Admission Form and/or as the case may be any Promissory Note in whole
or in part to third parties.
In this event all provisions of this Agreement, the Admission Form and as
the case may be the Promissory Notes shall enure to the benefit of such
assignee.
36
ARTICLE 23 - WAIVER OF CLAIMS AND DEFENCES
23.1 The Borrower hereby acknowledges that it shall not be entitled to refuse or
to postpone performance of any payment or other obligation under this
Agreement, any Admission Form or any Promissory Note by reason of any claim
which it may have or may consider that it has against the Arranger or any
Bank under or in connection with this Agreement, any Admission Form or
under any other agreement or for any other reason whatsoever.
23.2 The Borrower hereby acknowledges that its liability to pay in full all
amounts payable under this Agreement, any Admission Form and any Promissory
Note on the due date for payment thereof is in no way conditional upon
performance by any Supplier of any Contract or of any agreement related
thereto and shall not be affected in any way by reason of any claim or
defence which the Borrower may have or may consider that it or any Buyer
has against any Supplier.
23.3 All payments to be made to the Arranger and/or any Bank hereunder, under
any Admission Form and/or any Promissory Note shall be made without any
set-off or counterclaim.
37
ARTICLE 24 - COMMUNICATIONS
24.1 All communications between the Borrower, each of the Banks and the Arranger
shall be made by telex with a key number or coded, telecopy confirmed by
letter, international courrier service, registered mail with acknowledgment
of receipt or personal delivery against receipt at the following addresses:
- To the Borrower
Mailing Address : XXXXXXXXXX HERMANOS S.A.
Avenida Leandro L.N. Xxxx 000
0000 XXXXXX XXXXX, XXXXXXXXX
To the attention of Xxxxxxx XXXXXXXXXX
Phone number 00 0 000 00 00
telecopy : 54 1 313 68 22
- To the Arranger
Mailing Address : CREDIT LYONNAIS S.A.
IFAP / Multisourcing Trade Finance
0, xxx xxx Xxxxxxxx
00000 XXXXX - Xxxxxx
To the attention of Xxx Xxxxx-Xx XXXXXX
telecopy : (00 0) 00 00 00 00
- To the Banks
1) CREDIT LYONNAIS S.A.
Mailing Address : IFAP / MTC
0, xxx xxx Xxxxxxxx
00000 XXXXX - Xxxxxx
telecopy : (00 0) 00 00 00 00
2) BfG BANK AG
Mailing Address : Mainzer Xxxxxxxxxxx 00
00000 Xxxxxxxxx xx Xxxx Xxxxxxx
To the attention of Xx. Xxxxx NEUERER
telecopy : (00) 00 000 00 00
38
3) CREDIT LYONNAIS COPENHAGEN Branch
Mailing Address : Xxxxxxxxxxx 00
XX 0000 XXXXXXXXXX
XXXXXXX
To the attention of Xx Xxxx X. Xxxxxxxx
telex : 27292
telecopy : (45 33) 93 47 74
4) CREDIT LYONNAIS NEDERLAND
Mailing Address : Xxxxxx Xxxxxxxx, 0xx xxxxx
Xxxxxxxxxxxxxx 0000
1077 ZX AMSTERDAM - NETHERLANDS
To the attention of Xxx XXXXXXXX
telecopy : (00 00) 000 00 00
Any change in the foregoing addresses shall be notified in accordance with
this Article.
24.2 Any communication made in accordance with Article 24.1. shall take effect
on the date of reception of such notification by its addressee.
24.3 All communications shall be made in English.
39
ARTICLE 25 - MISCELLANEOUS
25.1 Remedies and waiver
No failure on the part of the Arranger and/or any of the Banks to exercise,
and no delay on their part in exercising any right or remedy under this
Agreement, any Admission Form or any Promissory Note or in connection
herewith or therewith will operate as a waiver thereof, nor will any single
or partial exercise of any right or remedy preclude any other or further
exercise thereof or the exercise of any other rights or remedies.
25.2 Partial invalidity
25.2.1 The invalidity or unenforceability of any provision of this
Agreement, any Admission Form, any Letter of Instructions or any
Promissory Note before any jurisdiction shall not affect its
legality, validity or enforceability before any other
jurisdiction, nor the legality, validity or enforceability of any
other provision of this Agreement, any Admission Form, any Letter
of Instructions or any Promissory Note.
25.2.2 Any provision which may prove to be or becomes null or
unenforceable in whole or in part shall be to the fullest extent
possible replaced by a provision as similar as possible in
accordance with the spirit and purpose of this Agreement and/or
the relevant Admission Form.
25.3 Set-off authorized
The Borrower authorises the Arranger and each Bank to apply the credit
balance on any account that the Borrower may have in the books of the
Arranger or such Bank to the reimbursement of any sum owed to the Arranger
or such Bank under this Agreement, any Admission Form and/or any Promissory
Note.
25.4 Binding statements
All statements or other documents prepared by the Arranger or by any Bank
hereunder or under any Admission Form with respect to amounts owed by the
Borrower to the Arranger and/or any Bank shall be binding on the Borrower
save for manifest error.
25.5 Amendments
Any amendment to this Agreement must be made in writing by the parties
hereto.
25.6 Appendices
The Appendices to this Agreement constitute an integral part thereof.
40
25.7 Language
25.7.1 The language of this Agreement and its Appendices as well as all
correspondence relating thereto shall be in English. If a
translation were necessary only the English would be valid ;
25.7.2 When the documents, authorisations or other which must be
delivered to the Arranger or to any Bank hereunder or under any
Admission Form are not in English, these documents must be
accompanied by a translation into English by a sworn translator,
if the addressee so requests.
25.8 Entire Agreement
As of the execution hereof, this Agreement represents the entire agreement
of the parties and consequently cancels and replaces all previous documents
which might have been exchanged or communicated during the negotiation of
this Agreement.
41
ARTICLE 26 - LAW AND JURISDICTION
26.1 This Agreement, the Admission Forms and the Promissory Notes shall be
governed by and construed in accordance with the laws of France.
26.2 Any dispute arising out of or in connection with this Agreement, any
Admission Form and/or any Promissory Note including disputes concerning
their validity shall be finally settled according to the Rules of
Conciliation and Arbitration of the International Chamber of Commerce by
three (3) arbitrators appointed pursuant to these rules. The arbitration
shall take place in Paris and be conducted in English.
26.3 Notwithstanding the provisions of Article 26.2 above, the Borrower hereby
irrevocably accepts that the Arranger and/or any of the Banks start any
proceeding against the Borrower with respect to the Agreement, any
Admission Form and/or any Promissory Note, (a) in the competent court in
Argentina or (b) in any other jurisdiction where assets of the Borrower are
located.
42
ARTICLE 27 - APPENDICES
The following Appendices shall form an integral part of the present Agreement :
- Appendix IA : Form of Admission Form for French Credits
- Appendix IB : Form of Admission Form for Danish, German, and Dutch Credits
- Appendix II : Form of Promissory Note
- Appendix III : Form of Letter of Instructions
- Appendix IV : Form of Legal Opinion with respect to the Agreement
- Appendix V : Form of Legal Opinion with respect to each Admission Form
43
ARTICLE 28 - ENTRY INTO FORCE
This Agreement shall come into force on the date of its signature.
Made in Paris
on August 8th, 1997
in six original copies
The Borrower The Arranger
XXXXXXXXXX CREDIT LYONNAIS S.A.
By : /s/ Xxxxxxx Xxxxxxxxxx By : /s/ Xxxxx Cuomentowski
Name : Xxxxxxx Xxxxxxxxxx Name : Xxxxx Cuomentowski
Title : President Title :
The Banks
CREDIT LYONNAIS S.A. BfG BANK AG
By : /s/ Xxxxx Cuomentowski By : /s/ Xxxxx Cuomentowski
Name : Xxxxx Cuomentowski Name : Xxxxx Cuomentowski
Title : Title :
CREDIT LYONNAIS CREDIT LYONNAIS
COPENHAGEN BRANCH NEDERLAND
By : /s/ Xxxxx Cuomentowski By : /s/ Xxxxx Cuomentowski
Name : Xxxxx Cuomentowski Name : Xxxxx Cuomentowski
Title : Title :
00
XXXXXXXX XX
FORM OF ADMISSION FORM FOR FRENCH CREDITS
-----------------------------------
ADMISSION FORM No. ...
Pursuant to the Master Credit Agreement (hereinafter called the "Agreement")
signed on __________ between 1) XXXXXXXXXX HERMANOS S.A. as Borrower, 2)
CREDIT LYONNAIS S.A. as Arranger and 3) CREDIT LYONNAIS S.A., hereinafter
called the "Bank", it is hereby understood and agreed as follows :
Except as otherwise defined herein, all terms and expressions defined in the
Agreement shall have the same meaning in this Admission Form.
The relations between the Borrower, the Arranger and the Bank are determined by
the provisions of the Agreement completed by the specific provisions of this
Admission Form.
Since this Admission Form constitutes an integral part of the Agreement, none of
its terms and conditions may be interpreted without strict reference to the
terms and conditions of the Agreement.
1. Characteristics of the Commercial Contract
1.1 Name and address of the Supplier :
1.2 Date of signing of the Commercial Contract :
1.3 Conditions of coming into force of the Commercial Contract :
1.4 Amount of the Commercial Contract :
- Currency :
- Total amount :
- Amount of the Eligible Portion :
1.5 Purpose :
1.6 Contractual time schedule (from the entry into force) :
1.7 Contractual Payment conditions:
- Downpayments : ___ % i.e. __________
- Balance: ___% i.e. __________ to be paid by Drawings
under the Credit pursuant to the Agreement and the present
Admission Form.
45
2. Relevant Authorities means COFACE (Compagnie Francaise d'Assurance pour le
Commerce Exterieur).
3. Credit Insurance Premiums
3.1 Due to : COFACE
3.2 Terms of payment :
3.2.1 Borrower's cash payment
or
Payment through utilisation of the Credit increased by
the Bank for this purpose
3.2.2 In one payment prior to the first Drawing (for credits
inferior to a 3 years duration)
or
In several payments concomitantly and prorata to each
Drawing
3.3 Amount :
4. Characteristics of the Credit :
4.1 Currency of the Credit :
4.2 Maximum amount of the Credit :
The Borrower gives to the Bank irrevocable instructions to pay
up to a maximum amount of (Currency) ___________ as follows :
4.2.1 to the Supplier a maximum amount of (Currency)_______
(i.e. 85 % of the Eligible Portion) against
presentation of a copy of the following documents :
- ________________
- ________________
- ________________
4.2.2 to the Bank itself the credit insurance premiums due to
COFACE and amounting to (Currency) ___________
4.3 Time of determination of the exchange rate : 11 a.m. (Paris time)
4.4 Duration of the Credit :
4.5 Starting date(s) of the Repayment Period :
4.6 Number of instalments :
46
4.7 Interest rate : _______% p.a.
Interest shall be payable on a Payment Date and shall be
calculated on the amount of the Credit on the basis of a 360-day
year and the number of actual days elapsed during each Interest
Period.
4.8 Preliminary Period, if any, means the period beginning on the
date of the first Drawing and ending on the starting date of the
Repayment Period.
Repayment Period means the period beginning on the starting
date(s) of the Repayment Period and ending on the last Payment
Date.
Payment Date means the starting date of the Repayment Period and
any date calculated semi-annually (6 months by 6 months) :
- forwards from this date up to the end of the Repayment Period
and,
- backwards from this date up to the date of the first Drawing,
(in the case of a Preliminary Period).
Interest Period means any period commencing on (and including) a
Payment Date and ending on (and excluding) the next.
However, in respect of each Drawing, the first Interest Period
shall commence on (and include) the date of the said Drawing and
end on (and exclude) the next Payment Date.
4.9 Deadline date for Drawings :
4.10 the Bank reserves the right to refuse more than _____ Drawing(s)
per month and for an amount of less than _____ except for the
last Drawing.
4.11 Fees :
4.12 Cities taken into account for the determination of Banking Days :
4.13 As per Article 16.2.3 of the Agreement, the Arranger is not
subject to the disbursement obligations falling on the Bank under
this Admission Form.
5. Representations and warranties
5.1 The representations and warranties made by the Borrower under
Article 19 of the Agreement are reiterated by the Borrower as of
the date of signature of this Admission Form.
5.2 The Borrower warrants that :
5.2.1 no stipulations of this Admission Form are contrary to
public policy in Argentina,
47
5.2.2 The Contract as well as the Admission Form are in
strict conformity with the Argentinian regulation of
importation and transfer of funds, at the date of this
Admission Form, and that all administrative
requirements concerning the importation of goods,
equipments and/or services and the transfer of funds
for repayment have been complied with,
6. Place of Payment
All payments to the Arranger hereunder and under the Agreement shall be
effected by crediting the Bank's account no._________________________
with the following reference : "IFAP/MTC/FDC 5/MCA Xxxxxxxxxx XX
no.__".
All payments to the Bank hereunder and under the Agreement shall be effected
by crediting the Bank's account no._________________________ with the
following reference : "IFAP/MTC/FDC 5/MCA Xxxxxxxxxx XX no. __".
7. List of documents to be sent with this Admission Form as condition
precedent
- A letter containing a joint interest mandate from the Borrower to the
Bank as per Appendix III of the Agreement,
- (...) set(s) of (...) Promissory Note as per Appendix II of the
Agreement,
- A legal opinion in the terms of Appendix V of the Agreement,
- Any other document required by the Bank and the Relevant
Authority(ies).
8. Entry into force
This Admission Form shall become effective on the date of its signature.
Made in _____________
On _________________
(in three original copies)
The Borrower The Arranger
By By
Name Name
Title Title
The Bank
By
Name
Title
(Signatures)
48
APPENDIX IB
FORM OF ADMISSION FORM FOR DANISH, GERMAN,
AND DUTCH CREDITS
--------------------
ADMISSION FORM No. ...
Pursuant to the Master Credit Agreement (hereinafter called the "Agreement")
signed on _________ between 1) XXXXXXXXXX HERMANOS S.A. as Borrower, 2) CREDIT
LYONNAIS S.A. as Arranger and 3) several banks including _______________,
hereinafter called the "Bank", it is hereby understood and agreed as follows :
Except as otherwise defined herein, all terms and expressions defined in the
Agreement shall have the same meaning in this Admission Form.
The relations between the Borrower, the Arranger and the Bank are determined by
the provisions of the Agreement completed by the specific provisions of this
Admission Form.
Since this Admission Form constitutes an integral part of the Agreement, none of
its terms and conditions may be interpreted without strict reference to the
terms and conditions of the Agreement.
1. Characteristics of the Commercial Contract
1.1 Name and address of the Supplier :
1.2 Date of signing of the Commercial Contract :
1.3 Conditions of coming into force of the Commercial Contract :
1.4 Amount of the Commercial Contract :
- Currency :
- Total amount :
- Amount of the Eligible Portion :
1.5 Purpose :
1.6 Contractual time schedule :
1.7 Contractual Payment conditions :
- Downpayments :______ % i.e. ___________
- Balance :_____ % i.e. ________ to be paid by Drawings under
the Credit pursuant to the Agreement and the present Admission
Form.
49
2. Relevant Authorities :
3. Credit Insurance Premiums
3.1 Due to :
3.2 Terms of payment :
Borrower's cash payment
or
Supplier's cash payment
or
Financing by the Bank by increasing the principal amount of the
Credit hereunder
or
Financing by the Bank by increasing the interest rate of the
Credit hereunder
3.3 Amount or percentage :
4. Characteristics of the Credit
4.1 Currency of the Credit :
4.2 Maximum amount of the Credit : The Borrower gives to the Bank
irrevocable instructions to pay up to a maximum amount of
(Currency)_________________as follows :
4.2.1 to the Supplier a maximum amount of (Currency) _______
against presentation of a copy of the following
documents :
- ________________
- ________________
- ________________
4.2.2 to the Relevant Authority(ies)/to the Bank itself the
credit insurance premiums due to __________ and
amounting to (Currency) ______________
4.3 Time of determination of the exchange rate :
4.4 Duration of the Credit :
4.5 Starting date(s) of the repayment period :
4.6 Number of instalments :
4.7 Interest rate :
4.8 Payment dates :
50
4.9 Deadline date for Drawings :
4.10 the Bank reserves the right to refuse more than ... Drawing(s)
per month and for an amount of less than _________ except for the
last Drawing.
4.11 Fees if different from Article 12 of the Agreement :
4.12 Cities taken into account for the determination of Banking Days :
4.13 As per Article 16.2.3 of the Agreement, the Arranger is not
subject to the disbursement obligations falling on the Bank under
this Admission Form.
5. Representations and warranties
5.1 The representations and warranties made by the Borrower under
Article 19 of the Agreement are reiterated by the Borrower as of
the date of signature of this Admission Form.
5.2 The Borrower warrants that :
5.2.1 no stipulation of this Admission Form are contrary to
public policy in Argentina,
5.2.2 the Commercial Contract as well as the Admission Form
are in strict conformity with the Argentinian
regulation of importation and transfer of funds, at the
date of this Admission Form, and that all
administrative requirements concerning the importation
of goods, equipments and/or services and the transfer
of funds for repayment have been complied with,
6. Place of Payment
All payments to the Arranger hereunder and under the Agreement shall be
effected by crediting the Bank's account no.
_________________________ with the following reference : IFAP/MTC/FDC 5/MCA
Xxxxxxxxxx XX no. ___".
All payments to the Bank hereunder and under the Agreement shall be
effected by crediting the Bank's account no.
_________________________ with the following reference : IFAP/MTC/FDC 5/MCA
Xxxxxxxxxx XX no. __".
7. List of documents to be sent with this Admission Form as condition
precedent
- A legal opinion in the terms of Appendix V of the Agreement,
- Any other document required by the Bank and the Relevant Authority(ies).
8. Entry into force
This Admission Form shall come into force on the date of its signature.
51
Made in _____________
On _________________
(in three original copies)
The Borrower The Arranger The Bank
By By By
Name Name Name
Title Title Title
52
APPENDIX II
FORM OF PROMISSORY NOTE
-----------------------------
Promissory Note P (1) no. ____
.................., on ................ (Currency) ...............
(place and date of issuance) (amount in figures)
On __________________
(payment date)
We shall pay against this Promissory Note to the order of CREDIT LYONNAIS the
amount
of.............................................................................
................................................................................
(amounts in words) (Currency),
Protest waived.
This Promissory Note shall be governed by and construed in accordance with the
laws of the French Republic.
Subscriber
(name and address of the Borrower)
to the order of
CREDIT XXXXXXXX
00, Xxxxxxxxx xxx Xxxxxxxx
00000 XXXXX
By : (Borrower's name)
Name :
----------------
Title :
---------------------
Signature :
-----------------
---------------------
Substitute with I for Promissory Notes relating to interest.
(1) Substitute with I for Promissory Notes relating to interest.
53
APPENDIX III
FORM OF LETTER OF INSTRUCTIONS
to be sent, if required, by the Borrower to the relevant
Bank for an Admission Form
-----------------------------
LETTER OF INSTRUCTIONS No. ...
Dear Sirs,
We refer to the master credit agreement (hereinafter called the "Agreement")
signed on __________________ between 1) XXXXXXXXXX HERMANOS S.A. hereinafter
called the "Borrower", 2) CREDIT LYONNAIS as Arranger and 3) several banks
including ________________, hereinafter called the "Bank" and the Admission Form
signed on ________________ between ourselves and the Bank for the partial
financing of a Commercial Contract entered into between the Borrower and
__________ (the "Supplier").
Terms and expressions defined in the Agreement shall have the same meanings when
used herein unless otherwise defined herein.
In accordance with Article 2 of the Agreement, the Bank has granted to us under
Admission Form no. ___ a Credit for a maximum amount of (Currency)
_____________ to be utilized for the financing of 85 % of the Eligible Portion
of the above-mentioned Commercial Contract plus the amounts necessary (if
requested) to enable payment or repayment as the case may be of any credit
insurance premiums due to ________________ in connection with the Credit.
Pursuant to Article 7 of the Agreement, we shall repay to the Bank the amounts
that it has paid on our behalf and for our account in accordance with the terms
and conditions of the Agreement, and pay to the Bank the interest set forth in
Article 9 thereof, and such repayment and payment of interest shall be evidenced
by Promissory Notes to be delivered to you as per Article 11 thereof.
In accordance with the provisions of the Agreement, we are sending to you
herewith enclosed :
- _________ Promissory Notes of principal numbered P1 to P__ made to the
order of Credit Lyonnais and,
- _________ Promissory Notes of interest numbered Il to I__ made to the order
of Credit Lyonnais.
The enclosed Promissory Notes are in the form of Appendix II of the Agreement.
Their respective amounts and maturity dates have been left blank.
We hereby grant you the following irrevocable power ("mandat") to act in our
name and on our behalf as followed :
54
1 - On whichever is the earlier of the date upon which the Credit is fully
drawn or the deadline date for drawing, you will :
- insert the corresponding payment dates in each of the Promissory Notes
of principal and of interest according to the starting date of the
repayment period ;
- complete each Promissory Note of principal P1 to P__ with an amount
corresponding to 1/__th of the total amount of payments made by the
Bank ;
- complete the corresponding Promissory Notes of interest I1 to I__ with
the amounts of interest due as calculated in accordance with the
provisions of Article 9 of the Agreement and Article 3 of Admission
Form no. __________.
2 - In case of voluntary prepayment as per Article 8 of the Agreement, you
will modify the amounts on the Promissory Notes of interest in consequence.
3 - If acceleration occurs as per Article 20 or 21 of the Agreement :
a) prior to the date of completion of the Promissory Notes in accordance
with paragraph 1 of this mandate, you will :
- complete one Promissory Note of principal by inserting therein
the total amount in principal due to you under Admission Form
no. ... ;
- insert in one Promissory Note of interest the total amount of
interest accrued under the corresponding Credit when its amount
becomes immediately due and owing ;
- insert as the date of maturity of these Promissory Notes the date
when the corresponding Credit becomes immediately due and owing,
or ;
b) if such date falls after the Promissory Notes have been completed in
accordance with paragraph 1 of this mandate, you will :
- substitute the date when the Credit becomes immediately due and
owing to the payment date originally entered in such Promissory
Notes ;
- modify one Promissory Note of interest by substituting to the
amount of interest originally inserted the amount of interest
accrued under the Credit until it becomes immediately due and
owing, and to the payment date, the date when the Credit becomes
immediately due and owing.
The present power ("mandat"), given in the joint interest of the parties, is in
consequence irrevocable. It has been drawn up in accordance with the specimen
set out in Appendix III of the Agreement, and may only be modified with your
written approval.
The Promissory Notes shall be kept by you. You will inform us of the performance
of the present power ("mandat").
55
This letter shall be governed by and construed in accordance with the laws of
France.
All disputes resulting from the content of this letter and its implementation
will be dealt with in accordance with the provisions of Article 26 of the
Agreement.
The Borrower
By :
Name :
Title :
00
XXXXXXXX XX
XXXX XX XXXXX XXXXXXX
WITH RESPECT TO THE AGREEMENT
---------------------------
To : CREDIT LYONNAIS as Arranger and for account of each Bank
To the attention of __________________
Dear Sirs,
You have requested our opinion as legal counsel to yourselves, ___________, and
____________ in connection with a Master Credit Agreement (the "Agreement")
dated ____________ between XXXXXXXXXX HERMANOS S.A. and the above-mentioned
companies.
Capitalized terms and expressions used in this opinion have the meanings given
to them in the Agreement.
For the purpose of rendering this opinion, we have examined :
1 - a duly executed copy of the Agreement ;
2 - copies, certified by the Borrower to be true copies and then currently in
full force and effect, of the articles of incorporation and by-laws of the
Borrower ;
3 - copies, certified by the Borrower to be true copies and then currently in
full force and effect, of a resolution of the Board of Directors of the
Borrower regarding the entering into and implementation by the Borrower of
its obligations under the Agreement, any Admission Form, any Promissory
Note and the authority of _____________ signatories of the Agreement, any
Admission Form, any Promissory Note and any Letter of Intructions on behalf
of the Borrower ;
and all other documents, regulations or laws as we have deemed necessary or
advisable to enable us to render this opinion.
In giving the opinion hereunder, we have assumed :
1 - the genuineness of all signatures, the authenticity of the originals of
all documents submitted to us as copies thereof and the conformity of such
copies with the originals ;
2 - the power and authority of all parties, other than the Borrower, to enter
into the Agreement and the due execution thereof by such parties ;
57
3 - that the Agreement is valid and binding under the law governing the
Agreement and the choice of law therein is a valid choice under the law
governing the Agreement.
The opinion given hereunder is limited to matters concerning law of Argentina.
Based upon the foregoing assumptions, we are of the opinion that :
1 - the Borrower is duly organized and validly existing as a __________ under
the laws of Argentina; it has full power and authority to conduct its
business at it is being conducted ;
2 - the Borrower has full power, authority and legal right to incur
indebteness as provided in the Agreement, to sign, execute and deliver the
Agreement and to perform all terms and conditions thereof ;
3 - In accordance with the laws of Argentina and the Borrower's articles of
incorporation and by-laws, the Borrower has been validly authorised by a
decision of __________ on__________ (a) to borrow and to incur obligations
in the terms of the Agreement and (b) M. __________ [and M. __________ ]
have been validly authorised to sign the Agreement, any Admission Form, any
Promissory Note and any Letter of Intructions ;
4 - It is not necessary to obtain from the competent authorities of Argentina
any approval necessary with respect to Argentinian law for the validity of
the Agreement and authorising its signature, execution delivery and
performance, especially with respect to foreign exchange regulations to
acquire and transfer the amounts in Currencies necessary for the Borrower
to pay any and all amounts owed under the Agreement ;
5 - The Agreement is in proper legal form for the enforcement thereof and
each obligation therein contained shall constitute the legal, valid and
binding obligation of the Borrower enforceable against the Borrower until
full payment of all sums due ;
6 - The signature, execution and delivery and the performance by the Borrower
of the Agreement do not contravene, nor violate any of the provisions of
the articles of incorporation and by-laws of the Borrower and do not result
in the violation by the Borrower of any covenant or contractual restriction
binding on the Borrower ;
7 - Neither the signature, execution and delivery, nor the performance of the
Agreement nor the decision to borrow are contrary to any law or regulation,
decree or, official decision in Argentina ;
More generally, no provision of the Agreement is contrary to public policy
in Argentina especially with respect to the determination of interest rates
and interest on late payments ;
8 - It is not necessary in order to (a) ensure the legality and validity or
(b) enforceability or admissibility in evidence in the courts of Argentina
of the Agreement that it be stamped or registered, or that any tax be paid
or any authorisation obtained in Argentina, and more particularly the
Agrement needs not to be registered with any authority in Argentina ;
58
9 - The payments to be made by the Borrower pursuant to the Agreement are not
subject to any deduction, withholding, tax or other fiscal charge in
Argentina ;
Nevertheless should any deduction, withholding, tax or other fiscal charge
subsequently be imposed, the provisions of Article 17.2 of the Agreement
shall apply as they are valid with respect to applicable Argentinian law ;
10 - Neither the Arranger nor any of the Banks shall be deemed to be resident,
domiciled, doing business or be submitted to any taxation in Argentina by
reason only of the signature, execution, delivery, performance or
enforcement of the Agreement ;
11 - The Agreement is a commercial act ;
12 - The Borrower has no right of immunity either from jurisdiction or from
execution ;
13 - The obligations of the Borrower under the Agreement rank and will rank at
least pari passu with all other unsecured obligations of the Borrower ;
14 - The Borrower has validly chosen French law to govern its obligations
under the Agreement ;
The validity of such choice shall be recognized by the courts of
Argentina ;
15 - The Borrower has validly submitted to the non-exclusive jurisdiction of an
arbitration court in the Agreement, in any Admission Form and in any Letter
of Instructions ;
An arbitral award rendered by such arbitration court shall be recognized
and enforced by the courts of Argentina, without reconsideration of the
merits of the procedure ;
16 - The courts of Argentina may render judgments in a currency other than the
local currency.
Very truly yours,
59
APPENDIX V
FORM OF LEGAL OPINION
WITH RESPECT TO AN ADMISSION FORM
-----------------------------
To: CREDIT LYONNAIS as Arranger and for account of ..............
To the attention of _____________________
Dear Sirs,
You have requested our opinion as legal counsel to yourselves in connection with
a Master Credit Agreement (the "Agreement") dated ____________ between
XXXXXXXXXX HERMANOS S.A. as Borrower, CREDIT LYONNAIS as Arranger and
____________ as Bank and an Admission Form no. ___ signed between the
Bank, the Borrower and yourselves.
Capitalized terms and expressions used in this opinion have the meanings given
to them in the Agreement.
For the purpose of rendering this opinion, we have examined :
1 - originals of :
1.1 the Agreement,
1.2 Admission Form no. _______,
1.3 the Letter of Instructions no.______ (if any),
1.4 the corresponding Promissory Notes (hereafter the "Promissory
Notes"), (if any)
(hereinafter collectively referred to as the "Credit Documents"),
2 - copies, certified by the Borrower to be true copies of :
2.1 all authorisations, consents, licences and permits necessary in
Argentina to enable :
2.1.1 the Borrower to enter into Admission Form no. _____, the
Letter of Instructions no. ____ and the Promissory Notes,
and to pay all sums due thereunder,
2.1.2 the Buyer to enter into and perform the Commercial Contract,
especially to import goods and/or services and pay therefor in
the contractual currencies,
60
2.2 the Commercial Contract,
2.3 modification, if any, of the articles of incorporation and
by-laws of the Borrower,
2.4 a resolution of the Board of Directors of the Borrower regarding the
entering into and implementation by the Borrower of its obligations
the Admission Form no. ____ and the Promissory Notes and the
authority of ____________, signatories of the Admission Form
no. __ and of the Promissory Notes on behalf of the Borrower
(if different from those already provided) ,
and all other documents, regulations or laws as we have deemed necessary
or advisable to enable us to render this opinion.
In giving the opinion hereunder, we have assumed :
1 - the genuineness of all signatures, the authenticity of the originals of
all documents submitted to us as copies thereof and the conformity of such
copies with the originals ;
2 - the power and authority of all parties, other than the Borrower, to
enter into the Credit Documents and the due execution thereof by such
parties ;
3 - that the Credit Documents are valid and binding under the law governing
them and the choice of law therein is a valid choice under the law
governing them.
The opinion given hereunder is limited to matters concerning the law of
Argentina.
Based upon the foregoing assumptions, we are of the opinion that :
1 - The Borrower has full power, authority and legal right to incur
indebteness as provided in the Credit Documents, to sign, execute and
deliver the Credit Documents and to perform all terms and conditions
thereof ;
2 - In accordance with the laws of Argentina and the Borrower's articles of
incorporation and by-laws, the Borrower has been validly authorised by a
decision of ____________ on ____________ (date) (a) to borrow and to incur
obligations in the terms of the Credit Documents and (b) M.
____________and M. ____________ have been validly authorised to sign
Admission Form no. ____________, the Promissory Notes and the Letter of
Instructions no. _____ (if different from those already provided) ;
3 - It is not necessary to obtain from the competent authorities of Argentina
any approvals necessary with respect to Argentinian law for the validity
of the Credit Documents and authorising their signature, execution,
delivery, and performance especially with respect to foreign exchange
regulations to acquire and transfer the amounts in Currencies necessary
for the Borrower to pay any and all amounts owed under the Credit
Documents ;
4 - The Buyer has obtained all authorizations, licences, permits or other
approvals necessary to sign, execute, deliver and perform the Commercial
Contract ;
61
5 - The Credit Documents are in proper legal form for the enforcement thereof
and each obligation therein contained shall constitute the legal, valid
and binding obligation of the Borrower enforceable against the Borrower
until full payment of all sums due ;
6 - The execution and performance by the Borrower of the Credit Documents do
not contravene, nor violate any of the provisions of the articles of
incorporation and by-laws of the Borrower and do not result in the
violation by the Borrower of any covenant or contractual restriction
binding on the Borrower ;
7 - Neither the signature, execution and delivery, nor the performance of
the Credit Documents nor the decision to borrow are contrary to any law or
regulation, decree or official decision in Argentina ;
More generally, no provision of the Credit Documents is contrary to public
policy in Argentina especially with respect to the determination of
interest rates and interest on late payments ;
8 - It is not necessary in order to (a) ensure the legality and validity or
(b) enforceability or admissibility in evidence in the courts of Argentina
of the Credit Documents that any of them be stamped or registered, or that
any tax be paid or any authorisation obtained in Argentina ;
9 - The payments to be made by the Borrower pursuant to the Credit Documents
are not subject to any deduction, withholding, tax or other fiscal charge
in Argentina ;
Nevertheless should any deduction, withholding, tax or other fiscal charge
subsequently be imposed, the provisions of Article 17.2 of the Agreement
shall apply as they are valid with respect to applicable Argentinian law ;
10 - Neither the Arranger nor any of the Banks shall be deemed to be resident,
domiciled, doing business or be submitted to any taxation in Argentina by
reason only of the signature, execution, delivery, performance or
enforcement of the Credit Documents ;
11 - The Credit Documents are commercial acts ;
12 - The Borrower has no right of immunity either from jurisdiction or from
execution ;
13 - The obligations of the Borrower under the Credit Documents rank and will
rank at least pari passu with all other unsecured obligations of the
Borrower ;
14 - The Borrower has validly chosen French law to govern its obligations under
the Credit Documents ;
The validity of such choice shall be recognized by the courts of
Argentina;
15 - The Borrower has validly submitted in the Credit Documents to the
non-exclusive jurisdiction of an arbitration court ;
62
An arbitral award rendered by such arbitration court shall be recognized
and enforced by the courts of Argentina, without reconsideration of the
merits of the procedure ;
16 - The courts of Argentina may render judgments in a currency other than the
local currency.
Very truly yours,
