LOAN AGREEMENT BANCO DE CHILE ET AL. TO DISTRIBUCIÓN Y SERVICIO D&S S.A.
BANCO
DE CHILE ET AL.
TO
DISTRIBUCIÓN
Y SERVICIO D&S S.A.
In
Santiago, Chile, on May 22, 2008, before me, XXXXXXXX XXXXXXXXX COSTABAL, a
Chilean national, married, attorney-at-law, bearing national identification
card
number 13,066,313-3, Notary Public and Alternate for the Holder of Title to
the
33rd Notarial Office in and for Santiago, Xx. XXXX XXXXXXXXX XXXXXXX, as per
a
Judiciary Decree entered into the records of this office, with a place of
business at Xxxxxxxxx 000, xxxxx 000, Xxxxxxxxx Xxxxxxxx of Santiago, personally
appeared:
/1/
BANCO
DE CHILE, a banking corporation organized and existing under the laws of Chile,
with taxpayer number 97,004,000-5 (“Banco de Chile”), represented as hereinbelow
evidenced by Xx. XXXXXX XXXXXXXX XXXX, a Chilean national, married, business
administrator, bearing national identification card number 7,016,951-7, and
Xx.
XXXX XXXXXX XXXXXXXXX RICHANI, an Argentine national, married, civil industrial
engineer, foreigner identification card number 10,099,731-2, all domiciled
at
Xxxxxxx 000, xxxxxxxxx xxxxxxxx xx Xxxxxxxx;
/2/
BANCO
BILBAO VIZCAYA ARGENTARIA, CHILE, a banking corporation organized and existing
under the laws of Chile, with taxpayer number 97,032,000-8 (“BBVA”), represented
as hereinbelow evidenced by Xx. XXXXXXXXX XXXXX XXXXX, a Chilean national,
married, business administrator, bearing national identification card number
10,584,145-0, and Xx. XXXXXX XXXXXXXXXXX CRUZAT, a Chilean national, married,
business administrator, bearing national identification card number
11,472,487-4, all domiciled at Avenida Xxxxx xx Xxxxxxxx 000, 00xx xxxxx,
xxxxxxxxx xxxxxxxx of Providencia;
/3/
BANCO
ITAU CHILE, a banking corporation organized and existing under the laws of
Chile, with taxpayer number 76,645,030-K (“Banco Itaú”), represented as
hereinbelow evidenced by Xx. XXXXXX XXXXXXXX-XXXXXX, an Argentine national,
married, with a degree in business administration, foreigner identification
card
number 14,744,667-5, and Xx. XXXXXXXXX XXXXXX XXXXXXXXX, a Chilean national,
married, business administrator, bearing national identification card number
7,740,940-8, all domiciled at Xxxxxxx Xxxxxxxxx 0000, xxxxxxxxx xxxxxxxx of
Las
Condes;
/4/
CORPBANCA, a banking corporation organized and existing under the laws of Chile,
with taxpayer number 97,023,000-9 (“Corpbanca”), represented as hereinbelow
evidenced by Mr. CRISTIÁN CHAURIYE CASSIS, a Chilean national, married, business
administrator, bearing national identification card number 10,342,387-8, and
Xx.
XXXXXXXX XXXXXXX XXXXXXXX, a Chilean national, married, attorney-at-law, bearing
national identification card number 9,866,273-1, all domiciled at Xxxxxxx Xxxxx
000, 00xx xxxxx, xxxxxxxxx xxxxxxxx of Las Condes;
/5/
SCOTIABANK SUD AMERICANO, a banking corporation organized and existing under
the
laws of Chile, with taxpayer number 97,018,000-1 (“Scotiabank”), represented as
hereinbelow evidenced by Xx. XXXXXX XXXXX XXXXXX, a Chilean national, married,
business administrator, bearing national identification card number 7,899,176-3,
and Xx. XXXXXX XXXXXXX ARMADA, a Venezuelan national, single, civil engineer,
baring foreigner identification card number 14,645,906-4, all domiciled at
Xxxxxxx 000, xxxxxxxxx xxxxxxxx of Santiago; /6/ BANCO SANTANDER-CHILE, a
banking corporation organized and existing under the laws of Chile, with
taxpayer number 97,036,000-K (“Santander-Chile”), represented as hereinbelow
evidenced by Xx. XXXXXXXXX XXXXXXXX HARISMENDY, a Chilean national, married,
business administrator, bearing national identification card number 7,037,231-2,
and Xx. XXXXXXX XXXXXX XXXXX, a Chilean national, married, civil industrial
engineer, bearing national identification card number 7,744,147-6, all domiciled
at Bandera 000, xxxxxxxxx xxxxxxxx xx Xxxxxxxx; and
/7/
DISTRIBUCIÓN Y SERVICIO D&S S.A., taxpayer number 96,439,000-2 (“D&S”),
represented as hereinbelow evidenced by Mr. XXXXXX XXXXX XXXXX,
a
Chilean national, married, business administrator, bearing national
identification card number 10,087,763-5, both domiciled at Xxxxxxx xxx Xxxxx
Xx.
000, xxxxxxxxx xxxxxxxx of Huechuraba.
The
parties appearing, being of legal age and having evidenced their identities
by
producing the aforementioned personal documents, hereby set forth as follows:
SECTION
ONE.
Definitions.
As used herein, the following expressions shall bear the meaning indicated
below, which shall apply to both the singular and the plural:
“Lenders”
mean the following banking institutions first above identified: /i/ Banco de
Chile; /ii/ Banco Bilbao Vizcaya Argentaria, Chile; /iii/ Banco Itaú Chile; /iv/
Corpbanca; /v/ Scotiabank Sud Americano; and /vi/ Banco Santander-Chile.
“Majority
Lenders” mean Lenders who represent at least 50.1% of Outstanding Principal as
of the date on which the applicable decision is made.
“Agent
Bank” means Banco de Chile, first above identified.
“Lead
Bank” means Banco de Chile and/or Banchile Asesoría Financiera S.A.,
(“Banchile”).
“Control
Change” means any act, fact or circumstance resulting in /i/ a person or entity
acquiring control over Borrower in accordance wit article 97 of Law 18,045
on
the Securities Market, or else /ii/ changing the person or persons who currently
exercise the ultimate control over Borrower, whether through, but not limited
to, the creation of a control group in which a person other than the current
controlling shareholders participates, or else replacing the persons who are
the
current ultimate controlling shareholders.
2
“Outstanding
Principal” means the total amount owed by Borrower hereunder on the applicable
calculation date, initially totaling the principal amount of 61,200,000,000
Pesos, distributed among Borrowers as indicated in Section Three.
“Certificates”
bears the meaning given to that term in Subsection 3/a/ of Section two of this
Agreement.
“Agreement”
means this Loan Agreement. “Original Loans” mean the Original Loan by Banco
Bilbao Vizcaya Argentaria, Chile and the Original Loan by Banco Santander-Chile,
as described in Section Two of this Agreement.
“Borrower”
means DISTRIBUCIÓN Y SERVICIO D&S S.A., taxpayer number 96,439,000-2, first
above identified.
“Consolidated
Borrower” means, jointly, Borrower and each of its present or future
subsidiaries.
“Bank
Business Day” means any day of the year except for Saturdays, Sundays, legal
holidays or such days on which commercial banks are required or allowed to
remain closed to the public or for business in the Republic of Chile.
“Dollars”
means the lawful currency of the United States of America, and its equivalent
in
Pesos, if so provided, shall be the exchange rate known as “Observed Dollar”,
published in the Official Gazette of the Republic of Chile by the Central Bank
of Chile as provided in Nr. 6 of Chapter I of the Foreign Exchange Regulations
of said Central Bank as of the date on which the calculation is to be made,
or
else, if not published on that day, on the most recent date when previously
published.
“Material
Adverse Impact” means, any fact, situation or circumstance that. /a/ affects the
legality, effectiveness and enforceability of this Agreement; or /b/ is
reasonably expected to have a material negative impact on: /i/ the business,
operations, properties, assets and/or situation (financial or otherwise) of
Borrower or its Relevant Subsidiaries; or /ii/ Borrower’s ability to perform its
obligations hereunder; or /iii/ the rights and actions of Lenders hereunder.
“Financial
Statements” means the balance sheets, income statements and statements of cash
flow of Borrower, duly audited only in the case of annual financial statements.
“Final
Maturity Date” means May 22, 2010, provided however that if such date is not a
Bank Business Day, the Final Maturity date shall be the Bank Business Day
immediately preceding such date.
“FECU”
means the consolidated Uniform Coded Statistical File to be filed by the
Consolidated Borrower with the Securities and Insurance Commission, or such
other information or document hereinafter replacing the same.
“Relevant
Subsidiaries” means any subsidiary of any of the companies comprising the
Consolidated Borrower, whose assets represent more than 5% of the Net Worth
of
the Consolidated Borrower.
3
“Stamp
Tax” means the tax provided by article 1 of the Stamp tax Law and he rate
established thereby.
“Stamp
Tax Law” means Decree Law 3,475 on Stamp Tax, as amended from time to time.
“Spread”
means 0.45% per annum. “Loan” bears the meaning given to that term in Subsection
1 of Section Three hereof. “Net Worth” means the total sum in the net worth
account –currently in account number 5.24.00.00 of the FECU- without any
deduction or addition whatsoever.
“Interest
Periods” bears the meaning given to that term in Section Three, Subsection 3.7
hereof.
“Pesos”
means pesos, the lawful currency and tender of the Republic of Chile.
“Base
Rate” means such variable interest rate as is defined in section Three,
Subsection 3.7 hereof.
“Unidad
de Fomento” means the indexation unit referred to in Nr. 9 of article 35 of Law
18,840, Constituti0onal Statute of the Central Bank of Chile, or any such unit
as may replace the same in the future and determined on an identical or
comparable basis.
SECTION
TWO.
1.
Original Loans. Lenders hereby set on record that the proceeds obtained hereby
shall be used to refinance the Original Loans identified hereinbelow: (a)
Original Loan by Banco Bilbao Vizcaya Argentaria, Chile: On May 24, 2007, Banco
Bilbao Vizcaya Argentaria, Chile extended a short-term loan to D&S in the
sum of 8,200,000,000 Pesos, which sum D&S to date owes to Banco Bilbao
Vizcaya Argentaria, Chile, which is documented in promissory note number
05040143919600001197, signed by Borrower on May 24, 2007; (b) Original Loans
by
Banco Santander-Chile: (i) On May 29, 2007, Banco Santander-Chile extended
a
short-term loan to D&S in the sum of 20,000,000,000 Pesos, which sum D&S
to date owes to Banco Santander -Chile, which is documented in promissory note
number 00350181420007481623, signed by Borrower on May 29, 2007; (ii) On
November 7, 2007, Banco Santander-Chile extended a short-term loan to D&S in
the sum of 8,000,000,000 Pesos, which sum D&S to date owes to Banco
Santander -Chile, which is documented in promissory note number
00350181420008013798, signed by Borrower on November 7, 2007; (iii) On February
12, 2008, Banco Santander-Chile extended a short-term loan to D&S in the sum
of 25,000,000,000 Pesos, which sum D&S to date owes to Banco Santander
-Chile, which is documented in promissory note number 00350181420008339618,
signed by Borrower on November 7, 2007.
2.
Stamp
Tax. Stamp Tax has been duly paid on the obligations identified in (a) to (b)
above, at the applicable rate as per the maturity of such loans, through
payments delivered to the General Treasury of the Republic as evidenced in
the
Certificates indicated hereinbelow. As to such loans that as of this date have
not paid the maximum applicable rate, it is hereby set on record that Borrower
has delivered to Lenders the amount pertaining to the respective Stamp Tax
in
order that the latter should deliver the same to the authorities pursuant to
the
Stamp Tax Law.
4
3.
/a/
Certificates. Pursuant to the provisions of article 24(17) of the Stamp tax
Law
and the instructions issued by the Internal Revenue Service as contained in
Directive Nr. 69 issued by said entity on December 21, 2006, the payment of
the
aforementioned Stamp Tax is evidenced in the Certificates issued by the banks
identified hereinbelow, a copy of which is inserted at the end of this
instrument, with the evidence by Borrower of the amount of the Original Loan,
the calculation of the loan as of such date /including principal, interest
and
commissions, if any/ and the Stamp tax paid on the respective loan /the
“Certificates”/:
/i/
Banco
Bilbao Vizcaya Argentaria, Chile. Certificate issued on May 22, 2008, for the
Original Loan by BBVA, in the original principal amount of 8,200,000,000 Pesos,
of which 8,200,000,000 Pesos are paid to BBVA as principal as provided in this
Subsection 3 and in Subsection 4 of Section Two.
/ii/
Banco Santander-Chile. (a) Certificate issued on April 28, 2008, for the
Original Loan by Banco Santander-Chile, in the original principal amount of
8,000,000,000 Pesos, of which 8,000,000,000 Pesos are paid to Banco
Santander-Chile as principal as provided in this Subsection 3 and in Subsection
4 of Section Two; (b) Certificate issued on April 28, 2008, for the Original
Loan by Banco Santander-Chile, in the original principal amount of
25,000,000,000 Pesos, of which 25,000,000,000 Pesos are paid to Banco
Santander-Chile as principal as provided in this Subsection 3 and in Subsection
4 of Section Two; and (c) Certificate issued on April 28, 2008, for the Original
Loan by Banco Santander-Chile, in the original principal amount of
20,000,000,000 Pesos, of which 20,000,000,000 Pesos are paid to Banco
Santander-Chile as principal as provided in this Subsection 3 and in Subsection
4 of Section Two.
/b/
Agency. Borrower, duly represented as first above indicated, and in compliance
with the provisions of article 24(17) of the Stamp Tax law, hereby grants to
Lenders, duly represented as first above indicated, who accept, an irrevocable
commercial agency pursuant to article 241 of the Code of Commerce, for
gratuitous consideration, in order that the proceeds of the Loan granted to
Borrower by Lenders under Section Three hereof shall be used, ratably to their
respective participations, to repay the Original Loans by BBVA and Banco
Santander-Chile against Borrower, as indicated in each Certificate;
/i/
To
Banco de Chile, in order that the proceeds of the Loan granted by the same
to
Borrower as per Section Three of this Agreement be used to pay Banco
Santander-Chile, for the loans identified in the Certificates issued by said
bank.
/ii/
To
BBVA, for part of the proceeds of the Loan granted by the same to Borrower
as
per Section Three of this Agreement, i.e. the sum of 817,010,000 Pesos, be
used
to pay Banco Santander- Chile for the loans identified in the Certificates
issued by said bank.
/iii/
To
Banco Itaú, for part of the proceeds of the Loan granted by the same to Borrower
as per Section Three of this Agreement, be used to pay Banco Santander- Chile
for the loans identified in the Certificates issued by said bank.
5
/iv/
To
Corpbanca, for part of the proceeds of the Loan granted by the same to Borrower
as per Section Three of this Agreement, be used to pay Banco Santander- Chile
for the loans identified in the Certificates issued by said bank.
/v/
To
Scotiabank, for part of the proceeds of the Loan granted by the same to Borrower
as per Section Three of this Agreement, be used to pay Banco Santander- Chile
for the loans identified in the Certificates issued by said bank. Borrower
sets
on record that the agencies granted under this subsection 3/b/ of Section Two
correspond to a total sum of 48,006,029,000 Pesos and that, with regard to
the
loans evidenced in the Certificates, the Stamp tax was paid for up to the
amounts indicated in each Certificate, so that for such amounts no payment
of
Stamp tax is either made or allowanced, as provided in article 24(17) of the
Stamp Tax Law and the instructions issued by the Internal Revenue Service as
contained in Directive Nr. 69 issued by said entity on December 21, 2006. As
to
such loans that as of this date have not paid the maximum applicable rate,
it is
hereby set on record that Borrower has delivered to Lenders the amount
pertaining to the respective Stamp Tax in order that the latter should deliver
the same to the authorities pursuant to the Stamp Tax Law.
4.
Authorizations. Borrower, duly represented as first above indicated, pursuant
to
article 24817) of the Stamp Tax Law, hereby grants the following authorizations
to BBVA and to Santander-Chile, in order that part of the proceeds of the Loan
extended to Borrower by said banks as per Section Three hereof be used to repay
the loans each of them has against Borrower as evidenced in the Certificates:
/i/
To
BBVA, in order that part of the proceeds of the Loan granted in Section Three,
in the sum of 8,200,000,000 Pesos, be credited directly to the payment of the
loan identified in the Certificate issued by BBVA indicated in Subsection 3
/a/
/i/ above, a copy of which is inserted at the end of this instrument.
/ii/
To
Santander- Chile, in order that the proceeds of the Loan granted in Section
Three, in the sum of 4,993,971,000 Pesos, be credited directly to the payment
of
the loan identified in the Certificates issued by Banco Santander-Chile
indicated in Subsection 3 /a/ /ii/ above, copies of which is inserted at the
end
of this instrument. Borrower makes a record of the fact that the authorizations
granted in this section correspond to a total amount of 13,193,971,000 Pesos,
and that, with regard to the loan evidenced in the Certificates issued by BBVA
and by Santander- Chile, the Stamp tax was paid for up to the amounts indicated
in the aforementioned Certificates, so that for such amounts no payment of
Stamp
tax is either made or allowanced, as provided in article 24(17) of the Stamp
Tax
Law and the instructions issued by the Internal Revenue Service as contained
in
Directive Nr. 69 issued by said entity on December 21, 2006. As to such loans
that as of this date have not paid the maximum applicable rate, it is hereby
set
on record that Borrower has delivered to Lenders the amount pertaining to the
respective Stamp Tax in order that the latter should deliver the same to the
authorities pursuant to the Stamp Tax Law.
6
SECTION
THREE.
ONE.
1.
The
Loan. Lenders hereby grant, in the participations indicated hereinbelow, a
cash
loan to DISTRIBUCIÓN Y SERVICIO D&S S.A. in the sum of 61,200,000,000 Pesos
equivalent as of this date to 3,054,227.51 Unidades de Fomento. The total amount
of the Loan is disbursed and delivered to Borrower, who, represented as first
above indicated, represents receiving the Loan hereby to its complete and entire
satisfaction. It is hereby noted that this sum shall be subject to the
stipulations on agency and authorizations to make payments as established in
Subsections 3 and 4 of Section two above. Lenders have contributed to the
delivery of the Loan and participate in the following proportions and amounts
in
the resulting Outstanding Principal:
/i/
Banco
de Chile, with the sum of 17,032,130,000 Pesos;
ii/
BBVA,
with the sum of 9,017,010,000 Pesos;
/iii/
Banco Itaú, with the sum of 8,616,254,000 Pesos;
/iv/
Corpbanca with the sum of 13,525,515,000 Pesos;
/v/
Scotiabank with the sum of 8,015,120,000 Pesos; and
/vi/
Santander-Chile with the sum of 4,993,971,000 Pesos.
Lenders
and Borrower expressly set on record that there is no association among
Borrowers in the loans owed by Borrower, and therefore each one of them is
a
simply joint lender and hence the sole holder of its respective credit claim
for
the amount indicated for each of them in this Section Three. Likewise, and
as
additional evidence of Borrower’s obligation to pay principal and interest
hereunder and without any intention to novate, on even date herewith Borrower
signs to the order of each Borrower and in the presence of a Notary Public
promissory notes totaling the same sum of 61,200,000,000 Pesos. The amounts
of
each promissory note delivered to each Borrower are as follows:
/i/
Banco
de Chile, in the sum of 17,032,130,000 Pesos;
ii/
BBVA,
in the sum of 9,016,010,000 Pesos;
/iii/
Banco Itaú, in the sum of 8,616,254,000 Pesos;
/iv/
Corpbanca in the sum of 13,525,515,000 Pesos;
/v/
Scotiabank in the sum of 8,015,120,000 Pesos; and
/vi/
Santander-Chile in the sum of 4,993,971,000 Pesos.
It
is
hereby noted that the Stamp tax is deemed paid as provided in article 24(17)
of
the Stamp Tax Law and the instructions issued by the Internal Revenue Service
as
contained in Directive Nr. 69 issued by said entity on December 21, 2006. As
to
such loans that as of this date have not paid the maximum applicable rate,
it is
hereby set on record that Borrower has delivered to Lenders the amount
pertaining to the respective Stamp Tax in order that the latter should deliver
the same to the authorities pursuant to the Stamp Tax Law.
7
1.
Statement of Loan Repayment and Claims Release.
/i/
BBVA,
in accordance with the agencies and authorization granted by Borrower in
Subsection 3/b/ and Subsection 4 /i/ of Section two, respectively, hereby states
receiving the sum of 8,200,000,000 Pesos as the complete repayment of principal
of the Original Loan by BBVA identified in Subsection 1(a) of Section Two.
Accordingly, it hereby states that Borrower has fully and completely performed
each and every one of its obligations under the Original Loan by BBVA, declaring
that it is owed nothing by Borrower, and accordingly granting it a total,
complete and absolute claims release.
/ii/
Santander- Chile, in accordance with the agencies and authorization granted
by
Borrower in Subsection 3/b/ and Subsection 4 /ii/ of Section two, respectively,
hereby states receiving from Lenders the sum of 53,000,000,000 Pesos as the
complete repayment of principal of the Original Loans by Banco Santander-Chile
identified in Subsection 1(a) /i/, /ii/ and /iii/ of Section Two. Accordingly,
it hereby states that Borrower has fully and completely performed each and
every
one of its obligations under the Original Loans by Banco Santander-Chile,
declaring that it is owed nothing by Borrower, and accordingly granting it
a
total, complete and absolute claims release. Borrower agrees and undertakes
to
pay Lenders the sums owed to each of them on the terms and conditions set forth
hereinbelow.
TWO.
Outstanding Principal. Outstanding Principal under this Loan shall be determined
and paid in Pesos.
THREE.
Accrual and Payment of Interest.
1.
Accrual. Outstanding Principal shall accrue daily interest in favor of Lenders
at the rate indicated hereinbelow, as from this date and until its full and
complete payment.
2.
Applicable Interest Rate. The applicable interest rate for each Interest Period
shall be equal to the Base Rate plus the Spread.
3.
Interest shall be paid in arrears on the last day of the Interest Period.
Likewise, interest shall be calculated on the basis of a 360-day year.
4.
Interest accruing on Outstanding Principal shall be paid to Borrowers through
the Agent Bank, who shall apportion the sums it receives among Borrowers on
the
last day of each Interest Period and on the date on which Outstanding Principal
is paid in full, in the same manner indicated in Three 6. below.
5.
Interest shall accrue including the first day and excluding the last day of
each
Interest Period, and thereafter the following Interest Period shall include
the
last day of the preceding Interest Period.
8
6.
/i/ As
used herein, “Interest Period” means a 6-month period that starts on the
execution date of this instrument and ends on the last day of the 6-monh term
that starts on such date, and thereafter each subsequent period shall start
on
the last day of the immediately preceding Interest Period and end on the last
day of the 6-month term that starts on such date.
/ii/
Notwithstanding the foregoing, whenever the last day of any Interest Period
falls on other than a Bank Business Day, the last day of such Interest Period
shall be extended to the immediately following Bank Business Day, provided
however that if due to said extension the last day of said Interest Period
falls
in the following calendar month, the last day of said Interest Period shall
be
the immediately preceding bank Business Day. /iii/ Moreover, if the last day
of
an Interest Period does not coincide with the due date for normal amortization
of Outstanding Principal, whether it ends before or after the Final maturity
Date, said Interest Period shall end on the Final Maturity Date./iv/ For the
purposes of the first Interest Period, the parties expressly agree that it
starts on even date herewith and shall end on November 22, 2008.
7.
For
all intents and purposes hereof, Borrower represents knowing and accepting
that:
/i/
the
Base Rate shall be the rate equivalent to the Nominal TAB Rate for nominal
operations maturing within 180 days, determined on the first bank Business
Day
of an Interest Period, in which the interest rate is to be adjusted, to be
published in the press on the day following its determination;
/ii/
that
the TAB rate for nominal 180-day operations corresponds to the weighted average
borrowing interest rate for nominal 180-day operations, which multiplied times
12 in order to express the same in annual terms shall be reported and determined
for each Bank Business Day by the Chilean Association of Banks and Financial
Institution, as per the Restated Text of the Regulations for Nominal, Zero,
BCP
and BCU Bank Rates agreed at the board of directors’ meeting of said Association
on June 23, 2005 and published in the Official Gazette on February 6, 2006;
and
/iii/
Borrower likewise accepts that if said determination is not made on a day that
is the first Bank Business Day of an Interest Period during which the interest
rate is required to be adjusted as aforesaid, which need not be evidenced by
Lenders, during the period in question the TAB Rate determined by the Chilean
Association of Banks and Financial Institutions for the Bank Business Day
immediately following the first Bank Business Day of the relevant Interest
Period shall apply. Borrower likewise accepts that, in order to evidence the
applicable interest rate and/or which would have governed for this obligation
at
any time during the effective term thereof, Lenders may use and/or assert any
means of evidence, including certificates or declarations issued by the Chilean
Association of banks and Financial Institutions.
/iv/
The
parties expressly agree that if as of the first bank Business Day of any
Interest Period the current TAB rate mentioned above does not exist or is not
published or certified by the Chilean Association of Banks and Financial
Institutions, and is not replaced as aforesaid, starting with that Interest
Period and for each subsequent Interest Period, the applicable interest rate
shall be equal to the fortnightly Average Interest Rate (TIP) for borrowings
for
non-adjustable operations maturing within 90 and 365 days certified by the
Central bank of Chile as per Chapter IV letter B.8.1 of the Financial
Regulations of the Central Bank of Chile or any other subsequently replacing
the
same, considering the rate in effect for the second half of the month preceding
the first day ff an Interest Period, or such other rate such as replaces the
same in the future, plus the Spread, as well as surcharged with the reserve
requirement, technical reserve or any other legal or regulatory requirement
not
included in the Average Interest rate (TIP).
9
/v/
If
the Central Bank of Chile does not publish or certify the Average Interest
Rate
(TIP) mentioned above, then, in lieu of said Average Interest Rate (TIP), the
current interest rate for non-adjustable cash loan operations in local currency
maturing in 180 days shall apply plus the Spread; if the summation of said
current interest rate plus the Spread results in an interest rate exceeding
the
maximum permitted by law for non-adjustable cash loan operations in local
currency, the latter shall apply.
FOUR.
Fees, Costs and Expenses. 1. Lead Bank Fee. Borrower hereby pays the Lad bank
a
syndication fee, the conditions of which are set out under separate cover.
2.
Agent Bank Fee. Borrower shall pay an Agent Bank fee to Banco de Chile, the
conditions of which are set out under separate cover. 3. Borrower is not subject
to any other fee. 4. Costs and Expense. Borrower hereby agrees to pay or
reimburse all costs and expenses reasonably incurred as a result of or in
connection with the preparation, execution and delivery of the Loan
documentation or as a result of the enforceability of the Loan documentation,
including Creditors’ legal counsel, fees and commissions of the notaries public
who participate in the formalization of this agreement.
FIVE.
Amortization. Borrower may only amortize Outstanding Principal, in whole or
in
part, voluntarily or in mandatory fashion, in time and form as provided in
this
Subsection Five. 1. Normal Amortization. Outstanding Principal hereunder shall
be paid on a bullet-basis in the sum of 61,200,000,000 Pesos due on May 22,
2010, to be apportioned among Lenders as per the percentages to which each
is
entitled out of Outstanding Principal, namely: /i/ 17,032,130,000 Pesos to
Banco
de Chile; /ii/ 9,017,010,000 Pesos to Banco Bilbao Vizcaya Argentaria, Chile;
/iii/ 8,616,254,000 Pesos to Banco Itaú Chile; /iv/ 13,525,515,000 Pesos to
Corpbanca; /v/ 8,015,120,000 Pesos to Scotiabank Sudamericano; and /vi/
4,993,971,000 Pesos to Santander- Chile. Payment shall be made as provided
in
Subsection Seven (1) of this Section. 2. Voluntary Prepayment, Total or Partial.
Outstanding Principal may be prepaid in whole or in part by Borrower, at no
cost
or surcharge for the same, through payment in time and form to Lenders through
the Agent Bank, who shall apportion the sums received ratably among Lenders,
complying with the following concurrent conditions: /i/ Each prepayment, if
partial, shall be in an amount of not less than the equivalent of 25% of
Outstanding Principal as of the prepayment date; /ii/ The date of the prepayment
shall be the last day of an Interest Period other than a Friday or a day
immediately preceding any ay other than a Bank Business Day, notwithstanding
the
provisions of 3. below; /iii/ Borrower shall have notified the Agent Bank on
its
intention to prepay, at least 30 Bank Business Days in advance of the desired
prepayment date from the receipt of the notification referred to in this
paragraph /iii/, the prepayment shall be irrevocable, and Borrower shall be
required to deliver the prepayment on the date when it agreed to do so. 3.
General Provisions for Normal and Mandatory Prepayments, Total or Partial.
/i/
Any sum paid by Borrower shall be paid to all Lenders ratably to their credit
claims; /ii/ any sum of Outstanding Principal paid shall not be reimbursed
again; /iii/ If the amounts of voluntary prepayments total or partial, are
paid
other than on the last day of an Interest Period, Borrower shall further pay
Lenders, as an additional cost for such prepayment, the applicable sum if the
TAB rate for 180-day operations in effect in the market on the prepayment date
/for these purposes, the “Market TAB”/ is lower than the TAB rate for 180-day
operations applied during the Interest Period in effect hen the said prepayment
is made /as used herein, the “Contractual TAB”/, which results from applying the
following formula: /a/ the number representing the difference between
Contractual TAB and Market TAB, MULTIPLIED times /b/ the sum yielded by
multiplying the unpaid principal at the time of the prepayment times the number
of days existing between the prepayment date and the last day of the
then-current Interest Period, divided by 30 days; and /iv/ in connection with
the prepayments, Borrower shall deliver to the Agent Bank available funds as
provided in Subsection Seven.1 of this Section, who in turn shall apportion
the
same immediately among Lenders in the applicable proportions.
10
SIX.
Taxes. Any payment made by Borrower hereunder hall be free and clear of any
taxes, duties, withholdings, deposits or any other deductions, present or
future, regardless of their nature. Consequently, Borrower shall be responsible
for any and all duties, taxes, assessments, Stamp Taxes, any other levies,
state, municipal or otherwise, and regardless of their nature, class or type,
including Value Added Tax, except for indirect taxes on income and/or capital
of
Lenders, levied presently or hereafter, in connection with the execution,
delivery or termination of this Agreement.
SEVEN.
Form and Effects of Payments.
1.
Date,
Place and Currency of Payment. Whenever Borrower is required to pay any sum
to
Lenders hereunder, it shall do so by delivering freely-available funds to the
Agent bank, and may consist of cashier’s checks taken with banks located in
Xxxxxxxx and issued to the name of each of the Lenders, or through any other
document evidencing the immediate availability of the funds to the order of
the
same, by electronic transfer of funds, at the choice of the Agent Bank, or
otherwise as agreed by Borrower and the Agent Bank. Said payment shall be made
by Borrower on the due date and before 12:00 p.m., without any need for demand,
at the address of the Agent Bank first above indicated. The currency of payment
shall be Pesos. Once the payments are received by the Agent Bank, and in any
case before 2:00 p.m. on the same day on which the payments are received, it
shall apportion them among Lenders through the delivery of same-day funds.
If
any Lender obtains the payment of any sum owed hereunder other than as
aforesaid, including payments received in the exercise of the authorities
provided in 2. below, and one or more other Lenders have not received the
payments to which they are entitled hereunder, the Lender who obtains the
payment shall be deemed a deputy for the payment of the amount in excess of
its
interest and as such shall be required to share the sums so received with the
remaining Lenders, so that all Lenders shall be paid proportionally to the
amount of their respective interests in Outstanding Principal.
2.
Net
Amounts. Notwithstanding the provisions of subsection 8 of this section, all
sums due by Borrower to Lenders hereunder shall be paid in full, without any
deduction or withholding. To this effect, it is hereby agreed that if for any
reason Borrower were legally and indefectibly required to make any deduction
or
withholding, it shall do so but shall credit to Lenders any additional sums
deemed necessary in order that they should receive a net amount equal to that
which they would have received had the deduction or withholding not taken place.
If Borrower accordingly makes any payment requiring it to make any deduction
or
withholding, it shall pay the entire deduction or withholding to the competent
tax authorities within the term provided by applicable legislation and provide
the Agent Bank within 30 days following said payment an original payment form
or
letter or legalized copy thereof issued by the same entity, evidencing the
payment thereto of all sums so deducted or withheld in relation to Lenders.
11
3.
Setoffs. /i/ Borrower expressly and irrevocably authorizes Lenders in case
Borrower defaults or howsoever delays in the payment of any obligations
hereunder and as from the day following maturity of those obligations or upon
acceleration of any such obligations in accordance with their terms, to apply
toward the payment of those obligations, canceling them by setoff, in accordance
with article 1655 et sqq. of the Civil Code, all funds, deposits, securities,
balance(s) held, maintained or received by Lenders in favor of Borrower,
originating in any account or deposit, as well as any sum or credit belonging
to
Borrower and in the possession of Lenders or required to be paid by them to
Borrower, thereby resulting in the partial or total cancellation of those
obligations owing to Lenders up to the lowest of such sums; to this end,
Borrower also authorizes Lenders irrevocably to conduct as many crediting and
debiting operations, foreign currency conversion or acts deemed necessary to
proceed to apply the said balances, sums and credits toward the payment of
the
owed sums. The above is notwithstanding any other authority that the laws or
administrative rules may grant or confer to Lenders. /ii/ If offsetting is
applicable as indicated in /i/ above, the respective Lender shall share with
the
rest of the Lenders the offset amount, making a prorated payment to each Lender
in accordance with the interests held by them in Outstanding Principal as of
such date, which payment shall be made on a subrogation basis as provided by
article 1610(5) of the Civil Code. As a result of the setoff and subrogation
payment mentioned above, Lenders shall maintain their ratable interests in
Outstanding Principal that would have corresponded to them had the said setoff
not been carried out.
4.
Application of Payments. Borrower states and accepts that any payments made
to
Lenders shall be applied to past-due debts in the following order: /i/ fees;
/ii/ default interest; /iii/ indemnifications; /iv/ taxes; /v/ general expenses;
/v/ legal expenses; /vi/ current interest contemplated by Subsection Three
2 of
this Section; and, /vii/ Outstanding Principal, proportionally, as applicable,
i.e. ratably to the installment of Outstanding Principal.
EIGHT.
Default Interest upon Delayed Performance of Borrower’s Obligations.
Indemnification.
1.
Payment of Default Interest. If Borrower defaults or merely delays and as from
the day following maturity, regardless of the cause and even if at no fault
on
its part, in the performance of any payment obligations hereunder, it shall
be
required to pay Lenders default interest as liquidated damages. Default interest
shall accrue on a daily basis on the outstanding amounts, calculated on the
basis of a 360-day year as a function of the number of days actually elapsed
in
delay, to be paid as from the date of the default or mere delay until the date
of actual payment.
2.
Rate
Applicable to Default Interest. To determine the interest rate applicable in
case of default or mere delay in the payment of any portion into which the
obligation is divided, past-due interest shall be compounded and the maximum
conventional interest permitted by law on non-adjustable cash loan operations
shall accrue on the new principal thus established, in effect as of the date
of
this Agreement or of default, at Lenders’ discretion.
12
3.
Compounding of Interest. The Parties agree that any current interest that
remains past-due and unpaid shall be compounded as from their original due
date
and, without any need for legal proceedings, shall accrue new interest at a
rate
equal to the default interest described in 2 above. Likewise, default interest
that remains unpaid shall be compounded every thirty days and, without any
need
for legal proceedings, shall accrue new interest at a rate equal to the default
interest described in 2 above.
4.
Indemnification. In the early termination assumptions hereunder, pursuant to
Subsection Eleven below, if Lenders receive or recover all or any part of the
Outstanding Principal on any date other than the last day of an Interest Period,
Borrower shall pay Lenders a sum equal to the difference, if any, between /i/
the additional interest that Borrower would have had to pay on the sum so
received or recovered if the same had accrued interest up to the last day of
the
Interest Period, and /ii/ the amount of interest to be paid on the last day
of
the Interest Period in question for a loan in Pesos, as published by the Chilean
Association of Banks and Financial Institutions, with identical duration or
as
similar as possible, with preference for longer periods over shorter ones,
to
the period that starts on the date of said receipt or recovery and ends on
the
last day of the Interest Period in question.
5.
The
foregoing is notwithstanding any other damages caused by Borrower as a result
of
the breach and any other rights accruing to Lenders in accordance herewith.
NINE.
Representations and Warranties by Borrower. Borrower hereby represents and
warrants in favor of Lenders as follows:
/i/
It is
a company duly organize and validly existing under the laws of the Republic
of
Chile; it has the necessary legal capacity to do business and has obtained
the
licenses, permits, authorizations and approvals necessary to own its assets
and
carry out its respective activities, unless the absence of said licenses,
permits and authorizations do not have and are not reasonably expected to have
a
Material Adverse Impact;
/ii/
To
the best of its knowledge and belief, as of this date no judicial, arbitration
or administrative proceedings have been instituted against it by any court,
panel or entity, that have or are reasonably expected to have a Material Adverse
Impact;
/iii/
It
has no financial obligations pending or other material obligation or liability,
contingent or otherwise, not declared in the FECU as of December 31, 2007;
/iv/
All
written information provided to Lenders in connection with this Agreement was
correct and true in all material respects when provided and at present, without
any material misstatements;
/v/
Borrower is up to date in the payment of its taxes, duties, assessments, imposts
and other provisional payments, as well as performed in good faith its tax
obligations consistent with past practices except with regard to those the
payment or performance of which it shall have challenged in good faith through
timely legal proceedings in connection to which it is lawfully entitled to
postpone payment as long as a final binding judgment is not issued, provided
however that in such case the necessary provisions shall have been set up for
such liability and all legally provided requirements in connection with said
procedures shall have been met, unless those breaches do not have or are not
reasonably expected to have a Material Adverse Impact;
13
/vi/
No
legal proceedings have been instituted or threatened, and it has no knowledge
of
the institution or threat of such proceedings, against Borrower conducive to
having it adjudicated bankrupt or subject to liquidation, receivership, judicial
or non-judicial workouts;
/vii/
Borrower and its representatives have the authority and have obtained the
necessary authorities, powers and authorizations by requisite corporate action
to execute and deliver this Agreement as well as to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
have been duly authorized without requiring any additional resolution,
authorization or corporate action by Borrower for this Agreement to be valid
and
binding on Borrower;
/viii/
Directly or indirectly, Borrower holds fair title to the intellectual and
industrial property rights and items it needs to conduct its business, and
holds
the authorizations, concessions, licenses or permits necessary to operate said
property and rights as it has done until the date hereof, except with regard
to
any breaches or omissions that it may have incurred have not caused and are
not
reasonably expected to cause a Material Adverse Impact; and /ix/ Borrower
complies with the obligations imposed upon it by law, unless the failure to
comply with the same does not have or is not reasonably expected to have a
Material Adverse Impact.
TEN.
Affirmative and Negative Covenants of Borrower. In addition to the remaining
obligations assumed by Borrower hereunder and as long as any obligation by
Borrower remains pending hereunder, Borrower:
/i/
shall
not furnish collateral or personal guaranties to secure own and third-party
obligations over a substantial portion of its assets when said guaranties could
undermine the interests of Lenders, without the consent of the Majority
Shareholders. This prohibition excludes any guaranties required by law, those
inherent to its business and the personal guaranties of Borrower in favor of
its
subsidiaries and those designated to secure payment of the balance on the price
of any assets purchased hereafter on a deferred basis and furnished on the
same
assets;
/ii/
in
case of any merger with other companies, whether by creation or by absorption,
it shall have the surviving company –if applicable- assume each and every one of
the obligations imposed hereby on Borrower;
/iii/
in
case of a spin-off, it shall have all the companies arising from said spin-off
assume joint-and-several liability for the obligations under the Loan;
/iv/
if
its legal nature is altered, it shall have all the obligations hereunder apply
to the transformed company without any exception;
/v/
shall
endeavor so that the creation of a subsidiary should not have any effect on
the
obligations under the Loan, except in those aspects applicable to it by context.
Under no circumstances shall the creation of subsidiaries affect the rights
of
Lenders;
14
/vi/
shall send to the Agent Bank, signed by duly authorized signatories, the Annual
Report and annual, individual and consolidated Financial Statements, all duly
audited, and the quarterly Financial Statements, in FECU form, for Borrower
and
the Consolidated Borrower, once said documents are available and in any case
within 15 calendar days following the date on which the said FECU is filed
or
scheduled to be filed with the securities and Insurance Commission, whichever
is
first. Once the annual Financial Statements are approved at the relevant Annual
Shareholders’ Meeting, a copy of the minutes evidencing said approval shall be
sent to the Agent Bank within 30 days following their approval. The Parties
agree that Borrower’s accounting shall be audited by an auditing firm that is
included in the registry kept for these purposes by the Securities and Insurance
Commission pursuant to article 53 of the Stock Companies Law, and shall provide
the Agent Bank, as soon as practicable, access to and copies of any other
financial, technical or other information in connection with the business,
operations and situation of Borrower, which Borrower shall have made available
to the public in accordance with applicable regulations, whenever reasonably
required to do so by the Agent Bank;
/vii/
shall notify the Agent Bank in writing, as soon as it becomes aware of, and
in
any case within five bank Business Days from: /a/ the occurrence of any event
or
assumption of force majeure affecting this Agreement and reasonably expected
to
have a Material Adverse Impact; /b/ any breach of any provision hereof and
any
event or contingency likely to result in the termination or suspension of any
of
the provisions hereof or thereby otherwise rendering any obligations hereunder
null or unenforceable; /c/ any situation included in or reasonable expected
to
constitute any of the circumstances contemplated by Eleven below; and /d/ any
variation occurred or inaccuracy detected in the data, documents or information
provided to Lenders as an assumption for the execution of this Loan, reasonably
expected to cause an Material Adverse Impact;
/viii/
shall deliver to the Agent Bank copies of any notifications or documents that
are or could be relevant in the context of the rights of Lenders hereunder,
sent
to or received by Borrower, reasonably expected to cause an Material Adverse
Impact;
/ix/
shall promptly pay all taxes, duties, assessments, charges and social security
payments regarding which it a passive subject or required to bear the payment
thereof when due, except with regard to which it shall have challenged in good
faith through timely legal proceedings in connection to which it is lawfully
entitled to postpone payment as long as a final binding judgment is not issued,
provided however that in such case the necessary provisions shall have been
set
up for such liability and all legally provided requirements in connection with
said procedures shall have been met;
/x/
shall
keep accounting books, records and annotations in which complete, timely and
accurate entries shall be made in accordance with current regulations and
Chilean generally-accepted accounting practices;
/xi/
shall maintain and see that its subsidiaries maintain all the assets necessary
to conduct its business and operations in proper state of upkeep, ordinary
wear
and tear excepted, and shall maintain and have maintained insurance on said
assets with adequate coverage and in accordance with wholesale and retail market
practices;
15
/xii/
shall not materially alter its line of business or reduce its capital
significantly other than with the prior written consent of the Majority
Shareholders;
/xiii/
shall maintain a debt-equity ratio of less than 1.2x, defined as the ratio
between current liabilities accruing interest and equity, measured and
calculated on a quarterly basis on the consolidated Financial Statements,
submitted in time and form as required for the FECU. To this end: /y/ current
liabilities accruing interest are defined, as per the FECU format, as the
summation of accounts 5.21.10.10, 5.21.10.20, 5.21.10.30, 5.21.10.40,
5.21.10.50, 5.22.10.00 and 5.22.20.00; and /z/ equity is defined, as per the
FECU format, as the summation of minority interest –FECU account 5.23.00.00- and
equity –FECU account 5.24.00.00;
/xiv/
shall maintain a minimum coverage for financial expenses of 3.5x, defined as
the
ratio between operational results plus depreciation plus amortization of
intangibles and financial expenses, measured and calculated on a quarterly
basis
for the four consecutive quarters immediately preceding the calculation date,
on
the consolidated Financial Statements, submitted in time and form as required
for the FECU. To this end: /x/ operational results correspond, as per the FECU
format, to account 5.31.11.00; /y/ depreciation corresponds, as per the FECU
format, to account 5.50.30.05; and /z/ amortization of intangibles corresponds,
as per the FECU format, to account 5.50.30.10, and (iv) financial expenses
correspond, as pr the FECU format, to account 5.31.12.60.
/xv/
shall maintain consolidated total equity, account 5.24.00.00 on the FECU, in
the
sum of at least 13,000,000 Unidades de Fomento; /xvi/ shall maintain lien-free
assets in the sum of at least 1.3x the unpaid balance of Outstanding Principal;
/xvii/ shall not enter into transactions with related persons of Borrower on
other than arm’s length terms, as provided in article 89 of Law 18,046 on stock
companies. To this end, “Related Persons” are those defined as such in article
100 of Law 18,046 on securities markets.
ELEVEN.
Acceleration of Outstanding Principal; Events of Default; Termination of
Agreement:
1.
Events
of Default and Acceleration of the Loan. If, for any reason:
/i/
Borrower defaults or merely delays in delivering payment in time and form of
all
or part of any principal and/or interest due;
/ii/
Borrower breaches any of the affirmative or negative covenants assumed by it
hereunder;
/iii/
one
or more representations and warranties made by Borrower under Subsection Nine
of
this Section is willfully or negligently false, inaccurate or mistaken;
/iv/
if
in any judicial proceedings instituted against Borrower or its Relevant
Subsidiaries an attachment is levied in the equivalent in Pesos of 10,000,000
Dollars at the time of the attachment;
16
/v/
if
any State authority or entity or else any foreign public, state or governmental
authority imposes or decrees against Borrower or its Relevant Subsidiaries
fines
or monetary penalties equal to or in excess of 5% of its consolidated assets,
whether due to the breach of official standards or requirements, or for any
other reason. Then, provided that, in the case of /i/ above Borrower fails
to
deliver payment in time and form when due, or in the cases of /ii/ and/or /iii/
and/or /iv/ and/or /v/ above, and provided they occur with the knowledge, bad
faith or fault of Borrower, Borrower fails to cure said situations to the
satisfaction of the Majority Lenders within 10 calendar days from when the
Majority Lenders shall have demanded Borrower to perform; any of Lenders will
have the right to demand, at its discretion, the payment of the defaulted sums
or the payment of the entire obligation owed to it hereunder, in which case
said
obligations shall be totally and immediately due and payable, the entire debt
to
be deemed as past-due. In either case, from the date of the default or mere
delay until the date of actual payment, default interest shall accrue in
accordance with Subsection Eight 2 of this Section.
2.
Other
Events of Default. Notwithstanding the provisions of 1 of this Subsection
Eleven, the majority Lenders may likewise accelerate the obligations hereunder
and advise Borrower on said declaration in writing, and as a result of said
acceleration declare principal, interest and any other amount owed hereunder
as
immediately due and payable, in which case default interest shall accrue in
accordance with Subsection Eight 2 of this Section in any of the following
cases:
/i/
If
Borrower or Relevant Subsidiaries incur in a payment moratorium or suspend
their
payments or admit in writing to their inability to pay their debts, or make
a
general assignment or abandonment of their assets for the benefit of creditors;
or if any proceeding is instituted by or against Borrower or its Relevant
Subsidiaries in order to have the same adjudicated in bankruptcy or insolvency;
or if any proceeding is instituted by or against Borrower or Relevant
Subsidiaries conducive to their dissolution or liquidation, to call a meeting
of
creditors or restructure their liabilities, in accordance with any bankruptcy
law; or petitioning the appointment of a receiver, administrator or comparable
officer over Borrower or a substantial portion of its assets, in an amount
equal
to or greater than the equivalent in Pesos of 10,000,000 Dollars, including
Relevant Subsidiaries, or if Borrower or any Relevant Subsidiary adopts any
measure to allow any of the acts indicated hereinabove in this paragraph;
/ii/
If
Borrower or its Relevant Subsidiaries incur in any breach of payment obligations
to third parties, whether at law, in contract or otherwise, including but not
limited to tax, social security and labor obligations, or if with regard to
any
such obligations any event should occur which cases or is reasonably expected
to
cause the same to become due early, whether upon acceleration or otherwise,
for
amounts individually or on aggregate equal to or greater than the equivalent
in
Pesos of 10,000,000 Dollars, and said breach is not cured within 15 days from
the date of the breach; unless the shareholders of Borrower or of the respective
Relevant Subsidiary, as applicable, contribute the necessary funds to set up
a
provision for 100% of the claimed amounts, which contributions may be made
through capital increases or subordinated debt;
/iii/
if,
for any reason, Borrower or its Relevant Subsidiaries, throughout the effective
term of this Agreement, discontinue their businesses, agree to their
dissolution, liquidation, or incur in any legal grounds for liquidation or
dissolution;
/iv/
if
for any reason there should occur a Control Change;
17
/v/
if at
any time the corporate bylaws of Borrower are amended without first advising
said amendment in writing to the Agent Bank within 10 calendar days from the
modification and provided said amendments result in a Material Adverse Impact;
and
/vi/
If
the obligations of Borrower hereunder no longer rank pari passu with the
remaining unsecured liabilities of Borrower. 3. Certain Effects of Acceleration
or Termination of the Agreement. If, as provided in 1 and 2 above, Lenders
declare principal, interest and/or any other sum owed to Lenders hereunder
as
immediately due and payable, Borrower shall then immediately pay Lenders as
much
as it owes them whether for principal, interest, fees, indemnifications,
expenses or others, as if they were past-due, and without any need for a
judicial or non-judicial action or declaration whatsoever.
TWELVE.
Borrower hereby considers as indivisible all the obligations it recognizes
owing
and assumes hereby, and therefore each Lender may demand the payment of their
respective credits, in toto, from any of the successors or continuers of
Borrower, especially in the case of a spin-off of the company, as provided
in
articles 1526(4) and 1528 of the Civil Code.
SECTION
FOUR. Acts by Lenders. Notwithstanding the notifications or demands served
in
accordance with Section Thirteen below, the Parties expressly note that all
communications to be sent or received by Lenders in accordance herewith shall
be
sent or received by the Agent Bank, who for these purposes shall act both pro
se
as well as on behalf of the remaining Lenders.
SECTION
FIVE. Agent Bank. Banco de Chile shall act as the Agent Bank for the loan In
this regard, the Agent Bank shall not be under any obligation to carry out
any
act not expressly provided in this Agreement, unless otherwise expressly
provided allowing the same to act discretionally. It is hereby noted that the
Agent Bank shall not have any liability or obligation to demand performance
of
this Agreement, which is the individual responsibility of each Lender. The
Agent
Bank shall follow the instructions given in writing by Lenders, regarding the
performance of which the Agent Bank shall not exercise any discretion and shall
follow the same in strict adherence to the instructions in question. In any
case, the Agent Bank shall not be required to follow or act upon such
instructions if their performance could result in any legal liability against
it, or if said instructions are contrary to the law or to the provisions of
this
Agreement. The Agent Bank shall advise, as soon as practicable, each of Lenders,
any written notice received from Borrower and not sent directly to Lenders,
in
accordance with the terms hereof. The Agent Bank shall not liable for any action
carried out or omitted in connection herewith, unless said action or failure
to
act is due to the ordinary negligence of the Agent Bank. It is hereby noted
that
the Agent Bank shall not be under any obligation to: /i/ verify the authenticity
or veracity of the communications sent by the parties hereto through the Agent
Bank, and /ii/ review and/or verify that Borrower has performed its obligations
hereunder. Each Lender recognizes that, independently from the Agent Bank,
and
on the basis of the financial, economic and legal information provided by
Borrower, each Lender has conducted its own individual credit analysis of the
loan recognized as owed hereby. Banco de Chile has no bearing on the decision
of
each Lender to become a party to this Agreement. If the Agent bank sustains
any
losses, damages, expenses, including but not limited reasonable attorneys’ fees,
as a result of the actions or omissions resulting from the instructions issued
by the Majority Lenders in relation to this Agreement, Lenders who shall have
issued said instructions shall defend and hold the Agent Bank harmless, in
simply join fashion, from and against the aforementioned damages, unless, by
final judgment issued by a court of competent jurisdiction it is declared that
said claim, damage, loss, liability or expense has occurred due to the ordinary
negligence of the Agent Bank. To the extent that the Agent Bank shall have
agreed to the instruction given by the Majority Lenders, it shall not claim
any
indemnification for the damages caused thereby to the Agent Bank.
18
SECTION
SIX. Assignments. Only with the prior consent of Borrower not to be unreasonably
withheld, Lenders will be authorized to dispose of, assign and transfer their
rights hereunder to any third party, whether passing title or as security.
Borrower shall in any case be deemed to have given consent if within five days
from written demand by any of Lenders, Borrower shall not have granted or
withheld consent expressly. Likewise, consent shall be deemed granted if the
assignee of the respective transaction is a financial creditor of Borrower
and/or of its subsidiaries or related companies as of the date of the proposed
assignment. Borrower’s consent shall not be required if Borrower is in default
of any of its payment obligations hereunder. Other than with the prior written
consent of Lenders, Borrower shall not assign or transfer any of its rights
or
obligations contained herein. Lenders expressly accept that any assignment
to
third parties shall not entail an increase to the taxes that Borrower is
required to pay under the loan recognized as owed hereunder, and that if such
additional cost occurs, it shall be assumed by the respective Lender. These
assignments shall be previously advised by Lenders to Borrower.
SECTION
SEVEN. Amendments. No waiver of any provision hereof or of any instrument
delivered in accordance herewith, nor the consent for Borrower or Lenders to
act
differently shall be of any effect unless executed in writing and signed by
all
lenders and Borrower, and in such case said waiver or consent shall be effective
only in that particular case and for the specific purpose for which it was
granted.
SECTION
EIGHT. No Waiver. If Lenders or Borrower fail to exercise or delay in exercising
any of their rights hereunder shall not constitute a waiver of the same, and
no
separate or partial exercise of any right shall preclude the exercise of those
or any other rights. The remedies referred to herein are cumulative and do
not
exclude any other remedy recognized by law.
SECTION
NINE. Expenses and Costs. If any grounds for the termination hereof arise,
Borrower shall pay Lenders upon demand all reasonable costs and expenses
incurred by them in connection with the enforcement or preservation of any
right
hereunder.
SECTION
TEN. Section Headings. The headings given by the parties hereto to the various
provisions hereof have been included for ease of reference and readability
only,
without altering the meaning or scope of the section as a whole if different
from said headings.
19
SECTION
ELEVEN. 1. Notices and Demands. All notices, including change of domicile,
to be
made between the parties, except when other expressly provided herein, shall
be
served at the domicile of the other party first identified above, by means
of a
certified letter. 2. Information. Borrower hereby expressly and formally
authorizes Lenders to deliver to all the Related Persons of the latter, as
defined in article 100 of Law 18,045 on Securities Markets, economic, financial,
accounting and legal documentation and information on Borrower. Likewise, and
for the purposes of article 154 of the General Banking Law, Borrower hereby
expressly and formally authorizes Lenders to deliver, during the process devised
to assign or transfer this agreement, to any eligible assignee as indicated
in
Section Six, any information on Borrower and on this operation such as may
be
subject to the bank-client privilege or secrecy. Finally, Borrower authorizes
Lenders, to the extent permitted by applicable law, to transmit, process and
maintain outside Chile all or part of the information connected with this
Agreement provided the receiver of said information shall be a branch or
affiliate of Lenders. The foregoing applies in particular with regard to the
provisions under the General Banking Law regarding the bank-client privilege
or
secrecy. Nothing provided in this Section shall be interpreted or applied in
such a way as to imply Borrower’s obligation to breach any of the
confidentiality obligations to which the corporate information of the
Consolidated Borrower is subject under Law 18,045 on Securities Markets, or
law
18,046 on Stock Companies, and other applicable regulations. Nevertheless,
the
information of the Consolidated Borrower that is subject to confidentiality
obligations shall remain in confidence and Lenders shall assume the applicable
obligation to keep it in confidence, and hereby agree to protect and maintain
the same as such if it were required to be disclosed to a third party for the
aforementioned purposes.
SECTION
TWELVE. Business days and Calculation of Time Periods.
1.
Business Days: As used herein, “business days” shall mean Bank Business Days, as
defined in Section One above.
2.
Calculation of Time Periods: Time periods shall be calculated in Bank Business
Days, whenever so indicated, or in business days. In all other cases, time
periods shall be deemed stated in calendar days. Whenever any time period ends
on other than a Bank Business Day, the period shall be deemed to expire on
the
day immediately following Bank Business Day. The same rule shall apply whenever
the date on which Borrower is required to pay any sum to Lenders shall not
be a
Bank Business Day.
SECTION
THIRTEEN. Legislation and Jurisdiction. This Agreement shall be governed by
the
laws of Chile. The parties, waiving their own forum or any other to which they
could be entitled, submit for the resolution of al issues arising in connection
with the interpretation and performance of this Agreement to the competent
jurisdiction of the civil courts of law seated in the municipal district of
Santiago, in Santiago, Chile. Legal Capacities.-
The
legal
capacity of the representative of Distribución y Servicio D&S S.A. is
evidenced in an instrument of public record dated September 28, 2006, executed
at the Santiago Notarial Office of Xx. Xxxx Xxxxxxx Xxxxxx. The legal capacity
of the representatives of Banco de Chile is evidenced in instruments of public
record dated April 10, 2006, and April 14, 2008, both executed at the Santiago
Notarial Office of Xx. Xxxx Xxxxxxxxx Cash. The legal capacity of the
representatives of Banco Bilbao Vizcaya Argentaria, Chile is evidenced in
instruments of public record dated January 11, 2007, November 23, 2005, both
executed at the Santiago Notarial Office of Xx. Xxxx Xxxxxxx Xxxxxx. The legal
capacity of the representatives of Corpbanca is evidenced in instruments of
public record dated September 7, 2006, and February 13, 1996, executed at the
Santiago Notarial Office of Xx. Xxxxxxxx Xxxxxxxx Xxxxxxxx and of Xx. Xxxxxxx de
xx Xxxxxx Fabres, respectively. The legal capacity of the representatives of
Banco Itaú Chile is evidenced in instruments of public record dated August 8,
2007 and December 19, 2007, respectively, both executed at the Santiago Notarial
Office of Xx. Xxxxxxxx Xxxx Xxxxxxxxx. The legal capacity of the representatives
of Scotiabank Sud Americano is evidenced in instruments of public record dated
July 2, 2004, and April 17, 2002, both executed at the Santiago Notarial Office
of Xx. Xxxxxxx Xxxx Xxxxxxx. The legal capacity of the representatives of Banco
Santander- Chile is evidenced in instruments of public record dated July 25,
2005, and December 24, 2007, both executed at the Santiago Notarial Office
of
Mr. Xxxxx de la Fuente Xxxxxxxxx. All of the above legal capacities are not
inserted herein as they are known to the parties hereto and to the undersigned
Notary.
20
A
record
is made of the following documents: - CERTIFICATES
(a)
Banco
Bilbao Vizcaya Argentaria Chile. Branch: 0143. CERTIFICATE Law 20,130: As
provided in law 20,130 published in the Official Gazette on 11/7/2006, and
for
the tax-exemption purposes set out in article 24(17) of DL 3,475/80, Banco
BBVA
hereby certifies the amount totaling the payment of the loan detailed below:
Taxpayer Nr. 0000000000-2. NAME :
DISTRIBUCION Y SERVICIO D&S S.A. NOTE Nr. 05040143919600001197. OPERATION
Nr. 05040143919600001197. DATE OF ORIGINAL GRANTING: 24-05-2007. LAST DUE DATE:
22-05-2008. PRINCIPAL AMOUNT: 8,200,000,000.00. PAYMENT DETAILS. PRINCIPAL
AMOUNT 8,200,000,000.00 AMOUNT OF CURRENT INTEREST (PAYMENT DATE) 49,145,133.00
PREPAYMENT OR OTHER FEES UNDER ART. 24(17) OF D.L. 3475 8,249,145,333.00 DEFAULT
AND OTHER INTEREST. TOTAL PAYMENT 8,249,145,333.00. SETTLEMENT DATE: 20-05-2008.
STAMP TAX PAID. TAX BASE. APPLIED RATE 1.3375%. TAX AMOUNT PAID 112,145,472.00.
FOLIO AND DATE OF F-24 EVIDENCING PAYMENT OF TAX. TOTAL OR PARTIAL EXEMPTION
RULE. DATE OF ISSUE: 20-05-2008 (an illegible signature appears). SIGNED FOR
BANCO BBVA Banco Bilbao Vizcaya Argentaria, Chile”.
(b)
Banco
Santander- Chile. Folio Nr. 2008-123144. CERTIFICATE Law 20,130: As provided
in
law 20,130 published in the Official Gazette on 11/7/2006, and for the
tax-exemption purposes set out in article 24(17) of DL 3,475/80, Banco Santander
Chile hereby certifies the amount totaling the payment of the loan detailed
below: Taxpayer Nr. 96439000-2. NAME: DIST. Y SERV. D&S S.A. Note: Nr.
00350181420007481623. Date of Instrument (underscore) Notarial Office
(underscore). Operation Nr. 420008548349. Date of original granting 29/05/2008.
Last due date 22/05/2008. Principal Amount (Amount Granted) 20,000,000,000.00
Payment Details. 1.- Principal Amount (Outstanding Balance) 20,000,000,000.00.
Original Currency PESOS. 2.- Amount of current interest (payment date) 0.00.
3.-
Prepayment Fee 0.00. 4.- Subtotal under Art. 24(17) DL 3475 (1+2+3)
20,000,000,000.00. 5.- default interest 0.00. 6.- Default Loan Collection
Expenses 0.00. Total Payment(4+5+6) 20,000,000,000.00. Payment date 29/05/2008.
Stamp Tax Paid. Tax base 20,000,000,000.00. Applied rate 1.40000. Amount of
tax
paid 290,903,124.00. Folio and date of F.4 evidencing the payment of taxes
3977516. Partial or total exemption rule (if applicable). NO EXEMPTION. Date
of
issue: 29-04-2008. Illegible signature. Mario Xxxxxx Xxxxx Xxxx. Customer
Management Department Banco Santander Chile (CUSTOMER COPY). PLEASE BE INFORMED
AS TO THE STATE GUARANTEE ON DEPOSITS IN YOUR BANK OR AT XXX.XXXX.XX.
21
(c)
Banco
Santander- Chile. Folio Nr. 2008-123147. CERTIFICATE Law 20,130: As provided
in
law 20,130 published in the Official Gazette on 11/7/2006, and for the
tax-exemption purposes set out in article 24(17) of DL 3,475/80, Banco Santander
Chile hereby certifies the amount totaling the payment of the loan detailed
below: Taxpayer Nr. 96439000-2. NAME: DIST. Y SERV. D&S S.A. Note: Nr.
00350181420008013798. Date of Instrument (underscore) Notarial Office
(underscore). Operation Nr. 420008548390. Date of original granting 7/11/2007.
Last due date 22/05/2008. Principal Amount (Amount Granted) 8,000,000,000.00
Payment Details. 1.- Principal Amount (Outstanding Balance) 8,000,000,000.00.
Original Currency PESOS. 2.- Amount of current interest (payment date) 0.00.
3.-
Prepayment Fee 0.00. 4.- Subtotal under Art. 24(17) DL 3475 (1+2+3)
8,000,000,000.00. 5.- default interest 0.00. 6.- Default Loan Collection
Expenses 0.00. Total Payment(4+5+6) 8,000,000,000.00. Payment date 29/05/2008.
Stamp Tax Paid. Tax base 8,000,000,000.00. Applied rate 0.80000. Amount of
tax
paid 64,757,370.00. Folio and date of F.4 evidencing the payment of taxes NO
FOLIO. Partial or total exemption rule (if applicable). NO EXEMPTION. Date
of
issue: 29-04-2008. Illegible signature. Mario Xxxxxx Xxxxx Xxxx. Customer
Management Department Banco Santander Chile (CUSTOMER COPY). PLEASE BE INFORMED
AS TO THE STATE GUARANTEE ON DEPOSITS IN YOUR BANK OR AT XXX.XXXX.XX.
(d)
Banco
Santander- Chile. Folio Nr. 2008-123151. CERTIFICATE Law 20,130: As provided
in
law 20,130 published in the Official Gazette on 11/7/2006, and for the
tax-exemption purposes set out in article 24(17) of DL 3,475/80, Banco Santander
Chile hereby certifies the amount totaling the payment of the loan detailed
below: Taxpayer Nr. 96439000-2. NAME: DIST. Y SERV. D&S S.A. Note: Nr.
00350181420008339618. Date of Instrument (underscore) Notarial Office
(underscore). Operation Nr. 420008548446. Date of original granting 12/02/2008.
Last due date 22/05/2008. Principal Amount (Amount Granted) 25,000,000,000.00
Payment Details. 1.- Principal Amount (Outstanding Balance) 25,000,000,000.00.
Original Currency PESOS. 2.- Amount of current interest (payment date) 0.00.
3.-
Prepayment Fee 0.00. 4.- Subtotal under Art. 24(17) DL 3475 (1+2+3)
25,000,000,000.00. 5.- default interest 0.00. 6.- Default Loan Collection
Expenses 0.00. Total Payment(4+5+6) 25,000,000,000.00. Payment date 29/05/2008.
Stamp Tax Paid. Tax base 25,000,000,000.00. Applied rate 0.42500. Amount of
tax
paid 106,501,525.00. Folio and date of F.4 evidencing the payment of taxes
NO
FOLIO. Partial or total exemption rule (if applicable). NO EXEMPTION. Date
of
issue: 29-04-2008. Illegible signature. Mario Xxxxxx Xxxxx Xxxx. Customer
Management Department Banco Santander Chile (CUSTOMER COPY). PLEASE BE INFORMED
AS TO THE STATE GUARANTEE ON DEPOSITS IN YOUR BANK OR AT XXX.XXXX.XX. Consistent
with their original. – IN WITNESS WHEREOF, he parties appearing set their
hands hereunto following a reading of these presents. A copy as provided and
the
instrument was annotated in the NOTARIAL RECORDS BOOK under the stated number.
I
ATTEST.
/s/
Xxxxxx Xxxxxxxx
Xxxx /s/
Xxxx X. Xxxxxxxxx Richani
1.-
XXXXXX XXXXXXXX XXXX 2.- XXXX X. XXXXXXXXX XXXXXXX
both
on
behalf of XXXXX XX XXXXX
00
/s/ Xxxxxxxxx Xxxxx
Xxxxx
/s/ Xxxxxx Xxxxxxxxxxx Xxxxxx
3.-
XXXXXXXXX XXXXX XXXXX 4.- XXXXXX XXXXXXXXXXX XXXXXX
both
on
behalf of BANCO BILBAO VIZCAYA ARGENTARIA, CHILE
/s/
Xxxxxx
Xxxxxxxx-Xxxxxx
/s/ Xxxxxxxxx Xxxxxx Xxxxxxxxx
5.-
XXXXXX XXXXXXXX-XXXXXX 6.- XXXXXXXXX XXXXXX XXXXXXXXX
both
on
behalf of BANCO ITAU CHILE
/s/ Cristián Chauriye
Cassis
/s/ Xxxxxxxx Xxxxxxx Xxxxxxxx
7.-
XXXXXXXX CHAURIYE CASSIS 8.- XXXXXXXX XXXXXXX XXXXXXXX
both
on
behalf of CORPBANCA
/s/ Xxxxxx Xxxxx
Xxxxxx
/s/ Xxxxxx Xxxxxxx Armada
9.-
XXXXXX XXXXX XXXXXX 10.- XXXXXX XXXXXXX ARMADA
both
on
behalf of SCOTIABANK SUD AMERICANO
/s/ Xxxxxxxxx Xxxxxxxx
Harismendy
/s/ Xxxxxxx Xxxxxx Xxxxx
11.-
XXXXXXXXX XXXXXXXX XXXXXXXXXX 12.-XXXXXXX XXXXXX XXXXX
both
on
behalf of BANCO SANTANDER-CHILE
/s/ Xxxxxx Xxxxx Sfeir
13.-
XXXXXX XXXXX
XXXXX
on
behalf
of DISTRIBUCIÓN Y SERVICIO D&S S.A.
23
