Loan Agreement RB IFC Nov 2012
Loan Agreement RB IFC Nov 2012
Loan Agreement
between
and
NY:14541588.9
TABLE OF CONTENTS
Article/
Section Item Page No.
ARTICLE IV Miscellaneous...............................................................................18
Section 4.01. Notices ...................................................................................18
Section 4.02. Term of Agreement................................................................18
Section 4.03. Saving of Rights.....................................................................18
Section 4.04. Reinstatement.........................................................................19
Section 4.05. Enforcement ...........................................................................19
Section 4.06. Successors and Assignees ......................................................19
Section 4.07. Disclosure of Information ......................................................19
Section 4.08. Amendments, Waivers and Consent ......................................19
Section 4.09. Counterparts ...........................................................................19
Section 4.10. English Language...................................................................19
LOAN AGREEMENT
This LOAN AGREEMENT, dated as of November 14, 2012 (the
"Agreement"), is entered into between RECAUDO BOGOT SAS, a corporation
organized and existing under the laws of the Republic of Colombia (the
"Borrower"); and INTERNATIONAL FINANCE CORPORATION, an
international organization established by Articles of Association among its
member countries, including the Republic of Colombia (the "Lender" or "IFC").
RECITALS
WHEREAS, the Borrower has requested the Lender to provide the loan
described in this Agreement to finance the construction, completion, ownership,
operation, management and development of the Project; and
WHEREAS, on or about the date hereof, the Borrower, the Lender and
certain other parties have entered into the Common Terms Agreement; and
ARTICLE I
"Dollar Default Period" with respect to any Dollar payment due and unpaid
under Section 2.06 (Default Interest Rate) and so long
as such payment remains due and unpaid, each period
beginning on an Interest Payment Date and ending on
the day immediately before the next following Interest
Payment Date, except in the case of the first period
applicable to any Dollar payment due and unpaid
under Section 2.06 (Default Interest Rate) when it
means the period beginning on the date on which that
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"EMTA COP Rate" the EMTA COP Indicative Survey Rate, which shall,
for any determination date, be the Colombian
Peso/U.S. Dollar Specified Rate for U.S. Dollars,
expressed as the amount of Pesos per one Dollar, for
settlement on the same day, as published on the web
site of the EMTA (http://www.emta.org) at
approximately 11:30 a.m., Bogot time, or as soon
thereafter as practicable, on such determination date;
"Loan" the loan specified in Section 2.01 (The Loan) or, as the
context requires, its principal amount from time to
time outstanding, including with respect to any
Colombian Peso-linked Disbursements, the aggregate
Notional Colombian Peso Principal Amounts
outstanding;
"Loan Consolidation (i) the first Interest Payment Date after the Loan
Date" has been fully disbursed (or the undisbursed
balance of the Loan has been cancelled pursuant
to Section 2.09 (Suspension and Cancellation);
or
(ii) in the event that the first day on which the Loan
has been fully disbursed (or the undisbursed
balance of the Loan has been cancelled pursuant
to Section 2.09 (Suspension and Cancellation)
falls less than fifteen (15) days before an
Interest Payment Date, the second Interest
Payment Date following the first date on which
the Loan has been fully disbursed (or the
undisbursed balance of the Loan has been so
cancelled);
"Maximum Dollar has the meaning set forth in Section 2.01 (The Loan);
Amount"
"Relevant Spread" 4.5% (four and a half percent) per annum; and
Section 1.03. Conflict with Common Terms Agreement. In the event of any
conflict between the terms of this Agreement and the terms of the Common
Terms Agreement, the terms of this Agreement will prevail as between the parties
to this Agreement.
Section 1.04. Payments in respect of Colombian Peso-linked Loan. (a) For the
avoidance of doubt, and for purposes of calculating the amount of any interest or
principal payment due in relation to a Colombian Peso-linked Disbursement, the
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ARTICLE II
The Loan
(b) The Borrower may request the Loan in the form of one or more
linked Colombian Peso-linked Disbursements.
(b) Unless otherwise agreed between the Borrower and IFC, each
Colombian Peso-linked Disbursement shall be made by IFC in Dollars to the
Borrower's account at a bank designated by the Borrower and acceptable to IFC,
as specified in the Borrower's Disbursement Request.
Section 2.04. Interest. (a) Subject to Section 2.05 (Default Rate Interest) of this
Agreement, the Borrower shall, on each Interest Payment Date, pay interest on the
principal amount of the Loan outstanding during the immediately preceding
Interest Period at the relevant interest rate specified in Section 2.04(b); provided
that with respect to any Colombian Peso-linked Disbursement made less than
fifteen (15) days before an Interest Payment Date, interest shall be paid on the
second Interest Payment Date following the date of that Colombian Peso-linked
Disbursement. Interest shall accrue from day to day and be calculated on the
basis of a 360-day year for the actual number of days in each Interest Period.
Subject to Section 1.04(b), for purposes of calculating interest due on any Interest
Payment Date, the Dollar Equivalent of the relevant Colombian Peso amount shall
be determined two (2) Bogota and New York Business Days prior to that Interest
Payment Date.
(c) The determination by the Lender, from time to time, of the relevant
interest rate applicable to each Colombian Peso-linked Disbursement shall be
final and conclusive and bind the Borrower (unless the Borrower shows to the
Lender's satisfaction that the determination involves manifest error).
which shall be the sum of six (6) months LIBOR determined on the first day of
the Dollar Default Period, the Relevant Spread and two percent (2%).
(b) Interest at the rate referred to in paragraph (a) above shall accrue
from the date on which payment of the relevant overdue amount became due until
the date of actual payment of that amount (as well after as before judgment), and
shall be payable by the Borrower on demand by the Lender or, if not demanded,
on each Interest Payment Date falling after any such overdue amount became due.
Section 2.06. Repayment. (a) The Borrower shall repay the Loan in
accordance with Section 2.05 (Repayment) of the Common Terms Agreement,
provided that, each repayment of the Loan shall be of the Dollar Equivalent of the
Notional Colombian Peso Principal Amount by which the outstanding amount of
the Loan is being repaid as determined (subject to Section 1.04(b)) two (2) Bogota
and New York Business Days prior to the relevant Interest Payment Date.
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(b) Any principal amount of the Loan repaid under this Agreement
may not be re-borrowed.
Section 2.07. Prepayment. (a) The Borrower may prepay the Loan
in accordance with Section 2.06 (Voluntary Prepayment) of the Common Terms
Agreement, provided that, when applied to this Agreement such Section 2.06
(Voluntary Prepayment) shall be deemed modified in the following respects:
(b) The Borrower may request that the Lender cancel the undisbursed
portion of the Loan in accordance with Section 2.11 (Cancellation by the
Borrower) of the Common Terms Agreement, provided that, when applied to this
Agreement, such Section 2.11 (Cancellation by the Borrower) of the Common
Terms Agreement shall be modified in the respect that the Borrower may not
request cancellation of the undisbursed portion of the Loan during any Rate
Setting Period.
Section 2.09. Fees and Other Payments. (a) The Borrower shall
pay to the Lender a commitment fee in Dollars:
(i) at the rate of one per cent (1%) per annum on that part of
the Loan that from time to time has not been disbursed or
canceled, accruing on and from the date of this Agreement,
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(ii) pro rated on the basis of a 360-day year for the actual
number of days elapsed, and
Section 2.11. Unwinding Costs. (a) If IFC incurs any cost, expense
or loss as a result of the Borrower:
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then the Borrower shall, within five (5) days after receipt of written notice thereof
from IFC, pay to IFC the amount that IFC from time to time notifies in writing to
the Borrower (with a copy to all other Senior Lenders) as being the amount of
those costs, expenses and losses incurred.
(b) For the purposes of this Section, costs, expenses or losses include
any premium, penalty or expense incurred to liquidate or obtain third party
deposits, borrowings, hedges or swaps in order to make, maintain, fund or hedge
all or any part of any Colombian Peso-linked Disbursement or any existing
Colombian Peso/Dollar swap related to any Colombian Peso-linked
Disbursement, or to provide for the termination of any Colombian Peso/Dollar
swap in connection with the delivery of any notice to prepay or any payment of
all or part of the Loan upon acceleration.
ARTICLE III
Common Terms
(b) The Borrower acknowledges that the Lender enters into this
Agreement and the other Financing Documents on the basis of, and in full
reliance on, each of the representations and warranties referred to in Section 3.01
(Representations and Warranties) of the Common Terms Agreement.
Section 3.03. Covenants. (a) So long as any amount of the Loan remains
available for disbursement or any amount is outstanding under any of the
Financing Documents, the covenants set out in Article V (Particular Covenants)
of the Common Terms Agreement shall, with the exception of Section 5.01(f)
(Access) of the Common Terms Agreement which shall be replaced for the
purposes of this Agreement by Section 3.03(b) of this Agreement, apply herein
and be made by the Borrower, mutatis mutandis, for the benefit of the Lender as if
set out in this Agreement in full.
(b) Unless the Lender otherwise agrees, the Borrower shall, upon the
Lender's request, and with reasonable prior notice to the Borrower, permit
representatives of the CAO, during normal office hours, to:
(i) visit any of the sites and premises where the business of the
Borrower is conducted;
provided that (i) no such reasonable prior notice shall be necessary if an Event of
Default or Potential Event of Default is continuing or if special circumstances so
require and (ii) such access shall be for the purpose of carrying out the CAO's
Role.
Section 3.04. Events of Default. (a) The events and circumstances defined as
"Events of Default" in Section 6.02 (Events of Default) of the Common Terms
Agreement shall each constitute an Event of Default under this Agreement.
ARTICLE IV
Miscellaneous
Section 4.02. Term of Agreement. This Agreement shall continue in force until
all Obligations owed to the Senior Lenders under the Financing Documents have
been fully and indefeasibly paid in accordance with their respective provisions.
Section 4.03. Saving of Rights. Section 8.01 (Saving of Rights) of the Common
Terms Agreement shall apply herein, mutatis mutandis, as if set out in this
Agreement in full (and as if each reference therein to "each Senior Lender", "any
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Senior Lender" or "the Senior Lenders" were a reference to the Lender and each
reference to "this Agreement" or "the Financing Documents" were a reference to
this Agreement).
Section 4.05. Enforcement. (a) This Agreement is governed by, and shall be
construed in accordance with, the laws of the State of New York, United States of
America.
Section 4.06. Successors and Assignees. (a) This Agreement binds and benefits
the respective successors and assignees of the parties. However, the Borrower
may not assign or delegate any of its rights or obligations under this Agreement
without the prior consent of the Lender.
(b) The Lender may sell, transfer, assign, novate or otherwise dispose
of all or part of its rights or obligations under this Agreement without the
Borrower's consent.
Section 4.08. Amendments, Waivers and Consent. Any amendment or waiver of,
or any consent given under, any provision of this Agreement shall be in writing
and, in the case of an amendment, signed by the parties to this Agreement.
SCHEDULE 1
(See Section 1.01 (Definitions) and Section 2.02(a)(ii) of the Loan Agreement)
2. The Borrower is hereby notified that it can deliver to IFC, within a period
of forty five (45) days from the date of this notice, Disbursement Limit
Order Notice(s) in accordance with the terms of the Loan Agreement.
3. This notice shall remain valid and effective for a period of forty five (45)
days from the date hereof unless withdrawn or cancelled by IFC during
such period in accordance with the terms of the Loan Agreement.
Yours faithfully,
INTERNATIONAL FINANCE CORPORATION
By: _________________________
Authorized Representative
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SCHEDULE 2
(FORM OF DISBURSEMENT LIMIT ORDER NOTICE)
(See Section 1.01(Definitions) and Section 2.02(a)(iii) of the Loan Agreement)
[DATE]
(unless the Borrower shows to IFC's satisfaction that the determination involves
manifest error).
Yours truly,
By: _________________________
Authorized Representative
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SCHEDULE 3
(FORM OF CONFIRMATION)
(See Section 2.02(d) of the Loan Agreement)
[DATE]
Subject to Sections 1.04(b) and 3.04(c) of the Loan Agreement, the Dollar
Equivalent of any payment of principal and/or interest on any Colombian Peso-
linked Disbursement or the Loan shall be determined on the second (2nd) Bogota
and New York Business Day prior to the relevant Interest Payment Date.
Other: ______________________
4
Amount in Dollars will be specified.
5
Both the Notional Colombian Peso Principal Amount and a Notional Colombian
Peso/Dollar Exchange Rate will be specified.
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INTERNATIONAL FINANCE
CORPORATION
By: _________________________
Authorized Representative
By: _________________________
Authorized Representative
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SCHEDULE 4
(METHODOLOGY FOR CALCULATION OF THE REDEPLOYMENT
COSTS OF THE COLOMBIAN PESO-LINKED LOAN)
(See Section 2.08(a)(iii) of this Agreement)
1. The redeployment cost equals the Dollar Equivalent of the amount in
excess of zero, if any, obtained by deducting (x) the Present Value of the
Available Income Stream of the prepaid amount from (y) the Present
Value of the Original Income Stream of the prepaid amount.
2. For purposes of this Agreement:
(a) the "Original Income Stream of the prepaid amount" means the
aggregate amount of interest originally scheduled to be paid on the
Notional Colombian Peso Principal Amount by which any
Colombian Peso-linked Disbursement is being reduced as a result
of prepayment from the date of prepayment (or in the case of
acceleration, from the date of the notice delivered pursuant to
Section 3.04(b) (Events of Default)) until the final maturity date of
the prepaid Disbursement, calculated based solely on the relevant
Colombian Peso-linked Base Rate; provided that if more than one
(1) Colombian Peso-linked Disbursement has been made, the
applicable interest rate shall be the weighted average of all the
Colombian Peso-linked Base Rates then in effect, calculated using
the methodology set forth in clause (i) of the definition of Blended
Colombian Peso-linked Rate set forth in Section 1.01 (Definitions)
of this Agreement;
(b) the "Available Income Stream of the prepaid amount" means the
aggregate amount of interest that would have accrued on the
Notional Colombian Peso Principal Amount by which any
Colombian Peso-linked Disbursement is being reduced as a result
of prepayment from the date of prepayment (or in the case of
acceleration, from the date of the notice delivered pursuant to
Section 3.04(b) (Events of Default)) until the final maturity date of
the prepaid Disbursement, calculated at a fixed interest rate equal
to the prevailing Peso/Dollar swap market equivalent of six (6)
months LIBOR (for a swap transaction whereby IFC pays US
Dollars and receives Pesos from the swap counterparty, based on
the amortization schedule of the Notional Colombian Peso
Principal Amounts by which the Colombian Peso-linked
Disbursement is being reduced, as determined by IFC in its sole
discretion. The rate will be determined two (2) Bogota and New
York Business Days prior to the date of prepayment (or in the case
of acceleration, two (2) Bogota and New York Business Days prior
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