Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
This SYNDICATED LOAN AGREEMENT is made and executed this 15th day of
November by and between:
principal office and place of business at the 21st Floor, LBP Plaza,
1598 M.H. del Pilar, Ermita, Manila (LBP); and
- and -
- with
WHEREAS, the BORROWER has requested the LENDERS for a five (5) year loan
in the principal amount of PHILIPPINE PESOS SIX HUNDRED MILLION
(Php600,000,000.00) for the purpose of financing the BORROWERs working
capital requirements;
WHEREAS, the LENDERS are willing to provide such loan to the BORROWER
upon the terms and conditions herein set forth which the BORROWER hereby
accepts;
SECTION 1. DEFINITIONS
As used herein, the following terms shall have the following meanings:
Availability Period shall mean the period from the date hereof up to and
including the earliest of (i) one (1) month from the date of execution of this
Agreement, (ii) the date the Commitment is fully availed of by the BORROWER,
or (iii) the date the Commitment terminates in accordance with the terms of this
Agreement. During this period, staggered availments are allowed.
Business Day shall mean a day on which the principal offices of the LENDERS
and the BORROWER in Makati City and Manila are open for business.
BSP shall mean the Bangko Sentral ng Pilipinas or any governmental authority
that succeeds to the functions thereof.
Event of Default shall mean any one of the events specified in Section 7.01.
Interest Payment Date shall mean the last day of an Interest Period.
Interest Period shall mean the period commencing on the date of initial
Borrowing and having a duration of three (3) months and each period thereafter
commencing upon the expiry of the immediately preceding Interest Period and
having a duration of three (3) months; provided, that the first Interest Period
with respect to a Borrowing subsequent to the initial Borrowing shall commence
on the date of such subsequent Borrowing and shall end on the last day of the
current Interest Period to synchronize all subsequent Interest Periods; provided,
finally, that the last Interest Payment Date shall coincide with the full repayment
of the Loan.
Interest Rate shall mean the fixed rate of ELEVEN AND 3,135/10,000
PERCENT (11.3135 %) INTEREST per annum.
Loan shall mean the aggregate principal amount of PHILIPPINE PESOS SIX
HUNDRED MILLION (Php600,000,000.00) granted by the LENDERS to the
BORROWER hereunder, or (as the context may require) the principal amount
thereof from time to time outstanding.
Loan Documents shall mean collectively this Agreement and the Note(s).
Peso/s and the sign Php shall mean the legal currency of the Republic of the
Philippines.
Repayment Date shall mean the date for the payment of the Loan in full which
shall be five (5) years from initial Borrowing.
[5]
Subsidiary shall mean, in relation to any person at any particular time, any
other person which is then Controlled, or more than 50% of whose issued equity
share capital is then beneficially owned, directly or indirectly, by that person.
For this purpose, one person being Controlled by another means that the other
(whether directly or indirectly and whether by the ownership of share capital,
the possession of voting power, contract or otherwise) has the power to appoint
and remove all or the majority of the members of the Board of Directors or other
governing body of that person or otherwise controls or has the power to control
the affairs and policies of that person (and Control shall be construed
accordingly).
1.02 Construction
The headings in this Agreement are inserted for convenience only and shall be
ignored in construing this Agreement. Unless the context otherwise requires,
words denoting the singular number shall include the plural and vice versa, and
words denoting persons shall include corporations, partnerships, joint ventures,
trusts, unincorporated business organizations and any government or any
agency or political subdivision thereof. References to Sections, Schedules and
Exhibits are to be construed as references to the Sections and Schedules of, and
Exhibits to, this Agreement.
2.01 Loan
Subject to the terms and conditions of this Agreement, the LENDERS agree to
allow drawdowns on their respective Commitments to the BORROWER on any
Business Day during the Availability Period. The LENDERS may, for any cause
or reason and without notice to the BORROWER, terminate this Agreement to
lend, without prejudice to any obligation already incurred by the BORROWER
under this Agreement.
[6]
2.03 Note
The Loan shall be evidenced by the Note(s) of the BORROWER. The provisions
of the Note(s) once executed shall be complemented by the terms and conditions
of this Agreement; Provided, however, that in case of conflict between the
Note(s) and this Agreement, this Agreement shall prevail.
2.04 Interest
a. The BORROWER shall pay interest on the Loan outstanding from time to
time on each Interest Payment Date for the Interest Period then ending at
the rate equal to the Interest Rate. If any Interest Payment Date would fall
[7]
on any day, which is not a Business Day, the interest shall be payable on
the next succeeding Business Day.
c. All payments for interest and penalties pursuant to this Section 2.04 shall
be paid directly to each LENDER and computed on the basis of a three
hundred sixty (360) day year and on the actual number of days elapsed.
2.05 Repayment
The BORROWER shall repay the Loan in full on the Repayment Date which shall
be five (5) years from initial Borrowing. On the Repayment Date, the
BORROWER shall directly remit to each LENDER or to such party as may be
authorized by the LENDER its proportionate share in the Loan.
2.06 Prepayments
The BORROWER may prepay or preterminate the Loan, in full or in part, subject
to the following conditions:
a. the BORROWER shall give at least thirty (30) calendar days irrevocable
prior written notice to the LENDERS of the amounts and the date (which
shall be a Business Day) of such prepayment;
e. the BORROWER shall pay accrued interest on the amount prepaid and
any incremental tax;
The books of the respective LENDERS shall be deemed final and conclusive
evidence concerning the amount due them from the BORROWER in the absence
of manifest error.
The proceeds of the Loan shall be used exclusively to finance the BORROWERs
working capital requirements.
a. All payments due the LENDERS hereunder or under the Note(s), whether
of principal, interest, penalties, fees or otherwise, shall be made without
setoff or counterclaim, and free and clear of and without any deduction or
withholding on account of any present or future taxes, duties or other
charges (excluding taxes imposed on the overall income of the LENDERS),
imposed by the Republic of the Philippines or any political subdivision or
taxing authority thereof, all of which shall be for the account of the
BORROWER and paid by it when due. If the BORROWER shall be
required by law to make any deduction or withholding in respect of taxes
from any payment hereunder, the sum payable shall be increased as will
result in the receipt by the LENDERS, after such deduction or
withholding, of the amount that would have been received if such
deduction or withholding had not been required. If the BORROWER shall
[9]
pay any tax, charge or assessment for the account of the LENDERS as
provided herein, including withholding taxes or deductions pursuant to
this Section 3.01(a), the BORROWER shall forward to each of the
LENDERS copies of official receipts or other evidence acceptable to the
LENDERS establishing the rate and payment of taxes within ten (10)
calendar days of such payment.
b. In the event that the LENDERS shall be required to pay taxes, levies,
stamps, duties, filing fees and other fees or charges imposed by any taxing
authority of the Republic of the Philippines on or with regard to the
execution, formalization or perfection of any documentation contemplated
hereunder or delivered pursuant hereto, the BORROWER shall, upon
demand, reimburse the LENDERS for such taxes, levies, stamps, duties,
fees or charges.
c. The BORROWER shall continue to be liable for taxes under this Section
3.01 notwithstanding any subsequent grant of tax exemptions to the
BORROWER by legislation or grant of any relevant government
authorities; Provided, however, that in the event the grant of tax
exemptions to the BORROWER will not shift the burden of the tax to the
LENDER, then the BORROWER may be released from its liability for such
tax.
d. The BORROWERs obligations under this Section 3.01 shall survive the
repayment of the Loan to the extent that the obligations hereunder have
not been fully discharged by the BORROWER to the prejudice of the
LENDERS.
a. In the event that there shall hereafter occur any change in any applicable
law, rule or regulation or in the interpretation or administration thereof,
which shall increase (i) the cost to the LENDERS of maintaining any
reserves or special deposits against the Loan or (ii) any other cost of
complying with any law, regulation or condition with respect to the Loan,
and the result of any of the foregoing is to increase the cost to the
LENDERS of making or maintaining the Loan or to reduce the amount of
any payment (whether of principal, interest or otherwise) receivable by
the LENDERS hereunder, then the BORROWER shall have the option to
either (i) prepay the Loan, together with interests accrued thereon,
without premium or penalty, and other sums due under this Agreement,
within sixty (60) calendar days from receipt of written notice from the
LENDERS of such additional cost or reduction of payment, or (ii) pay or
reimburse to the LENDERS such amount as will compensate them for
[ 10 ]
The BORROWER shall indemnify the LENDERS against any cost or loss in
connection with the unwinding or liquidating of any deposits, funding or
financing arrangement that the LENDERS may in good faith incur as a result of
any Loan not being made by the LENDERS due to the failure of the BORROWER
to satisfy the conditions specified in Section 6 on the proposed date of
Borrowing.
[ 11 ]
To induce the LENDERS to enter into this Agreement and to grant the Loan to
the BORROWER, the BORROWER represents and warrants to the LENDERS
(which representations and warranties shall survive the execution and delivery
of this Agreement and the making of the Loan) that:
d. Validity and Enforceability. This Agreement, the Note(s) and all other
documents to be delivered hereunder will constitute the legal, valid and
binding obligations of the BORROWER enforceable in accordance with
the terms hereof and thereof, and none of the provisions thereof, or any of
the procedures contemplated by any of the provisions thereof, is in
contravention of, or is illegal, void, voidable, prohibited or unenforceable
under the laws of the Republic of the Philippines.
j. Taxes. The BORROWER has prepared and filed with the appropriate
governmental authorities, national and local, all tax returns required to be
filed, and the BORROWER has paid all taxes shown to be due on such tax
returns and on all assessments received by it, to the extent that such taxes
and assessments have become due, or has provided adequate reserves for
the payment thereof. The BORROWER is not a party to any pending
action or subject of any proceeding by or before any governmental
authority for the assessment or collection of taxes.
k. Title. The BORROWER has good, indefeasible and marketable title to all
of its properties and assets, free and clear of all liens, encumbrances,
restrictions, pledges, mortgages, security interest or charges, except any
thereof as have been disclosed to the LENDERS in writing prior to the
date of this Agreement and encumbrances allowed under Section 5.02(a)
of this Agreement. All such properties are insured and such insurance
against operational risks and liabilities are in force, with coverage and
amounts as are customary for businesses of like nature.
l. Ranking. The Loan and the Note(s) will at all times be and remain the
direct and unconditional obligations of the BORROWER and will at all
times rank in pari passu in right of payment with all other unsecured
indebtedness of the BORROWER, whether now outstanding or hereafter
incurred.
n. Laws, Orders, Consents and Approvals. The BORROWER has complied with
all laws and lawful orders and has obtained all the necessary consents and
approvals in regard to the Loan and the conduct of its business
operations.
Each of the representations and warranties set forth in Section 4.01 above shall be
true and correct and deemed repeated on the date of each Borrowing and on the
first day of each Interest Period as fully as if made on each such date with respect
to the circumstances of the BORROWER existing at such time.
The BORROWER covenants and agrees, unless the LENDERS shall otherwise
consent in writing, that, so long as this Agreement is in effect, and until payment
in full and performance of all obligations hereunder, the BORROWER shall act
and shall perform the following:
a. Use of Proceeds. The BORROWER shall use the proceeds of the Loan for
the sole purpose stated in Section 2.08.
(i) within ninety (90) calendar days after the close of each semestral
period of the fiscal year of the BORROWER, unaudited
consolidated financial statements of the BORROWER, as of the end
of such semester, certified by an authorized officer of the
BORROWER;
(ii) within one hundred twenty (120) calendar days after the close of
the fiscal year of the BORROWER, copies of the annual audited
consolidated reports of the BORROWER, certified by independent
accountants of recognized standing acceptable to the LENDERS,
including balance sheets as of the end of such fiscal year and
earnings and surplus statements of the BORROWER for such fiscal
year; and
d. Taxes and Assessments. The BORROWER shall duly pay and discharge all
taxes, assessments and governmental charges or levies, of whatever
nature and by whomsoever levied, which are imposed or assessed upon it
or against its income or profits or upon any properties belonging to it
(including, without limitation, any taxes, levies and charges in connection
[ 15 ]
(ii) within five (5) calendar days after the occurrence of any event
which constitutes or which, with the giving of notice or lapse of
time or both, would constitute an Event of Default, notice of such
occurrence, together with a detailed statement by an authorized
officer of the BORROWER as to the nature thereof and the steps
taken and/or being taken by the BORROWER to cure such event.
m. Notice of Adverse Action. The BORROWER shall give each of the LENDERS
prompt written notice of:
q. Title. The BORROWER shall maintain, warrant and defend the rights,
title and interests of the LENDERS under the Loan Documents.
[ 18 ]
Until payment in full of the Loan and any other amount due under this
Agreement and the Note(s) and unless the LENDERS shall otherwise consent in
writing, which consent shall not be unreasonably withheld:
(iv) imposed by law such as possessory liens, workers liens and other
similar statutory liens; and
d. Merger or Consolidation. The BORROWER shall not enter into any merger
or consolidation, except where the BORROWER is the surviving
corporation; provided, however, that in such case, prior written notice is
given to the LENDERS.
e. Sale or Lease of Assets. The BORROWER shall not sell, lease or dispose of
all or substantially all of its business, properties or assets, except in the
ordinary course of business.
f. Loans, Investments and Advances. The BORROWER shall not make any
loans or advances to, or investment in/with, its directors, officers,
stockholders and other corporations, except for loans and advances to
Subsidiaries and Affiliates in the ordinary course of business. The
BORROWER shall not make any investment which will significantly and
adversely change the scope or nature of its business or operations.
The obligation of each LENDER to advance its Commitment on the date of the
Borrowing is subject to the following terms and conditions:
a. The BORROWER shall be in compliance with all terms and provisions set
forth herein on its part to be observed or performed, and no Event of
Default or any event which, with due notice or lapse of time or both,
would become an Event of Default shall have occurred and be continuing;
c. Each LENDER shall have received (i) the Note(s) duly executed by the
BORROWER corresponding to its Advance; (ii) the timely Notice of
Borrowing referred to in Section 2.02(b); and (iii) a Borrowing Certificate
duly executed by the BORROWER substantially in the form of Exhibit
C.
[ 21 ]
a. The BORROWER shall fail to pay the Loan when due, or any interest
thereon, or any penalty, fee or charge, or any other amount payable under
[ 22 ]
the Loan Documents, as and when the same becomes due and such
default remains unremedied for a period of two (2) calendar days after the
due date.
e. The BORROWER shall become insolvent or unable to pay its debts as they
become due, or shall commit an act of bankruptcy or insolvency, or shall
file any petition or action for relief under any bankruptcy, reorganization,
insolvency, moratorium or other laws for the relief of debtors, or there
shall be commenced against the BORROWER any proceeding under such
laws, or any judgment or order is entered by a court of competent
jurisdiction for the appointment of a receiver, trustee or the like to take
charge of all or substantially all of the assets of the BORROWER and such
proceeding, judgment or order is not discharged or revoked within thirty
(30) days (or such longer period as the BORROWER satisfies the
[ 23 ]
If an Event of Default shall have occurred, then at any time thereafter, if any such
event shall then be continuing, pursuant to the written instructions of the
LENDERS, the AGENT shall by written notice to the BORROWER (i) declare the
Commitment to be terminated, whereupon the obligation of the LENDERS to
make or maintain the Loan hereunder shall forthwith terminate; and (ii) declare
the entire unpaid principal amount of the Loan then outstanding, all interest
accrued and unpaid thereon and all other amounts payable hereunder, to be
forthwith due and payable, whereupon all such amounts shall become
[ 25 ]
In addition, the BORROWER shall indemnify and hold harmless the LENDERS
against any loss or expense which the LENDERS may sustain or incur as a
consequence of the occurrence of any default or Event of Default, including but
not limited to, such amount as the LENDERS may certify, such certification being
necessary to compensate the LENDERS for (i) any loss of interest incurred on
account of such default until the same is paid, and (ii) any interest or fees paid or
payable on account of any funds borrowed in order to cover the amount of the
unpaid Loan.
8.01 Appointment
Each LENDER hereby appoints the AGENT to act as its agent as herein specified
and irrevocably authorizes the AGENT to take such action on its behalf under
the provisions of the Loan Documents, and to exercise such powers hereunder as
are specifically delegated to the AGENT and such powers as are reasonably
incidental thereto. In performing its functions and duties hereunder, the AGENT
shall act solely as the agent of the LENDERS and does not assume and shall not
be deemed to have assumed any obligation towards, or relationship of agency or
trust with or for, the BORROWER. The AGENT may perform any of its duties
hereunder by or through its agents or employees.
[ 26 ]
The AGENT shall, to the extent practicable under the circumstances, consult with
each of the LENDERS prior to taking action on behalf of the LENDERS under
this Agreement. The AGENT shall not take any action contrary to the written
instruction of the LENDERS and shall take any lawful action in accordance with
the provisions of this Agreement prescribed in a written instruction of the
LENDERS. The AGENT may decline to take any action except upon the written
instruction of the LENDERS and the AGENT may obtain ratification by the
LENDERS of any action taken by it under the Loan Documents. In each case, the
AGENT shall have no liability to the BORROWER or any of the LENDERS for
any action taken by it upon the instructions of the LENDERS nor shall the
AGENT have any liability for any failure to act unless the AGENT has been
instructed to act by the LENDERS. Notwithstanding anything herein to the
contrary, the AGENT need not take any action on behalf of the LENDERS unless
and until it is indemnified to its satisfaction for any and all consequences of such
action.
In the performance of the duties and in the exercise of the rights and powers
vested in the AGENT by this Agreement, the AGENT shall use such degree of
care and skill as a prudent man would, under similar circumstances, exert or use
in the conduct of his affairs. Neither the AGENT nor any of its officers, directors,
employees or agents shall be liable for any action taken or omitted by them
hereunder or in connection herewith, except for its or their gross negligence or
willful misconduct. The AGENT shall not be responsible for any recital,
statement, representation, warranty or omission herein or in the information
supplied by the BORROWER, or for the authorization, execution, effectivity,
genuineness, validity or enforceability of the Loan Documents or any other
document executed or required in connection therewith, or be required (except
upon the written instruction of the LENDERS) to make any inquiry concerning
the performance or observance by the BORROWER of any of the terms,
provisions or conditions of the Loan Documents. Each of the LENDERS
represents and warrants to the AGENT that it has independently and without
reliance on the AGENT made its own credit investigation and appraisal of the
financial condition and affairs of the BORROWER on the basis of such
documents and information as it has deemed appropriate and that it has entered
into this Agreement on the basis of such independent appraisal, and credit
appraisal without reliance on the AGENT. The LENDERS agree to indemnify
and hold the AGENT free and harmless from and against any and all liabilities,
damages, penalties, judgments, suits, expenses and other costs of any kind or
nature against the AGENT in respect of its obligations hereunder, except where
[ 27 ]
the same shall arise on account of the AGENTs gross negligence or willful
misconduct.
The AGENT or any of its affiliates may, without liability to account therefor,
engage in any kind of business with the BORROWER as if it were not such agent
or affiliate. In addition, the AGENT shall be entitled to receive from the
BORROWER a portion of any fee in connection with this transaction (in an
amount not exceeding that which has been agreed upon by the AGENT and the
BORROWER in a separate agreement) without any liability to account therefor to
any of the LENDERS, except as the AGENT may have expressly agreed.
The AGENT shall notify each of the LENDERS of all notices served by the
BORROWER within one (1) Business Day from receipt thereof. Determination of
amounts of interest, penalty interest, default penalty and other sums due
hereunder contained in notices from the AGENT shall be conclusive and binding
on the BORROWER and each of the LENDERS, absent manifest error in
computation or transmission. The AGENT shall promptly furnish to each of the
LENDERS copies of notices, reports, financial statements and other documents
submitted by the BORROWER to the AGENT.
chosen from among the LENDERS and the AGENT shall turn over all
documents, papers and deeds in its custody in connection with this Agreement
to the successor agent. If no successor agent shall have accepted such
appointment within thirty (30) calendar days after the retiring agents giving
notice of resignation or the LENDERS removal of the retiring agent, the retiring
agent, on behalf of the LENDERS and with the prior consent of the BORROWER,
may appoint a successor agent which shall be a financial institution or a bank.
Upon the acceptance of any appointment as AGENT hereunder by a successor
agent, such successor agent shall thereupon succeed to and become vested with
the rights, powers, privileges and duties of the retiring agent, and the retiring
agent shall be discharged from its duties and obligations hereunder. After any
retiring agents resignation or removal hereunder as AGENT, the provision of
this Section 8 shall continue in effect for its benefit in respect of any action taken
or omitted to be taken by it while it was acting as the AGENT hereunder.
SECTION 9. MISCELLANEOUS
The BORROWER hereby gives the LENDERS a general lien upon, and/or right
of setoff, and/or right to hold and/or apply to the obligation of the BORROWER
all rights, titles and interests of the BORROWER in and to the balance of every
deposit account, now or any time hereafter existing, with the LENDERS, their
agents or correspondents, or any other claims of the BORROWER against the
LENDERS and in and to all money, negotiable instruments, commercial papers,
notes, bonds, stocks, dividends, interests, credits, chooses in action, claims,
demands or any interests therein, and in any other properties, rights and interest
of the BORROWER or any evidence thereof, which have been or at any time shall
be delivered to, or otherwise come into the possession, control or custody of, any
of the LENDERS or any of its agent or correspondents for any purpose, whether
or not accepted for the purpose or purposes for which they are delivered or
intended. For this purpose, the BORROWER hereby appoints the LENDERS
and/or the AGENT as its irrevocable attorney-in-fact with full power of
substitution/delegation, to sign and endorse any and all documents and perform
any and all acts and things required or necessary in the premises.
demand. The remaining balance of the BORROWERs deposit account after the
payment of the Loan shall become due and demandable upon the happening of
any or all of the acts or events mentioned in this paragraph, notwithstanding any
agreement to the contrary, and the LENDER concerned shall pay the
BORROWER such interests, penalties and other charges provided in the relevant
agreements or laws.
If any amount under the Loan Documents is past due or in default, the
BORROWER hereby irrevocably constitutes and appoints each of the LENDERS
as its attorney-in-fact with full power and authority and without the necessity of
prior notice, to negotiate, sell and transfer by public or private sale any of the
BORROWERs stocks, securities, bonds or personal properties of which such
LENDER may be in possession and to apply the proceeds of such sale or
disposition to the payment of the obligations of the BORROWER to such
LENDER.
Any payment made to the LENDERS hereunder shall be applied first against
costs, expenses, losses and indemnities due hereunder; then against fees due the
LENDERS; then against default and penalty interests, if any; then against past
due interest due on the Loan; then against past due principal; then against
current interest due on the Loan; and thereafter against the principal amount of
the Loan then due and payable.
The obligations of the AGENT and the LENDERS under this Agreement are
several and nothing in this Agreement shall be deemed to create a partnership or
joint venture among any of the LENDERS and the AGENT. The amounts
payable at any time hereunder to each LENDER shall be a separate and
independent debt and each LENDER shall be entitled to protect its right arising
out of this Agreement and it shall not be necessary for any other LENDER or the
AGENT to be joined as an additional party in any proceedings for such purposes;
provided, that in all instances provided in this Agreement where the LENDERS
are required to make a unanimous decision, each LENDER hereby agrees not to
take any action whatsoever contrary thereto or inconsistent therewith.
[ 30 ]
The BORROWER agrees to pay all reasonable costs and expenses, including legal
expenses and fees of counsel, in connection with the negotiation, preparation,
execution and delivery of the Loan Documents and any other document or
instrument required to be executed in relation thereto, as well as reasonable costs
and expenses, if any, and any and all taxes, in connection with the registration,
notation, amendment and enforcement of the Loan Documents and other
documents required to be executed in connection therewith and the issue of any
consents or waivers in connection herewith. The BORROWER shall save the
LENDERS from any and all liabilities with respect to or resulting from any delay
or omission to pay the fees, expenses and taxes, if any, which may be payable or
determined to be payable in connection with the execution, delivery and
enforcement of the Loan Documents and all other documents or instruments
related thereto.
No failure or delay on the part of any LENDER in exercising any right, power or
remedy accruing to it upon any breach or default of the BORROWER under the
Loan Documents shall impair any such right, power or remedy, nor shall it be
[ 31 ]
This Agreement and the documents referred to herein constitute the entire
agreement of the parties with respect to the subject matter hereof and shall
supersede any prior expressions of intent or understanding with respect to this
transaction. No amendment or waiver of any provision of this Agreement shall
in any event be effective unless the same shall be in writing and signed by the
LENDERS and the BORROWER, and such amendment or waiver shall be
effective only in the specific instance and for the special purpose for which given.
9.09 Notices
All communications and notices provided for hereunder shall be in writing and
shall be delivered addressed as follows:
If upon default by the BORROWER, the LENDERS shall engage the services of
legal counsel, the BORROWER agrees to pay (i) attorneys fees equal to fifteen
percent (15%) of the total amount due from the BORROWER to the LENDERS,
but in no case less than PHILIPPINE PESOS TWENTY THOUSAND
(Php20,000.00), exclusive of all expenses of collection and all costs, and (ii)
liquidated damages equal to fifteen percent (15%) of the total amount due but in
no case less than PHILIPPINE PESOS TWENTY THOUSAND (Php20,000.00).
9.11 Venue
The BORROWER irrevocably consents that any legal action, suit or proceeding
arising out of or relating to the Loan Documents may be instituted at the option
of the LENDERS, in any competent court of Makati City, or where any of the
principal offices of the LENDERS is located. The foregoing, however, shall not
limit or be construed to limit the right of the LENDERS to commence
proceedings against the BORROWER in any other venue where assets of the
BORROWER may be found.
[ 34 ]
This Agreement shall be binding upon and shall be enforceable against the
BORROWER and the LENDERS and their respective successors, endorsees and
assignees, provided that the BORROWER may not assign or transfer any of its
rights or obligations hereunder except with the prior written consent of the
LENDERS. Each of the LENDERS reserves the right to further assign, transfer,
novate or effect a sub-participation to one or more parties of any portion/s of
their respective rights and obligations under the Loan Documents, subject to the
prior written consent of the BORROWER, which consent shall not be
unreasonably withheld.
9.13 Severability
In case any one or more of the provisions contained in the Loan Documents or
any document executed in connection therewith shall be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall not in any way be affected
or impaired thereby.
9.14 Counterparts
The LENDERS hereby waive any and all preference to which they are entitled
pursuant to Article 2244(14)(a) of the Civil Code of the Philippines, arising out of
or in connection with the Agreement and/or the Note(s) having been notarized
(whether with or without the knowledge of the BORROWER).
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the
date written above at Makati City, Philippines.
By:
MANUEL Q. BENGSON
Senior Managing Director and Treasurer
RENATO O. MARZAN
Managing Director
By:
VICENTE R. AYLLON
Chairman of the Board
By:
JOEY A. BERMUDEZ
President
MARTIN T. LEE
Senior Vice President
By:
VICTOR G. GARLITOS
Director
MELECIO C. PAMATMAT
Acting Deputy Director
By:
WILFRED BLACKBURN
President and Chief Executive Officer
MOLLY C. UYECIO
Chief Financial Officer
By:
SUSAN R. FIGUERAS
President
HELEN T. ABDON
Vice President
By:
MANUEL C. PICZON
Vice President and Trust Officer
JOSEFINO C. CERIN
Head Investment and Trading Dept.
By:
ROSALINDA VERGARA
Assistant Vice President and Trust Officer
By:
RONNIE B. ALCANTARA
President
____________________ ____________________
[ 38 ]
Schedule I
LENDERS AMOUNT
EXHIBIT A
FORM OF NOTE
PROMISSORY NOTE
Value Date :
PN No. :
This Note is one of the Note(s) referred to in, and is subject to the terms and
conditions of, the Agreement between the BORROWER and the syndicate of lenders,
namely, The Insular Life Assurance Company, Ltd., Chinatrust (Phils.) Commercial
Bank Corporation, The BSP Provident Fund, Pioneer Allianz Life Assurance
Corporation, Insular Life Savings & Trust Company, Land Bank of the Philippines and
Insular Investment & Trust Corporation. If an Event of Default as defined in Section
7.01 of the Agreement shall occur, the principal of, and accrued interest including
default and penalty interest on, this Note, may be declared due and payable in the
manner and with the effect provided in the Agreement, presentment, demand, protest or
notice of any kind being expressly waived by the BORROWER.
The Agreement provides for the acceleration of the maturity of this Note upon
the occurrence of certain events and upon the terms and conditions specified therein.
This Note shall be governed by, and construed in accordance with, the laws of
the Republic of the Philippines.
AYALA CORPORATION
By:
(Name)
(Title)
[ 40 ]
Exhibit B
NOTICE OF BORROWING
[ Date ]
Attention : ________________________
Gentlemen:
Terms used herein and defined in the Agreement shall have the same
meaning ascribed to them therein, unless otherwise defined herein.
AYALA CORPORATION
By:
____________________
(Name)
(Title)
[ 41 ]
Exhibit C
_______________________
(Date of Borrowing)
Attention : ________________________
Gentlemen:
(a) no event has occurred which constitutes, or which with the giving of
notice or the lapse of time or both would constitute, an Event of Default
under the Agreement;
Terms used herein and defined in the Agreement shall have the same
meaning ascribed to them therein.
AYALA CORPORATION
By:
_____________________
(Name)
(Title)
[ 42 ]
Exhibit D
[Date]
Attention : ________________________
Gentlemen:
Unless otherwise defined herein, terms used herein and defined in the
Agreement shall have the same meaning ascribed to them therein.
In our capacity as legal counsel for the BORROWER, we have reviewed all
pertinent laws, rules and regulations of the Republic of the Philippines, and
examined the Loan Documents and such documents, agreements, records and
matters as we have considered necessary or desirable for the opinions hereinafter
expressed.
The opinions hereinafter set forth are limited to matters of Philippine law,
and no opinion is expressed as to the laws of any jurisdiction other than the
Philippines.
(b) The BORROWER has full power, authority and legal right to execute,
deliver and perform its obligations under the Loan Documents and all
other relevant documents to be delivered thereunder, and has taken all
necessary corporate and legal action to authorize each of the foregoing.
(c) The BORROWER possesses the patents, copyrights, trademarks and trade
names needed to conduct its business.
(d) The Loan Documents and all other documents to be delivered hereunder
will constitute the legal, valid and binding obligations of the BORROWER
enforceable in accordance with the terms hereof and thereof, and none of
the provisions thereof, or any of the procedures contemplated by any of
the provisions thereof, is in contravention of, or is illegal, void, voidable,
prohibited or unenforceable under the laws of the Republic of the
Philippines.
(e) The execution, delivery and performance of the Loan Documents and all
other relevant documents to be delivered thereunder do not and will not
violate, in any respect, any provision of, or result in the breach of, or
constitute a default under (i) any law, rule, order, writ, decree,
determination or award of any governmental authority, agency or court
presently in effect having application to the BORROWER; (ii) the Articles
of Incorporation, By-Laws or other corporate rules of the BORROWER; or
(iii) any agreement or undertaking or instrument to which the
BORROWER is a party or which purports to be binding upon it or its
assigns.
(i) The BORROWER has prepared and filed with the appropriate
governmental authorities, national and local, all tax returns required to be
filed, and the BORROWER has paid all taxes shown to be due on such tax
returns and on all assessments received by it, to the extent that such taxes
and assessments have become due, or has provided adequate reserves for
the payment thereof. The BORROWER is not a party to any pending
action or subject of any proceeding by or before any governmental
authority for the assessment or collection of taxes.
(j) The BORROWER has good, indefeasible and marketable title to all of its
properties and assets, free and clear of all liens, encumbrances,
restrictions, pledges, mortgages, security interest or charges, except any
thereof as have been previously disclosed to the LENDERS. All such
properties are insured and such insurance against operational risks and
liabilities are in force, with coverage and amounts as are customary for
businesses of like nature.
[ 45 ]
(k) The Loan and the Note(s) will at all times be and remain the direct and
unconditional obligations of the BORROWER and will at all times rank in
pari passu in right of payment with all other unsecured indebtedness of
the BORROWER, whether now outstanding or hereafter incurred.
(l) The BORROWER has complied with all laws and lawful orders and has
obtained all the necessary consents and approvals in regard to the Loan
and the conduct of its business operations.
Exhibit E
[Date]
Attention : ________________________
Gentlemen:
(a) the signature or initials on the originals of each of such documents are
genuine;
(c) all matters of fact stated in such documents are true and correct; and
(d) all such documents executed by you have been executed and delivered
pursuant to due authorization.
Subject to and based upon the foregoing, we confirm that [i] all
requirements of Philippine law in connection with the due authorization,
execution and delivery of the Loan Documents have been complied with, and [ii]
all relevant documents including those submitted by the BORROWER pursuant
to Section 6 of the Agreement are in satisfactory legal form and substantially
comply with the requirements of that Section as conditions precedent to the
making of the Advances to the BORROWER.
By:
________________________